It isn't Justice Sam Alito's court — but Monday was about his far-right extremism
The Supreme Court's extreme decisions lead to more extremism — from justices, lower courts, and lawyers.
On Monday, we saw how the far-right extremism of the U.S. Supreme Court’s decisions in recent terms has created an environment where there is a constant rippling out of ever more efforts at moving that extremism even further right.
At one point, around 5 p.m., it appeared that Justice Sam Alito had allowed his stay keeping Texas’s criminal immigration law on hold to expire. That would have meant that S.B. 4 would have gone into effect. It would have done so, as I covered here previously, on the basis of an unreasoned order from the U.S. Court of Appeals for the Fifth Circuit staying a 114-page district court ruling that led to a preliminary injunction against enforcement of the law. It also would have meant that Alito did so in the face of the federal government’s argument that allowing Texas’s law to go into effect would ignore the 150-year history of rules surrounding immigration enforcement.
When Alito’s self-imposed 5 p.m. deadline passed, reporters — yours truly included — reported that the law had gone into effect. This is, we all recalled, what happened with Texas’s vigilante enforcement abortion law, S.B. 8, a few years ago.
At 5:04 p.m., however, reporters received word that Alito had extended the stay “pending further order of the undersigned or of the Court.”
So, S.B. 4 remains on hold.
[Update, 5:10 p.m. March 19: The U.S. Supreme Court allowed S.B. 4 to go into effect on Tuesday. Read the Law Dork report.]
As of now, I don’t know what happened. I don’t know if the stay lapsed for a few minutes, as is what appears to have happened, or if there was a delay informing the press and public of an order that came from Alito just before 5 p.m.
Despite the significant confusion caused by the timing, no one was saying on Monday night when Alito’s order was issued or when the parties were informed. Neither Texas Solicitor General Aaron Nielson nor the Supreme Court’s Public Information Office responded to requests seeking information about when the order was received or entered, respectively. A spokesperson in the U.S. Justice Department’s Office of Public Affairs emailed that they were “not able to confirm” when DOJ was informed of Alito’s order.
Now, it is possible that there were behind-the-scenes goings-on at the Supreme Court that led to this strangeness. Maybe Alito didn’t want to extend the stay, but Chief Justice John Roberts or others convinced him to do so. (As I posited at dinner, perhaps he was told that a majority of the full court would do it if he wouldn’t. Who knows? Not me!)
But, no one is saying what happened — despite the fact that, for four minutes, it appeared that Alito had fundamentally (and single-handedly) changed the way immigration law worked in America.
That was not, however, the only sign of a legal system where far-right extremism is encouraged on Monday.
The justices heard oral arguments earlier in the day in a pair of cases raising the question of when government actions urging private companies to take actions against third parties go too far, for purposes of the First Amendment.
Essentially — almost everyone ultimately agreed — the questions come down to coercion.
“You have to demonstrate some coercive threat, some invocation of regulatory adverse action,” the ACLU’s legal director, David Cole, said in the second case of the day, where the ACLU is representing the National Rifle Association in its challenge to New York’s effort to get insurers to stop doing business with the NRA. (Even in NRA v. Vullo, it appears to be quite a sign that the ACLU believes the best way to get a good ruling for advocacy groups on this First Amendment question is by having the NRA as a plaintiff.)
The government is, in most situations, going to be violating the First Amendment if it coerces the company into doing something that the government couldn’t do itself because of First Amendment limits.
The first case, Murthy v. Missouri, is over the Biden administration’s efforts to get social media companies to take action preventing Covid and election disinformation. It might have had a similar feel to the second case were it not for a combination of three things: the questionable presentation of facts by the plaintiffs and courts below, a vigorous dispute over standing, and the extreme legal position taken by the states and private parties challenging the government.
All three of these extreme positions were, more or less, encouraged by the Fifth Circuit since it got the case last summer. On Monday, though, Alito was the main voice defending the challengers from the bench — even pushing back against questions from his fellow conservative justices. (Alito also had a weird thing about trying to bring the press into the case, but, in doing so, he instead showed a complete lack of understanding of how journalists and government officials and employees interact — something that both Justices Brett Kavanaugh and Elena Kagan had to point out.)
Read the Law Dork Q&A previewing the arguments in Murthy v. Missouri here.
THE FACTS: After disputes over the facts in multiple recent cases have led to lingering questions about the court’s rulings, Justice Sonia Sotomayor was not going to let these questions go by in the Murthy case.
Addressing Louisiana Solicitor General Ben Aguiñaga, representing the challengers, Sotomayor bluntly challenged him, connected the factual questions to the standing question:
I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn't happen to. At least in one of the defendants, it was her brother that something happened to, not her. I don't know what to make of all this …. I'm not sure how we get to prove direct injury in any way.
To this, Aguiñaga began by responding with an apology:
Although he didn’t directly take back or change anything, it was an astounding moment in an argument that could have gone off in a very different direction — one that we later saw Alito had wished it had gone.
During the seriatim questioning — when the justices go one-by-one asking questions at the end of each lawyer’s argument — Alito attempted to rehabilitate the challengers’ position, asking his former clerk a friendly question trying to get things back on (what he apparently saw as) the right track.
It wasn’t happening.
STANDING: When Kagan followed Alito, she pushed even further on the standing questions, asking how the challengers can “say it's the government rather than Facebook” leading to these decisions, prompting Aguiñaga to respond that “you could say the same thing about how do you know it's Facebook, not the government.“
At which point, Kagan agreed, telling him he was “exactly right,” which — bluntly — is something you almost never want to hear Kagan tell you at oral argument. It generally means it’s over. “I guess if you're going to use standard ideas about traceability and redressability,” Kagan said of two of the three requirements for standing, “I guess what I'm suggesting is I don't see a single item in your briefs that would satisfy our normal tests.”
THE LAW: Again, on the merits, while most of the advocates — and justices — on Monday were focusing on coercion, and the 1963 Bantam Books v. Sullivan case addressing when government action directed at a speech intermediary amounts to “informal censorship,” it was telling that Aguiñaga was still pushing further right.
The Fifth Circuit’s ruling — which sided with the challengers on several key issues — discussed its test as addressing coercion or significant encouragement and relied upon the 1982 Blum v. Yaretsky case that set forth a test for finding state action. That was, most of the discussion on Monday suggested, a test the majority of the court wasn’t likely interested in using.
But, for Aguiñaga, it wasn’t even far enough — as this stunning exchange with Justice Amy Coney Barrett made clear.
When Aguiñaga said that “one potential mechanism is coercion. Another one is encouragement,” Barrett asked: “Just plain vanilla encouragement, or does it have to be some kind of, like, significant encouragement? Because encouragement would sweep in an awful lot.”
“If you want” precedent, sure, I guess we could do that, Aguiñaga essentially told Barrett — after giving his “top-line answer” of what he feels like it should be.
Why argue precedent when you could argue vibes?
Because that’s exactly what the 6-3 majority’s decisions encourage.
How many times can one say that Alito has jumped the shark without acknowledging that perhaps he is the shark?
You could say the same thing, how do you know it's facebook and not the government. Wow, just wow.