Open Thread: SCOTUS Decisions, Wednesday Edition [UPDATE-2]

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[NB: check the byline, thanks. Updates appear at the bottom of this post. /~Rayne]

Yet again a week later we’re still counting down to the Supreme Court’s term ending on June 28; SCOTUS delivers a few more decisions today with the remainder spread across tomorrow Thursday, and Friday the last day of the term.

Once more we ask: will SCOTUS finally decide the question of presidential immunity posed in Trump v. United States? Or will we not see a decision until tomorrow or Friday?

Decisions released today follow in an update at the bottom of this post.

~ ~ ~

Time-killing observations:

Trump’s case for presidential immunity was the first sub-topic when I searched Google News for “supreme court.” Apparently corporate news media is concerned about this and willing to invest a little human capital about it.

This, however, is just plain disturbing. Who knew House Speaker Mike Johnson would be a minion for that dirtbag Bannon after Bannon refused to comply with a Congressional subpoena? Doesn’t Johnson expect persons his Congress might subpoena to comply?

~ ~ ~

Today’s decisions —

First decision: Murthy v. Missouri

Justice Coney Barrett wrote the 6-3 decision; Justice Alito wrote the dissent.

This is the First Amendment case about the Biden administration’s efforts to stem disinformation on social media. The states and individual plaintiffs were found to lack standing and the Fifth Circuit erred in lumping the states and the plaintiffs together. The Fifth Circuit’s decision is reversed.

A little statistical analysis:

“Vaccine” and “vaccines” appear (65) times in total in the decision and dissent.

“Misinformation” appears (91) times.

“Disinformation” appears (3) times and not at all in the dissent.

“Ivermectin” does not appear at all.

Second decision: Snyder v. United States

Justice Kavanaugh wrote the 6-3 decision; Justice Brown Jackson wrote the dissent.

In essence this was a case about public corruption; is an amount of money paid to a public official after goods/services have been rendered a bribe or a gratuity if there’s no quid pro quo?

You’ll be shocked, SHOCKED at which way the GOP-appointed jurists went.

Third decision: That’s it, there isn’t a third one today, and definitely not a presidential immunity decision.

~ ~ ~

Updates with news related to the SCOTUS decisions today will appear at the bottom of this post. This is an open thread.

~ ~ ~

UPDATE-1 — 1:15 P.M. —

Bloomberg got the scoop on a decision which wasn’t released today: Supreme Court Poised to Allow Emergency Abortions in Idaho

Kimberly Robinson who is on Bloomberg’s byline, posted this on the dead bird app:

Kimberly Robinson @KimberlyRobinsn

BREAKING: #SCOTUS inadvertently released its opinion in EMTALA abortion case earlier this morning. The Justices are poised to allow emergency abortions in Idaho, suggesting the Court shouldn’t have gotten involved in the early litigation.

12:49 PM · Jun 26, 2024

Bloomberg’s article is paywalled; you can read similar coverage at The Guardian: US supreme court set to allow emergency abortions in Idaho – report

So…is this accidental leak a head fake of some sort? A means to relieve pressure? Will it come up in the presidential debate if the decision isn’t formally released until Friday?

(h/t community member c-i-v-i-l for the heads up)

~ ~ ~

UPDATE-2 — 6:10 P.M. —

The Washington Post has a story now about the briefly posted decision in Moyle v. United States and Idaho v. United States. The decision was accidentally published ahead of schedule and quickly removed from SCOTUS’s website, but not before a copy was obtained.

I’m not going to elaborate on this now because it’s not formally a decision until it is published. When it finally is, it’s going to be a must-read based on the concurrences — the tea leaves to be read ahead of future cases about reproductive health care.

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91 replies
  1. Rwood0808 says:

    Hmmm….

    Two thoughts:

    SCOTUS will kick the can on immunity.

    What dirt does Bannon have on Johnson?

    • ButteredToast says:

      I think Johnson is more than willing on his own to be a stooge for Bannon and Trump. No blackmail necessary to convince someone motivated by lust for power and ideological/religious extremism.

  2. Rayne says:

    One box day, they’re saying, which means a smaller number of decisions.

    Please let them get presidential immunity out of the way. PLEASE.

    • PJB2point0 says:

      How certain are you that this friday is the last day decisions will be released? I have finally internalized not to make assumptions based on norms!

      • Rayne says:

        I’m going based on what SCOTUS has indicated, that the decisions they have will be spread out over three days this week.

        Am I certain the decisions they will release will contain *all* the cases before them? Nope. But I have to go based on what I have before me.

        They must know failing to deliver the presidential immunity decision will result in a shit storm.

        • David F. Snyder says:

          Given this court, I presume that since they’ve waited this long to hand down a decision after stalling in taking up the case, there’s going to be a shit storm upon delivery.

        • Scott_in_MI says:

          Reply to
          David F. Snyder
          June 26, 2024 at 11:33 am

          There was always going to be a shit storm over that decision. It’s just a question of who’s losing their shit.

  4. Rayne says:

    You know what’s the most AMAZING kick in the teeth about Snyder v. United States?

    Kavanaugh wrote it — the guy whose beaucoup debt was paid off and we still don’t know who/what/how/when/why.

    Was the debt payment a goddamned gratuity for agreeing to be nominated?

    Will Thomas say the hundreds of thousands of dollars in gifts he’s received are just gratuities?

    What fucking horseshit. No public servant should receive gratuities, period.

    • Sussex Trafalgar says:

      The six conservatives on the SCOTUS now count on Congress—House and Senate—being unable to pass any legislation that restricts or sets restrictions on the SCOTUS.

      The six conservatives continue to write opinions like Kavanaugh’s almost daring Congress to restrict them, but knowing Congress is unable to.

    • Ithaqua0 says:

      As far as I can tell, they’ve just handed down an instruction manual on how to do it “legally,” absent the phrase “… and don’t leave an email trail.” And, as you point out, the implicit intro “Here’s how we do it.”

    • Fraud Guy says:

      So, how does one indicate that one might deliver a gratuity should the public official act in one’s favor.

      Also, too, this guts a busload of corporate governance restrictions as to bribery both here and abroad. I guess I can throw out that chunk of my compliance training.

    • scroogemcduck says:

      “Gratuities” my ass. They’re fucking bribes! Well done Justice Jackson for not pulling any punches in the dissent.

    • Spencer Dawkins says:

      Thank you for that reminder about Kavanaugh’s miraculous financial recovery. I hope someone remembers it when it’s possible to investigate his background before he was confirmed.

      • xyxyxyxy says:

        Why can’t Senate investigate him now? Of course Durban won’t for some reason investigate Thomas & Alito, so why Kav?

    • xyxyxyxy says:

      His own Gym Jordan ignored subpoena, what would Johnson do if Gym was charged? Order J6ers to attack the the DOJ?

  5. John B.*^ says:

    My wag is that the presidential immunity decision comes on Friday, the day after the first debate. I just can’t see Roberts letting that cat out of the bag on Thursday morning of the evening debate.

    • Rayne says:

      Yeah, and I think they dump not just the immunity decision but the next two most challenging decisions with it to muddle the entire reaction by the public.

    • Raven Eye says:

      Agree. Releasing the immunity decision prior to the debate, no matter which way it goes, would scramble all of the preparation. And talk about an elephant in the room (and perhaps a very large donkey).

    • Amateur Lawyer At Work says:

      Same with the abortion cases. Not before the debate when TFG’s nominees will be center-stage. Each of them wants only 8 companions on the Court and releasing the bad decisions before the debate might mean more than 8 companions.

      [Welcome back to emptywheel. Please use the same username AND EMAIL ADDRESS each time you comment so that community members get to know you. The email address you used on this comment does not match the one you used on your last comment. We do not require a working/valid email, only that you use the same one each time you comment. /~Rayne]

    • xyxyxyxy says:

      Why would they even rule on it? They’ve already given us the middle finger so why would they care? Are we going to revolt and would they care if we did?

    • P-villain says:

      100%. The made-up “major questions doctrine” was just a way station on the path to blowing up the core principle of administrative law.

      • PJB2point0 says:

        There is another SCOTUS decision we await that is of a piece with the dismantling of ad law, Jarkesy v SEC. At issue is whether a defendant in an SEC proceeding is entitled to a jury trial but the strict legal issue has to do with the non-delegation doctrine with respect to the appointment of ALJs that hear these cases. Should the Court, as is likely, rule for Jarkesy, it would eviscerate the SEC’s public administrative procedure program which accounts for the overwhelming majority of SEC enforcement cases.

    • John B.*^ says:

      yep…in any other year, this would be the “big decision” but with auto coups and stealing of government nuclear secrets it’s taken a back seat…

  7. P-villain says:

    For the numerologists and demonologists among us, Snyder was interpreting a subdivision of section 666 of title 18 (6 times 3) of the US Code. The 6 members of the majority gave 6 reasons to support their view of 666.

  8. Fiendish Thingy says:

    So, just to clarify:

    Quid Pro Quo = illegal bribery

    Quo…Quid = perfectly acceptable gratuity for services rendered.

    • Rayne says:

      I think it’s quid post aliquid — something after something.

      Why, one would never work harder for a client in order to obtain a gratuity. Just ask the millions of tipped service workers across the U.S.

  9. 2Cats2Furious says:

    First in the mifepristone case, and now in Murthy v Missouri, the majority of SCOTUS has reversed the 5th Circuit for allowing a preliminary injunction when the plaintiffs lacked standing – a bedrock principle that all 1st year law students understand.

    Will the 5th Circuit learn from these obvious legal errors? Probably not. On a related note, Dick Durbin needs to stop allowing the practice of blue slips. Given that most COA judges are selected from District Court judges, the 5th Circuit will continue to be fucked up for some time by RWNJs because TX, LA, and MS all have 2 GOP US Senators. We should understand by now that if Trump somehow manages to win re-election and the GOP re-takes the Senate, the majority will drop blue slips like a hot potato. Durbin needs to stop bringing balloons to a knife fight.

    • Sussex Trafalgar says:

      Agreed.

      The issues you cite have all the footprints of members of the Federalist Society.

      Steven Calabresi and his co-founders of the Federalist Society in 1982 created a conservative movement that targeted, among other targets, the American Bar Association. This movement was designed to create a reputable alternative to the ABA, among other goals.

      The ABA is not the right organization to go after the Federalist Society. Instead, the Democrats should create a new grassroots organization challenging the Federalist Society.

      That’s one thing Durbin should be doing.

      • Purple Martin says:

        One was formed in 2001 explicitly as a liberal alternative to the Federalist Society:.

        The American Constitution Society for Law and Policy (ACS) is the nation’s foremost progressive legal organization, with a diverse nationwide network that includes nearly 200 student and lawyer chapters, and progressive lawyers, students, judges, scholars, elected officials, and advocates.
        https://www.acslaw.org

        To compete with FedSoc on an even playing field, the issue is not creating it, it’s getting someone to donate a billion dollars to a dark money foundation, easily tappable by the ACS leader.

        Oh, and leadership completely uninterested in anything beyond power-mongering results. Yes, it’s a conundrum.

        • Spencer Dawkins says:

          So, I’m thinking I should be grateful to Trump for offering his soul to the energy industry for a billion dollars, because if Trump has that billion dollars, the Federalist Society doesn’t?

          I don’t want to live on this planet any more …

        • Purple Martin says:

          Oh, that wasn’t conjecture…it already happened. Per ProPublica:

          How a Secretive Billionaire Handed [$1.6billion of] His Fortune to the Architect of the Right-Wing Takeover of the Courts
          In the largest known political advocacy donation in U.S. history, industrialist Barre Seid funded a new group run by Federalist Society co-chair Leonard Leo, who guided Trump’s Supreme Court picks and helped end federal abortion rights.
          https://www.propublica.org/article/dark-money-leonard-leo-barre-seid

          But please don’t leave the planet…we’d all miss you.

  10. Ed Walker says:

    SCOTUS: we can twist any law to protect the elites from criminal accountability. We don’t do that for the rest of you slugs.

  11. c-i-v-i-l says:

    Kimberly Robinson (SCOTUS reporter for Bloomberg Law):
    “BREAKING: #SCOTUS inadvertently released its opinion in EMTALA abortion case earlier this morning. The Justices are poised to allow emergency abortions in Idaho, suggesting the Court shouldn’t have gotten involved in the early litigation.”
    https://x.com/KimberlyRobinsn/status/1806006927022780843

    Apparently the opinion was briefly posted on the SCOTUS website and then removed.

        • Rayne says:

          Thanks for that. Explains why we haven’t seen it, then, they’re concerned about finality.

      • c-i-v-i-l says:

        Looks like this is the draft decision:
        https://www.law.cornell.edu/supremecourt/text/23-726
        I wonder why this was posted to Cornell Law School’s Legal Information Institute when it’s still a draft. Perhaps the LII is set up to automatically grab and post opinions that appear even briefly on the SCOTUS website?

        Will be interesting to see whether there are any changes to the final versions of the concurrences/dissents.

        • c-i-v-i-l says:

          That draft has:

          “Per Curiam.
          “The writs of certiorari before judgment are dismissed as improvidently granted, and the stays entered by the Court on January 5, 2024, are vacated.”

          Justice Kagan, with whom Justice Sotomayor joins, and with whom Justice Jackson joins as to Part II, concurring.
          Justice Barrett, with whom The Chief Justice and Justice Kavanaugh join, concurring.
          Justice Jackson, concurring in part and dissenting in part.
          Justice Alito, with whom Justice Thomas joins, and with whom Justice Gorsuch joins as to Parts I and II, dissenting.

    • c-i-v-i-l says:

      Chris Geidner:

      1. An unissued opinion is not a decision, hence not necessarily final.
      2. At this point, though, it would appear that it’s not just a filler document due to the case-specific nature.
      3. Is Bloomberg going to publish the document so the rest of us can assess this, or no?

      tl;dr: I would be *very* careful with this.

      To be clear, I am not doubting the factual nature of what happened. I just would be more careful than Bloomberg is in their wording. It is *not* an opinion or opinions. It is, ultimately, a draft. It wasn’t issued today. There was a reason for that, and we don’t know it.

      https://bsky.app/profile/chrisgeidner.bsky.social/post/3kvtsiwom7c2c

      • Purple Martin says:

        To speculate, the reason is to release it and at least a couple more big ones, along with the Trump Immunity decision, to increase the overall noise level and thus make it more difficult for meaningful analysis to get traction.

    • earlofhuntingdon says:

      The Supreme Court majority might have leaked this opinion for various reasons. But, after Dobbs, that it was posted “inadvertently” is laughable.

  12. Ed Walker says:

    Both parties claim the other is corrupt. Maybe they could agree that bribery is bad and pass a law?

  13. harpie says:

    From The Guardian piece Rayne links to, about the paywalled Bloomberg scoop:
    Moyle v. United States, No. 23-726, and Idaho v. United States, No. 23-727
    [Thank you c-i-v-i-l!]

    US supreme court set to allow emergency abortions in Idaho – report
    Copy of opinion reinstating lower court’s order reportedly posted briefly on supreme court’s website https://www.theguardian.com/world/article/2024/jun/24/israel-fund-us-university-protest-gaza-antisemitism Wed 26 Jun 2024 13.10 EDT // Last modified on Wed 26 Jun 2024 13.26 EDT

    […] A majority of justices will reportedly dismiss the case as “improvidently granted”, meaning the supreme court should not have accepted the case. The reasoning behind the dismissal is not clear, but it would reinstate a lower court’s order that had allowed Idaho hospitals to perform abortions in cases where a woman’s health may be endangered, Bloomberg reported. The state’s law currently only allows abortions when a woman’s “life” is in danger – a much higher threshold.

    Lifting this order would allow litigation to continue at a lower court.

    The copy of the opinion obtained by Bloomberg may not be final and could be changed. In Bloomberg’s copy, the justices vote 6-3 to dismiss the case, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – all conservatives – joining the dissent. […]

  14. Rayne says:

    Ah. The media is beginning to clue in:

    The Guardian view on Netanyahu’s leadership: making enemies and clinging to far-right friendsEditorial
    Putting his own interests above his country’s is nothing new for the Israeli prime minister, but it is increasingly blatant

    Wed 26 Jun 2024 13.25 EDT

    While Benjamin Netanyahu picks fights at home and abroad, he is more closely tied than ever to the worst parts of the domestic political realm. Last week, Israel’s prime minister laid into its chief ally, the US, which has reproved him but done little to stop the war in Gaza, or avert the looming and surely disastrous conflict with Hezbollah. On Monday, Israel’s ambassador to the UN, Gilad Erdan, labelled António Guterres an “accomplice to terror” and alleged his sole aim had been “to help Hamas survive this war”, after the secretary-general accused Israel (without directly naming it) of spreading misinformation about him.

    Yet Mr Netanyahu will go to any lengths to keep his far-right coalition partners in the fold. He granted political legitimacy to the Otzma Yehudit party of Itamar Ben-Gvir, the national security minister, and to the Religious Zionist party of the finance minister, Bezalel Smotrich, when he invited them into power in 2022. He clings to them increasingly desperately. Without them, he faces not only the loss of his position but trial on the corruption charges that have hung over his head for so long. The far right saw off US attempts to reach a ceasefire and hostage deal, laying bare the growing rift between the Israel Defense Forces and the government. …

    About fucking time.

  15. RitaRita says:

    Regarding the “debate” tomorrow night, will Biden make any comments about Trump’s handling of classified documents? Or will he feel constrained by the on-going criminal case so that he won’t comment?

    The photos that SC Smith has been including as Exhibits speak volumes. But how many people are aware of the photos?

  16. Savage Librarian says:

    Gratuitous

    No surprise the 6 of 9
    jumped into their MAGA line
    After all it’s by design
    the way their greed is always fine

    For them there’s no incongruity
    in accepting a hefty gratuity
    It fits well with their vacuity
    and their ethical promiscuity

    It’s just another inside job
    like a bank clerk for the mob
    paid after a heist with a thingamabob
    and the status of a grand hobnob

    Or a perfect phone call and a favor
    with a context and a flavor
    Something simple here to savor:
    What’s the offer, what’s the waiver

    What about a data dump
    You know the smear jobs done for Trump
    Smirnov’s not the only one to jump
    or to be caught inside a corrupt slump

  17. MsJennyMD says:

    Kavanaugh wrote it is not a crime for politicians to “accept gratuities … that may be given as a token of appreciation after the official act.”
    Bribe – money given to a politician before a favor. Gratuity – money given to a politician after a favor.
    Rewarding criminal behavior. And this from 6 on the Supreme Court.

  18. harpie says:

    Letters from an American: 6/26/24
    https://heathercoxrichardson.substack.com/p/june-26-2024 Heather Cox Richardson:

    […] In a secret vote yesterday [6/25/24] by a House panel that fell along party lines, House Republicans also agreed to say that the last Congress’s construction of the January 6th committee was invalid and illegal. This enabled them to back a last-ditch effort by Trump ally Steve Bannon to stay out of jail. After Bannon refused to respond to the committee’s subpoena for documents and testimony about the January 6 attack, a jury found him guilty of being in contempt of Congress.

    Today [6/26/24], Representative Barry Loudermilk (R-GA) filed a [AMICUS] brief with the Supreme Court saying that Bannon was right to ignore the subpoena because the committee was illegally organized. Politico’s Kyle Cheney pointed out that the lawyer for the brief is not a House lawyer but rather comes from America First Legal, a public interest organization put together by Trump loyalist Stephen Miller to challenge the legal efforts to rein in Trump’s orders when in office. […]

    Reminder LOUDERMILK gave suspicious “tours” of the CAPITOL on 1/5/21
    and texted with MEADOWS on 1/6/21 during the insurrection.

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