Just the Fax – SCOTUSblog

It’s a sweetly mild morning here on this day of the summer solstice. Outside the court, staff members of the Architect of the Capitol, who tend to the grounds not only of Congress but the court, are planting summer flowers on the north gardens of the court building.

Inside the courtroom, it seems a bit empty. Every seat in the bar section is unfilled until the contingent from the U.S. solicitor general’s office arrives. SG D. John Sauer was here Wednesday for opinions, but he is absent today, perhaps once again tied up by emergency docket matters. Deputy SG Malcolm Stewart leads five of his colleagues to the counsel tables.

The bar section will otherwise remain entirely empty of Supreme Court Bar members, something I can’t recall ever seeing, especially for an opinion day so late in the term.

The public gallery is pretty full on this first extra day for opinions. Meanwhile, in the justices’ guest box, Justice Brett Kavanaugh’s daughters are here. They have two other guests who appear to be with them, and Joan Biskupic of CNN realizes that one of those guests looks like Kim Mulkey, the colorful head women’s basketball coach at Louisiana State University. (“But you should double check,” Biskupic tells me.) 

After checking some photos after court, it seems clear enough that it was Mulkey, despite the fact that she was not wearing the kind of sparkly or otherwise statement-making blazer she prefers to wear to games, including when LSU won the NCAA women’s basketball championship in 2023. Kavanaugh once coached his daughters’ school basketball team, and on his financial disclosure form released this week, he listed his position as a coach for a District of Columbia Catholic school CYO program, at both the fifth-sixth and high school levels.

Just before the justices take the bench, a few law clerks enter and take seats in their vestibules on the south side of the courtroom. 

Chief Justice John Roberts announces that Justice Amy Coney Barrett “has the opinion of the court in two cases.”

First is Food and Drug Administration v. R.J. Reynolds Vapor Co. It’s the second case of the term involving e-cigarettes, though this one is a little more technical than FDA v. Wages and White Lion Investments, which involved flavored vapes.

This one is about who and where an FDA denial order may be challenged, with the key question being whether it was enough that R.J. Reynolds Vapor teamed with a retailer to get judicial review of the order in the U.S. Court of Appeals for the 5th Circuit, which the plaintiffs presumed might be more hospitable than either the U.S. Court of Appeals for the District of Columbia Circuit or the U.S. Court of Appeals for the 4th Circuit, where Reynolds alone would have to file.

Barrett explains early on that “‘adversely affected’ is the key phrase, so every time I say it, imagine there are quote marks around it.”

This is the kind of line that might elicit a few chuckles in the courtroom, but there is no response from the public gallery, nor the nearly empty bar section. Tough room.

Barrett goes on for several minutes to explain the court’s holding that retailers who would sell a new tobacco product if not for the FDA’s denial order may seek judicial review and satisfy the venue requirements of the relevant federal statute.

It’s a loss for the government. Barrett moves on to her second case, Esteras v. United States, which deals with federal sentencing laws and what factors a district judge may consider in deciding whether to revoke an individual’s supervised release. The court rules against the government’s interpretation, and so it’s another loss for the SG’s office. 

Roberts announces that Kavanaugh has two opinions, which is not surprising given that when he has guests on an opinion day, he tends to have an opinion.

“The first opinion I have is McLaughlin Chiropractic Associates v. McKesson Corp.,” he says, before explaining the facts behind unsolicited fax messages from McKesson, a healthcare company, to the chiropractic practice. The Telephone Consumer Protection Act provides a private right of action over unsolicited faxes, with statutory minimum damages of “$500 per fax,” he says. 

That this case is about the seemingly near-obsolete technology of facsimile machines gets some discussion on the live blog this morning. In 2019, the court decided another case involving the TCPA, when fax machines seemed just as out of date. (It happened to be the same term when the court also had cases about community-access cable channels and technology for handling bulk snail mail.) 

One fact that emerged about fax machines then was that they still tended to be in heavy use in medical offices, pharmacies, and the like, and were considered more secure than email or other internet communications, a not insignificant consideration given medical privacy laws.

Kavanaugh explains that a key factor in this case is that some recipients of McKesson’s unsolicited faxes received them “on traditional fax machines,” while others received them through online fax services, delivered either by email or an online portal.

The court rules that, despite a Federal Communications Commission order excluding online faxes from the TCPA, district courts in civil enforcement proceedings involving the statute must independently interpret it.

It might have been appropriate if the court had printed its opinion in this case on the kind of single-role fax paper used with fax machines well into the 1990s, but it didn’t.

Kavanaugh’s second opinion is Diamond Alternative Energy v. EPA, with the court ruling that a group of fuel producers have standing to challenge the EPA’s approval of California regulations to make more electric vehicles and fewer gas-powered ones. It is another defeat for the SG’s office, and in this case for longtime Deputy SG Edwin Kneedler, who had made his last argument in this case before retiring.

Justice Neil Gorsuch is up next with a fairly concise summary of Stanley v. City of Sanford, Fla., a fractured decision that goes against a retired firefighter who sued her former employer under the Americans with Disabilities Act to challenge the termination of her health insurance after she was forced to retire because of Parkinson’s disease.

So, five opinions is a lot, but we’re not done yet.

The chief justice announces that he has the opinion in Fuld v. Palestine Liberation Organization and its consolidated cases. The court holds that the Promoting Security and Justice for Victims of Terrorism Act does not violate the Fifth Amendment’s due process clause because the law reasonably ties the assertion of jurisdiction over the PLO and Palestinian Authority to U.S. conduct and implicates sensitive foreign policy matters. The court sends this terrorism-related lawsuit back to the lower courts. 

Kneedler argued the Unites States’ position in this case on April 1, so before his final argument. But I think we can say he went out with a win.

While reporters in the press room and those on the live blog knew this was the last opinion as soon as the chief started speaking, we don’t know that in the courtroom. And even though he twice today announced that a justice had two opinions to announce, he can be coy and sometimes not say that even when he or another justice has more than one opinion. 

But as he seems to be wrapping up his summary, there is a bit of stirring among court staff members present, enough to make clear that six is enough today.

The justices rise and all attention is focused on Marshal Gail Curley to announce the next day for court. She says that court is recessed until next Thursday, and it is a little surprising that there isn’t an extra opinion day before then. With 10 opinions to go, that means the court could finish by next Friday or early the following week.

Check your fax machines for unsolicited updates.