SCOTUStoday for Wednesday, October 22

Today marks one month since we launched SCOTUStoday, and we’d love to hear your thoughts on some questions:

• Are the article descriptions in the Morning Reads section too long or just right?
• Are there other court-related events you’d like to see noted in SCOTUS Quick Hits?
• Do you have suggestions for topics to cover in the Closer Look section?
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• Is there anything missing from SCOTUStoday that you’d like us to add?

Please send your responses to scotusblog@thedispatch.com using the email subject “SCOTUStoday feedback.” Thanks for reading! We really appreciate you being part of the SCOTUSblog community.

Morning Reads

• A 200-Year-Old Precedent Holds the Key to Trump’s Troop Deployment (Adam Liptak, The New York Times) — As the Supreme Court considers the Trump administration’s request to be allowed to deploy the National Guard in Illinois, it’s wrestling with a precedent that’s nearly two centuries old. In the 1827 case of Martin v. Mott, the court held that “the authority to decide whether the exigency has arisen [to call up state militias] belongs exclusively to the president, and that his decision is conclusive upon all other persons.” U.S. Solicitor General D. John Sauer cited that passage as he laid out his case for allowing the Illinois deployment, but “legal scholars and several lower-court judges [have] said the Trump administration [is] taking the words out of context,” according to The New York Times. For example, in its ruling on National Guard deployment in Illinois, a unanimous panel of the U.S. Court of Appeals for the 7th Circuit emphasized that the 1827 ruling should be read as a rejection of the idea that officers “under the president’s command” could “make [their] own determination” about a president’s orders and refuse to obey them. “Here, by contrast,” the panel said, “the question is whether courts, not subordinate militiamen, may review the president’s determination.”
• ‘We are in a difficult part of American history:’ Supreme Court Justice Sonia Sotomayor speaks at UVM (Corey McDonald, VTDigger) — Supreme Court Justice Sonia Sotomayor visited the University of Vermont on Monday to speak about her upbringing, her work on the court, and the state of politics, according to VTDigger. “We are in a difficult part of American history, and we have great risk right now of our republic government changing in some fundamental ways,” she said. “I’m not going to tell you to not be worried. You have and should be worried. But what you shouldn’t do is walk away from the fight.” Sotomayor also reflected on the value of writing dissents. “The justice said the law is often perceived as ‘black and white’ and said there was a ‘gray area’ in the interpretation of the law. Dissenting, she said, ‘illuminates that gray area’ for the public.”
• ‘Every Defendant [Oil Company] Declares Bankruptcy’ (Ed Whelan, National Review) — In a Monday entry on the National Review’s Bench Memos blog, Ed Whelan called on the court to “rein in rogue state supreme courts that have allowed cities to pursue tort claims against oil companies for injuries that they have allegedly suffered from the effect of greenhouse-gas emissions on global climate change.” The justices soon will consider a petition for review from Suncor Energy and Exxon Mobil that seeks to block such a case. The companies contend that “the Constitution ‘does not permit a State to provide relief under state law for injuries allegedly caused by pollution emanating from outside the State.’”
• Purdue Pharma gets over 99% voting support for bankruptcy plan (Dietrich Knauth, Reuters) — Last year, the Supreme Court blocked a bankruptcy plan for Purdue Pharma, the maker of the opioid OxyContin, holding that it unlawfully shielded members of the Sackler family from liability without the consent of creditors and opioid victims. Now, more than 99% of Purdue Pharma’s creditors have accepted a new “$7.4 billion settlement of legal claims related to the company’s sales of addictive opioid medication,” according to Reuters. “Purdue will seek final approval of its revised bankruptcy settlement at a court hearing in November.”
• Google’s new deadline for Epic consequences is October 29th (Sean Hollister, The Verge) — After the Supreme Court on Oct. 6 declined to temporarily block a district court order requiring changes to the Google Play app store, Google was set to have to update its rules for in-app purchases by today. But its deadline to make changes is now Oct. 29, after the game developer that challenged Google’s policies, Epic Games, agreed to a one-week delay, according to The Verge. It’s “not clear why Google argued for the extension, or why Epic agreed to it, after Epic CEO Tim Sweeney previously celebrated the October 22nd deadline as the day ‘developers will be legally entitled to steer US Google Play users to out-of-app payments without fees, scare screens, and friction – same as Apple App Store users in the US!’ Public documents filed by both parties don’t mention a reason for the delay.”

SCOTUS Quick Hits

• On Monday, lawyers representing the state of Illinois and city of Chicago responded to the Trump administration’s request for the court to clear the way for the president to federalize and deploy the National Guard in Illinois. On Tuesday, the administration submitted its reply to Monday’s filing, which means the case is fully briefed and the court could act at any time.
• Also on Monday, the small businesses and states challenging Trump’s tariffs asked the court to uphold lower court orders striking down the tariffs.

A Closer Look: Candidates’ Ability to Challenge Election Law

As we get closer to November, a number of (off-year) elections are approaching, including Virginia and New Jersey’s governor races and New York City’s mayoral race. Electoral matters also recently came before the Supreme Court. In Bost v. Illinois State Board of Elections, the question was raised of when a federal candidate can challenge state election rules.

Under Illinois law, mail-in ballots can be counted up to 14 days after Election Day, so long as they are postmarked by the deadline. Republican Congressman Michael Bost sued in federal district court to block enforcement of the rule. But the lower courts dismissed Bost’s case for lack of standing, ruling that he failed to show the required “concrete and particularized injury in fact” to satisfy Article III of the Constitution and bring his suit in federal court. 

Fundamentally, any lawsuit in federal court must be based on claims of sufficient injury in order to have standing to sue – as opposed to a mere “generalized grievance” shared by the public. During the argument, Bost’s counsel identified two primary reasons prospective candidates for federal office have standing – the first being “diversion of resources.” In this, they argued the extended 14-day period forced Bost to spend more (such as for campaign observers) which constitutes the type of “pocketbook injury” that has been found to support standing in federal court. The second alleged injury rests on the argument that the extended deadline will harm or provide a “substantial risk” of harm to Bost’s election prospects.  

At oral argument, the justices signaled “little appetite” for a broad mandate allowing for election challenges by candidates. But there appeared to be “a substantial majority, perhaps as many as seven justices, leaning toward reversing the lower federal courts’ holding,” SCOTUSblog contributor Evan Lee wrote.

The court should decide the case by late June or early July of next year.

SCOTUS Quote

“For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”

— Justice John Marshall Harlan II in Cohen v. California

On Site

From Amy Howe

Challengers to Trump’s Tariffs File Briefs

Lawyers for small businesses and states challenging President Donald Trump’s authority to impose sweeping tariffs on almost all goods imported into the United States urged the Supreme Court on Monday to leave in place rulings by lower courts that struck down most of the tariffs. One group of small businesses told the justices that the tariffs “have equated to the largest peacetime tax increase in American history,” while another contends that the tariffs “upend[] a century of trade law.” For more on the filings, read Amy’s analysis.

Contributor Corner

Misusing History to Limit Birthright Citizenship

In his latest Immigration Matters column, César Cuauhtémoc García Hernández explored the historical context of the birthright citizenship clause in the 14th Amendment, a context that the Trump administration aims to use to justify an executive order limiting the circumstances under which a newborn is granted U.S. citizenship. He contended that the administration misreads and oversimplifies the clause’s “original understanding and history,” which “are far more nuanced than the solicitor general would have the justices believe.”