The Volokh Conspiracy

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The President of the United States v. Knight on the Shadow Docket

The Court waited for this official capacity case to become moot, substituted the new President, and GVR'd the case.


On Monday, the Court finally GVR'd Trump v. Knight First Amendment Institute. But now the case was restyled as Biden v. Knight First Amendment Institute. This substitution was correct. The Plaintiffs had sued President Trump in his official capacity. And upon the inauguration, Biden would have been automatically substituted as the defendant.

Of course, the Court did not need to wait till the inauguration. The case was first distributed for conference on October 30, 2020. And in January, Trump was banned from Twitter, arguably mooting the case altogether. Still, the Court held onto the petition so it would become moot, and then GVR'd the Second Circuit's ruling under the Munsingwear doctrine. So much of Trump-law has been wiped from the books. Now, the Biden Administration, and all other government actors, have a clean slate with respect to social media policies.

The Court, however, has not been consistent with updating the caption. For example, the Court did not substitute the parties in the Emoluments Clauses litigation. In those cases (20-330 and 20-331), the Court kept Donald Trump on the docket, even though Joe Biden should have been substituted. Indeed, in follow-up orders from the Second and Fourth Circuit, the lower courts also did not update the name of the defendant. However, in the lone individual capacity case, Trump's name should remain on the docket.

Back in 2018, I recorded a video for the Federalist Society about the case: