Tick, Tock Goes the SCOTUS Clock

The timing of TikTok v. Garland.

Today, the Supreme Court acted on pending applications in the challenges to the "Protecting Americans from Foreign Adversary Controlled Applications Act." The Court did not grant an injunction pending review. Instead, the Court construed the applications as petitions for writs of certiorari, and granted them. The Court set a blazing fast briefing schedule, with opening briefs due two days after Christmas, reply briefs to be filed two days after New Years, with oral argument one week later.

The parties are directed to file electronically simultaneous opening briefs, limited to 13,000 words, and a joint appendix on or before 5 p.m. (EST), Friday, December 27, 2024. Reply briefs, limited to 6,000 words, are to be filed electronically on or before 5 p.m. (EST), Friday, January 3, 2025. Any amicus curiae briefs are to be filed electronically on or before 5 p.m. (EST), Friday, December 27, 2024. Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter.

The case is set for oral argument on Friday, January 10, 2025.

Happy Holidays everyone!

The timing here is extremely tight, with good reason. The law goes into effect on January 19, 2025. The President can only extend this deadline once, assuming that certain conditions are satisfied.

Again, the Court did not grant some sort of temporary injunction. In the past, Justices Barrett and Kagan have been critical of granting injunctions on the shadow docket. That the Court agreed to promptly hear oral argument, and placed it on the rocket docket, seems consistent with past precedents.

What happens after oral argument? I see a few different possibilities.

First, a majority of the Court promptly affirms the D.C. Circuit. I think this can be done fairly quickly. Judge Ginsburg's decision is extremely thorough, and there is no need to reinvent the wheel. It is also possible that one or more Justices finds persuasive Judge Srinivasan's concurrence. But a simple majority affirm could be done in a summary fashion. There may be dissents filed right away, or the dissents could be issued at a later date.

Second, a majority of the Court promptly reverses the D.C. Circuit. That sort of opinion would have to be more-fully developed, and explain why Judge Ginsburg erred. I think that sort of outcome, especially on a prompt timeline, is unlikely. Then again, that opinion may already be drafted. Bush v. Gore was written on a tighter timeline. And the Justices have had months to think about the case. (Justice Barrett's NetChoice concurrence presaged some of these issues.)

Third, the Court could grant a temporary injunction immediately after oral argument, to provide enough time to develop a written opinion. This opinion could ultimately affirm, but more likely would reverse. Again, an affirmance can be done quickly without making any broad pronouncements about First Amendment law. Any injunction may have one or more dissents, which would provide a preview of the final vote count.

Fourth, on January 11, the Court denies an injunction, but does not rule on the petition for a writ of certiorari. That outcome would create an unusual game of chicken with the White House. President Biden would then have about eight days to decide whether an extension should be granted. SCOTUS could then wait until January 18 to decide whether to release its opinion. (I am not certain what time the law goes into effect on January 19.) Remember, if TikTok comes into compliance with the law, there is no need for the Court to resolve this issue. And who knows what happens when Trump comes into office. He has spoken in support of TikTok. If somehow TikTok comes into compliance with the law, then Judge Ginsburg's opinion will be vacated under Munsingwear and we can all forget this ever happened.

Fifth, if January 18 comes, and there is no extension granted, the Court will have to do something. Or it could do nothing at all. Indeed, if the President and the Court fail to act by January 19, TikTok would suffer the same fate as Heinrich Quirin. Remember, by the time the Court decided Ex parte Quirin, the Nazi Saboteurs had already been executed.

Tick Tock, goes the clock.