The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Instant Analysis of the TikTok Oral Argument
A few moments ago, the Supreme Court wrapped oral argument in the TikTok case. It stretched nearly three hours, but could have easily been finished in one.
I do not think the Court can settle this matter one way or another in the next nine days. There are simply too many issues. Let me start with perhaps the most relevant question asked at the end: Justice Alito asked whether the Court could grant an administrative stay, that did not turn on the likelihood of success on the merits. That is precisely what I proposed last week. Solicitor General Prelogar groused, but would not say the Court lacked the power to issue such an administrative stay. And that's all Alito needed to hear.
A few members asked about President Trump's brief. I know that elites widely ridiculed it, but Sauer's submission was effective for precisely the reason I suggested: it gives the Court an out to not have to decide this case that could set a sweeping precedent. And that ties in directly with the purpose of the administrative stay.
On the merits, there are four votes clearly in support of the government. Chief Justice Roberts is squarely in support of the law. He asked many questions about the ability of China to inspect data on American devices. I told you this threat was on his mind in the year-end report. Justice Kavanaugh also asked several question along similar lines about national security. Justice Thomas did not see at all how TikTok has any speech interest here. And Justice Alito did now show any inclination that TikTok could prevail.
Justice Gorsuch was wearing his libertarian hat today, and was really worried about the precedent that could be set. He also asked a lot of factual questions, which suggests he would be uncomfortable allowing the law to go into effect. Justice Barrett seemed convinced there is some First Amendment interest at play, but couldn't settle on the appropriate standard of scrutiny. She kept saying "Let's assume I agree with you the First Amendment applies, what is the right test…" When ACB asks the lawyer to assume something, that means it is what she thinks. I think Barrett is finding the right way to rule against TikTok but isn't sure.
Justice Kagan seemed a bit fluid. I've written before that her primary goal is to influence Justice Barrett. At one point, Justice Kagan tried to suggest what Justice Barrett was thinking, then stopped herself, and told us what she is thinking. I think she forgot which role she was playing.
Justice Sotomayor seemed squarely in support of TikTok, but wasn't quite sure how to cobble together a majority. And Justice Jackson was a bit all over the place.
Anyway, bottom line, I think the Court issues some sort of administrative stay (really an administrative injunction). All of the professors who scoffed at my proposal and said it was not proper, or inconsistent with the All Writs Act, will have to respond accordingly. Then let's see what kind of deal Trump can work out. Maybe China can trade TikTok for the Panama Canal.
Update: Shortly after I published this post, I stepped into the FedSoc faculty forum. About the last 15 minutes of the video involves discussion of the TikTok case. I offered some comments from the microphone:
Update 2: Here is the colloquy between Justice Alito and SG Prelogar about an administrative stay:
JUSTICE ALITO: At one point Mr. Francisco suggested that what we might want to do and what he would regard as certainly preferable to a decision affirming on the merits was –is to issue an injunction pending, I guess, consideration of what we now regard as the –as the cert petition that was filed here.
What do you think of that suggestion?
GENERAL PRELOGAR: So I think this Court doesn't have any basis to enter a temporary injunction, unless it thinks Petitioners are likely to succeed on the merits of the First Amendment claim. And to be honest, you know, I –I would –I think that there is no argument to be made that you should find that likelihood of success. This is an act of Congress. This isn't some unilateral action by the executive branch, but it actually was action in parallel between the Executive and Congress where Congress took action to close up a loophole in some of our laws. The Executive had tried to force divestiture of TikTok under the Trump administration, but that had gotten tied up in litigation about those authorities. So Congress came in and provided additional authority based on a substantial record, including with respect to the data harm. And I don't see any basis for this Court to displace the deadline that Congress set without finding that actually there is a potential First Amendment problem here.
JUSTICE ALITO: Do –do you think we have the authority to issue an administrative stay as we have done in –in other cases or do you think that the January 20 deadline prohibits us from doing that?
GENERAL PRELOGAR: I don't think this Court has a formal basis to not issue an administrative stay, if it believed that that was necessary to assist in the Court's own consideration of the case. And I would obviously defer to the Court and whether it has a sufficient time to resolve the case, but we are here ready to submit the case today. And I think it is in the interest of Congress's work and our national security to resolve the case and allow the statute to take effect.
