The Volokh Conspiracy

Justice Kagan, and for the most part, Justice Sotomayor, seem intent on building bridges to Justice Barrett to help garner her vote. Justice Jackson, on the other hand, takes a different approach.

In Moyle, Justice Jackson accuses Barrett, as well as Chief Justices Roberts and Justice Kavanaugh, of ducking the case because of a "convenient" argument by Idaho.

Some of my colleagues appear to view this convenient rhetorical maneuver as a material change that (also conveniently) reduces the conflict between state and federal law to the point that a ruling from this Court is no longer warranted. See ante, at 6--7 (Barrett, J., concurring). But it is both legally and factually implausible to say that Idaho's current litigating position actually mitigates the conflict between that State's law and EMTALA.

She claims that the Barrett-troika is "shirking its duty."

So it is strange, to say the least, that this Court would shirk its duty to resolve a pressing legal issue on the basis of representations that defy medical realities.

She accuses the middle-three with using an "escape hatch."

Still, some of my colleagues latch onto the bald representations of ldaho's counsel, using them as an escape hatch that justifies our dispensing with having to issue a merits ruling in these cases.

And taking a "mulligan."

We cannot simply wind back the clock to how things were before the Court injected itself into this matter. Our intervention has already distorted this litigation process. We permitted Idaho's law to go into effect by staying the District Court's injunction in the first place, then allowed this matter to sit on our merits docket for five months while we considered the question presented. It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The Court has made this bed so now it must lie in it-by proceeding to decide the merits of the critical pre-emption issue this case presents.

Justice Jackson is sounding many of the same notes as Justice Alito's dissent. I sense a brooding frustration on the Court with Justice Barrett. Justices Sotomayor and Kagan will take a vote where they can. Their time horizon is much shorter than the other members.

Moreover, Justice Jackson calls out Justice Barrett for at least signaling that Idaho's case may have some merit.

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects. See ante, at 4--7 (Barrett, J., concurring); post, at 4--11 (Alito, J., dissenting). The majority opts, instead, to dismiss these cases. But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law. See post, at 11-14 (Alito, J., dissenting). And three more decline to disagree with those dissenters on the merits. See ante, at 4--7 (Barrett, J., concurring). The latter group offers only murmurs that "petitioners have raised a difficult and consequential argument" about Congress's authority under the Spending Clause. Ante, at 6 (Barrett, J., concurring). So, as of today, the Court has not adopted Idaho's farfetched theories-but it has not rejected them either.

For good measure, Justice Jackson takes a shot at the Fifth Circuit for "flouting EMTALA."

Instead, the Court puts off the decision. But how long must pregnant patients wait for an answer? Until we confront the pending petition that the Government filed with us after the Fifth Circuit enabled Texas's flouting of EMTALA? Until these very cases return to us in a few years? Will this Court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time? Or maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable States to flagrantly undercut federal law, facilitating the suffering of people in need of urgent medical treatment.

As I noted earlier, the petition from the Fifth Circuit will likely be ready for the long conference. I have to imagine that Jackson, and the three conservatives, will be a lock for cert. Of course, if Trump wins, this case will simply enter limbo.

In Moyle v. United States, Justices Alito, Thomas, and Gorsuch would have maintained the stay. Indeed, they signaled that they would rule for Idaho on the merits. But they were in dissent. And at times, it was a cantankerous dissent. (Justice Gorsuch did not join Part III of the dissent, for reasons he did not explain.)

Justice Alito provides a peek behind the curtain, and suggests the stay was granted in January based on the "likelihood of success on the merits."

Recognizing the flaws in the Government's theory and Idaho's "strong" likelihood of success, this Court stayed the preliminary injunction pending appeal on January 5. And, wisely or not, the Court also took the unusual step of granting certiorari before Idaho's appeal was heard by the Ninth Circuit. See this Court's Rule 11. Now the Court dismisses the writ and, what is worse, vacates the stay.

The Court's order granting the stay offered no rationales. Here, Alito is at least signaling what was important to the three dissenters, but I would suspect this was also what persuaded Justices Kavanaugh and Barrett. After all, Kavanaugh's concurrence in Labrador focused primarily on the likelihood of success on the merits. Moreover, Alito acknowledges that whether or not it was a good idea to grant cert before judgment, it was a mistake to DIG the writ now.

Alito repeats this point later:

Having already taken the extraordinary step of granting certiorari before judgment in order to decide whether the Government's new interpretation of EMTALA is correct, we have no good reason to change course now.

And why did the Court DIG it? The Court "lost the will." Or to be more precise, Justices Kavanaugh and Barrett "lost the will."

Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.

And why did they lose the will? The suggestion here is because this case is "emotional" and "highly politicized." Alito implies that Justices Barrett and Kavanaugh changed their minds because abortion is an "emotional" topic and the case has become "politicized." I learned long ago not to use the word "emotional" when describing anything a woman does. If Justice Alito used that line with Mrs. Alito, he would certainly need an appeal to heaven. But this barb made it into a draft opinion. (Maybe it will be dropped in the final opinion.)

Alito repeats this claim at the end of his opinion:

Today's decision is puzzling. Having taken the unusual step of granting certiorari before Idaho's appeal could be heard by the Ninth Circuit, the Court decides it does not want to tackle this case after all and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this Court now ducks.

Alito accuses Barrett and Kavanaugh of ducking and hiding for cover.

This isn't the first time the conservatives have used such language. Back in 2021, Justices Thomas, Alito, and Gorsuch wrote that Barrett and Kavanaugh lacked "fortitude." I observed at the time:

In an excessive force case, the conservative trio wrote that the two newest Justices were "unwilling to…bear[] the criticism that" denying the prisoner's appeal "would inevitably elicit." And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the "fortitude" to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

These attacks remind me of Justice Scalia's attacks on Justice O'Connor in Webster v. Reproductive Health Services (1989). They will backfire.

I think the Court's conservatives need some sort of reset or intervention. It will be a long three decades ahead.

I agree with Will Baude's and Jonathan Adler's posts earlier today that Justice Barrett's excellent majority opinion throwing out the plaintiff's case for lack of standing reaches the right outcome. The plaintiff's had to prove an actual injury, not one that was hypothetical or speculative, that the Court could redress by an injunction targeted against the Biden Administration in the future. The fact that the Biden Administration threatened Facebook with an antitrust suit to force it to delete, among others, Robert F. Kennedy's posts about vaccine skepticism, during Covid, does not mean that the Biden Administration will behave this way in the future. We simply do not know, today, if there will be either a Covid-like event or a Biden Administration, in the future, i.e. after January 20, 2025. Justice Scalia would have joined Justice Barrett's opinion if he was alive and on the Supreme Court today.

At the same time, Justice Alito's excellent dissent usefully summarizes a sustained campaign of brutal and vicious threats made by the Biden Administration against Facebook during Covid from 2021 to 2022. Biden threatened to breakup Facebook with an antitrust suit if it did not greatly censor vaccine skeptic speech. Facebook meekly complied because they had bigger fish to fry. This was a clear violation of the First Amendment by the Biden Administration. It was a gross misuse of presidential power that, at the time, was a High Crime or Misdemeanor. The plaintiffs in this case might have standing to sue the various government officials mentioned in their complaints for money damages, but they do not have standing to sue for a prospective injunction.

The remedy for the future behavior of Joe Biden is in the hands of American voters to be decided on November 5th of this year. It is not the Supreme Court's job to conduct a general prospective oversight of the executive branch.

Justice Kagan's concurrence in Moyle, joined by Justice Sotomayor, made the same factual claim several times--that Idaho's law would affect the fertility of women. (And no, Kagan did not use Justice Jackson's neologism of "pregnant patient"--a question she still must be wrestling with since her confirmation hearing.) Kagan wrote:

An Idaho law prohibits abortions unless necessary to prevent a pregnant woman's death; the law makes no exception for abortions necessary to prevent grave harms to the woman's health, like the loss of her fertility.

What falls in the gap between them are cases in which continuing a pregnancy does not put a woman's life in danger, but still places her at risk of grave health consequences, including loss of fertility.

And the record shows that, as a matter of medical reality, such cases exist. For example, when a woman comes to an emergency room with PPROM, the serious risk she faces may not be of death but of damage to her uterus, preventing her from having children in the future.

Termination of the pregnancy (which is often of a non-viable fetus) may be the only way to prevent a woman's death or serious injury, including kidney failure or loss of fertility.

Why would Justice Kagan go out of her way four times to focus on fertility? That is usually not what pro-abortion advocates write about. They usually focus on autonomy and equality. No. This message is directed right at the Supreme Court Justice with the most children--Justice Barrett. Remember, in Dobbs, Justice Barrett was taken by the fact that adoptions have become easier. In an abortion case, the way to Justice Barrett's vote is by focusing on the ability of women to maintain their fertility and have more children. Accordingly, SG Prelogar mentioned fertility twice during argument.

In Idaho, doctors have to shut their eyes to everything except death, whereas, under EMTALA, you're supposed to be thinking about things like, is she about to lose her fertility?

It's looking at the possibility that if the woman doesn't get treatment then and there, what will happen, what will reasonably be expected to occur is that her organs could start shutting down or she might lose her fertility or have other serious health consequences.

I have become convinced that every move Elena Kagan makes is seen to bring Amy Coney Barrett to her side. Kagan, a former law school dean, knows how to talk to an academic. Meanwhile, the Court's conservatives have shown no ability, or even interest, to bringing around Barrett. The drift is visible. Laurence Tribe's description of Kagan more than a decade ago is still apt--she had purchase with Justice Kennedy, and now has purchase with Justice Barrett.

I also found it strange that Justice Kagan used an acronym, PPROM, without defining it. (Maybe this is something that would have been cleared up in a subsequent draft.) PPROM, or preterm premature rupture of the membranes, occurs when a woman's water breaks prior to the onset of labor.

This exact issue came up at oral arguments, and seems to have pushed Justice Barrett off her prior position. The colloquy begins at page 24. Justice Sotomayor asked the Idaho SG about women who were diagnosed with PPROM during the second trimester. Sotomayor inquired if, under the Idaho law, a doctor could perform an abortion in this case. The lawyer would not give a yes-or-no answer, and responded, "It is very case by case." At that point, Justice Barrett entered the fray:

JUSTICE BARRETT: Counsel, I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered.

MR. TURNER: Yeah.

JUSTICE BARRETT: And you're now saying they're not?

MR. TURNER: No, I'm not saying that. That's just my point, Your Honor, is that -

JUSTICE BARRETT: Well, you're hedging. I mean, Justice Sotomayor is asking you would this be covered or not, and it was my understanding that the legislature's witnesses said that these would be covered.

In hindsight, that may have been the moment that Idaho lost the case.

I think Justices Sotomayor and Kagan see these dynamics of what makes Justice Barrett tick, and they executed their plan flawlessly. Justice Jackson, as I'll explain in another post, has a different focus.

As I write this post on Wednesday evening, the vote on the stay in Moyle v. United States seems to be 6-3. Or at least this was the vote on May 23, 2024. Of course, things could have changed. Indeed, the votes may be different when this case is released between now and the end of the term. And, applying Dobbs leak logic, perhaps the release was designed to lock in votes. Who knows? But for now, I'll presume that the opinion remains unchanged.

The most important opinion here is from Justice Barrett. She is the Court's center. And, as I've said before, she seems to still be figuring stuff out on the job. Her Moyle concurrence expresses open regret to granting certiorari before judgment and a stay--not just because the facts on the grounds have changed, but that the Court accelerated the process when it shouldn't have. She also seems mad at Idaho for (as she sees it) exaggerating the justification for the stay.

I think we've now seen yet another evolution in Justice Barrett's approach to the emergency docket. In Roman Catholic Diocese, she was the fifth vote to enjoin New York's lockdown law. (Remember COVID?) But she later retreated from that standard. In Does v. Mills, she indicated she would only grant relief if a case was "cert worthy." And when Barrett is the fourth vote for cert, she gets to define what cert-worthy means! More recently, in Labrador v. Poe, she joined Justice Kavanaugh's concurrence, which said emergency relief should be granted primarily based on the likelihood of success on the merits. That opinion also downplayed the importance of "irreparable harm." Kavanaugh wrote:

Members of this Court have long held that, "'[a]nytime a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'" Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). Likewise, this Court has held that "[t]here is always a public interest in prompt execution" of the law, absent a showing of its unconstitutionality. Nken, 556 U. S., at 436.

I thought Justice Kavanaugh was exactly right in Labrador. But Justice Barrett's Moyle concurrence runs in the opposite direction. It focuses exclusively on the irreparable harm factor, and does not even mention the likelihood of success on the merits:

To be sure, the text of the two laws differs: Idaho's Act allows abortion only when "necessary to prevent the death of the pregnant woman," Idaho Code Ann. § 18-622(2)( a)(i), while EMTALA requires stabilizing care to prevent "serious jeopardy" to the woman's health, 42 U. S. C. § 1395dd( e )(1 )(A)(i). But Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA's requirement is narrower than Idaho fears. That matters in assessing Idaho's irreparable harm for purposes of the stay. The dramatic narrowing of the dispute-especially the Government's position on abortions to address mental health and conscience exemptions for healthcare providers-has undercut the conclusion that Idaho would suffer irreparable harm under the preliminary injunction. Contrary to Idaho's concerns at the stay stage, the Government's interpretation of EMTALA does not purport to transform emergency rooms into "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand." Stay Reply Brief in No. 23A470, p. 6 (citation omitted). Nor does it purport to deprive doctors and hospitals of conscience protections. Cf. id., at 15. Thus, even with the preliminary injunction in place, Idaho's ability to enforce its law remains almost entirely intact.

The last sentence is the most important. Idaho's law "remains almost entirely intact." Put differently, the state is suffering some irreparable harm, but not enough irreparable harm to justify a stay.

Barrett states the issue directly:

The Court's grant of a stay reflected, among other things, its determination that Idaho had satisfied that burden. Now, based on the parties' representations, it appears that the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances.

And let's be clear. When Barrett says "the Court," she is referring to herself. L'État, c'est moi. She was no doubt the critical vote to proceed on an expedited basis. This is her personal regret.

Justice Alito's dissent claps back with a citation to Chief Justice Roberts's in chambers decision in Maryland v. King:

As for the remaining three, their only explanation is that "the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances" and that therefore Idaho cannot show that it will be irreparably harmed by allowing the injunction to remain in place during the pendency of the appeal. Ante, at 7 (Barrett, J., joined by Roberts, C. J., and Kavanaugh, J., concurring). That justification is patently unsound. "'[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'" Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C. J., in chambers). And in this case, Idaho's injury is not abstract. As I will explain, it is very likely that the preliminary injunction will lead to more abortions, including in at least some cases where the fetus is viable. The State of ldaho wants to prevent that; the preliminary injunction stands in its way. Isn't that enough to constitute irreparable harm?

For Justice Barrett, that harm is not enough.

I don't point out the changes from Mills to Labrador to Moyle to show that Justice Barrett is being inconsistent. I am not making that claim at all. Instead, with Justice Barrett, each case is a new day. She is figuring things out. What mattered to her in April is different than what mattered to her in May. Indeed, Labrador was released about a week before oral argument in Moyle. I bet she would take that join back if she could. Or she may just not join Justice Kavanaugh's musings going forward.

And what about Justice Kavanaugh. He put together what I thought was a unifying theory of the emergency docket: grant cert before judgment, hold expedited oral argument, and rule based on the likelihood of success on the merits. Sounds like a prudent plan to me. But the Moyle concurrence did just the opposite. Justice Kavanaugh may have been content to dissolve the stay in light of the conscience protections he extracted from the Solicitor General in Alliance for Hippocratic Medicine. But why join the Barrett concurrence that disregards everything Kavanaugh established in Labrador? Combine Moyle with the Kavanaugh-Barrett split in Rahimi, and we are seeing the widening a chasm. (I will address the gap between Barrett-Roberts-Gorsuch and Alito-Thomas-Gorsuch in another post.)

Going forward, expect Justice Barrett to be a consistent vote against granting certiorari before judgment if there is even a possibility that the facts may shift a bit. Cert before judgment will no longer be granted unless the applicant prove they will suffer enough irreparable harm. At bottom, Justice Barrett prefers cases perfectly presented to her in the regular order, regardless of the the urgency of the matter. And if the parties do not meet some Barrett-specific burden of proof--cert-worthiness or enough irreparable harm--relief will be denied.

I realize that conservatives do not like when I criticize Barrett, but everyone should open their eyes to her clear voting pattern.

There is a classic joke, best told in a Yiddish accent (think Jacky Mason). A mohel puts a clock in his storefront. A customer walks in to have his watch fixed, but the mohel says, "I don't fix watches." The customer asks, "why do you have a clock in your window?" The mohel responds, "If you were a mohel, what would you put in your window?"

I had much the same reaction reading the Supreme Court's leaked opinion in Moyle v. United States. The Supreme Court could not actually muster an opinion on the EMTALA question, so they left us with window dressing: a DIG and a punt.

Last bris joke, I promise.

I've now had a chance to read the draft opinion in Moyle v. United States. The document is labeled 1.0, and is dated May 23, 2024. A lot can change over a month. But, like with the Dobbs leak two years ago, it is safe to presume that not many changes will be made. Here are my tentative thoughts.

First, Moyle was argued on April 24. That would suggest it took the Court about a month to put together a DIG and several separate writings. This timing suggests that the Court does indeed hold big cases till the end of the term, and does not always release them right away. It has happened that certain DIGs are held to the last day of the term. But why? Other DIGs are issued shortly after a case is argued.

Second, whatever security precautions were put in place after Dobbs failed. Bloomberg has not indicated how long the document was online for, but it was there long enough for it to be downloaded. Bloomberg likely was not the only one to see it. Moreover, the document posted was not final. It still had the version number (1.0) and date (5/23/24) on it. Somehow, someone in the Supreme Court managed to inadvertently post a draft opinion that was not complete. This was not like someone pushing the wrong button. Several steps in the process were bypassed. Will the Chief Justice assign the Marshal to investigate? I will withhold any calls for Roberts's resignation until more facts are developed.

Third, the effect of the dismissal may be temporary. Currently pending before the Court is the SG's cert petition on a similar case from Texas. The brief in opposition to cert is due on July 22. This case will almost certainly be distributed for the long conference. I have to imagine there are four votes for cert, but not the four you might expect. Justices Alito, Thomas, and Gorsuch want to resolve this case yesterday. And Justice Jackson lambasted her progressive colleagues for DIGing it. So we should get a grant in October, with oral argument in December or January. But therein lies a dilemma. If Trump wins, he will almost certainly rescind the Biden-era "guidance" document. And the Court can then DIG that petition, like the Grimm case. How's that for Roberts bipartisanship--DIG two petitions on the same issue from two administrations. And that shift will trigger a new round of litigation that Trump's rescission is not valid because {insert reasons}. Idaho is in the Ninth Circuit, so you know how that will go. As a result the Court will never actually decide the statutory issue. Justice Jackson is angry, with good reason! Her time horizon is much longer than that of Justices Sotomayor and Kagan. I see this decision as a similar punt to the cert grant of the SG's petition in Skrmetti. If Trump wins, the Roberts Court can, once again, avoid a contentious issue.

Fourth, Justice Kavanaugh's concurrence in Labrador v. Poe is looking quite stale. In that opinion, which I praised, Kavanaugh extolled the virtue of granting cert before judgment as a way to handle the shadow docket. But here, Justice Barrett regrets the decision to grant cert before judgment, and lays down what I think will be guidance to not grant it in the future. She focuses on irreparable harm, and indeed is quite stingy in defining it. I know I beat up on Justice Kavanaugh quite a bit, but I do feel bad for him. Just when he thought he had things figured out, Justice Barrett pulls the rug from underneath him.

I will have much more to say about the substance of the opinion in another post. And, to close with a mohel joke, never take a front row seat a bris.

In Cajune v. Indep. School. Dist. 194, decided today by the Eighth Circuit, plaintiffs sued to challenge the School District's permission for some teachers to put up Black Lives Matter posters in classrooms (but not for members of the public to display other posters, such as All Lives Matter or Blue Lives Matter posters). The court, in an opinion by Judge Raymond Gruender, joined by Judges Bobby Shepherd and Steven Grasz, held that the plaintiffs stated a First Amendment claim: Plaintiffs had sufficiently alleged that the government was allowing private speech (which means the government generally can't discriminate based on viewpoint), rather than engage in government speech (where the government can select the viewpoints it conveys):

"The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." "When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say."

The Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks." In some situations, difficulties can arise in distinguishing between government speech and government regulation of private expression. To determine whether the government intends to speak for itself or to regulate private expression, we conduct a "holistic inquiry," looking to (1) "the history of the expression at issue," (2) "the public's likely perception as to who (the government or a private person) is speaking," and (3) "the extent to which the government has actively shaped or controlled the expression."

First, we look to the history of the expression at issue. We consider both the general history of posting messages on school walls as well as the specific history of the District in allowing similar messages to be posted on its walls. As to general history, the parties do not dispute that schools have traditionally controlled and communicated messages on posters placed on their walls. The District's specific history, however, tells another story. The District had not previously allowed private individuals to display a poster series like the Inclusive Poster Series on school walls. Indeed, Superintendent Baumann attempted on multiple occasions to exclude the BLM posters from the District, but the District acquiesced to the wishes of private persons after facing backlash from members of the community.

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Four years ago, we went through Blue June. It seemed that almost every big case at the end of the OT 2019 term seemed to go to the left. By contrast, the end of the OT 2021 term was just the opposite. During Red June, as I called it, all the big cases seemed to go to the right. The troika of Bruen, Dobbs, and Kennedy was unlike anything I had seen in my life.

OT 2023 seems to be trending to the left, with a fairly blue June so far.

FDA v. AHM, unanimous reversal of the Fifth Circuit. Moore v. United States, with only Justices Thomas and Gorsuch in dissent. United States v. Rahimi, with only Justice Thomas in dissent. Murthy v. Missouri, with Justices Thomas, Alito, and Gorsuch in dissent. (The NYT headline last night would have been useful supplemental authority: "Biden Officials Pushed to Remove Age Limits for Trans Surgery, Documents Show.") Based on the premature posting, Moyle split 6-3 with Justices Thomas, Alito, and Gorsuch in dissent. So far, the one outlier I can see is Garland v. Cargill, which prompted Justice Sotomayor to read her dissent from the bench.

Whatever happens in NetChoice will not be a victory for conservatives. Loper Bright will probably stop short of overruling Chevron. The Trump immunity case will not have much salience, other than making it impossible to hold a criminal trial before November. Grants Pass may actually make it harder for local governments to manage homeless encampments. Jarkesy may be a huge decision for the Seventh Amendment that people outside of D.C. will not care about. What's left?

I'm not ready to call it a Blue June yet, but we're trending in that direction.

One of the more remarkable changes at the Supreme Court in recent years has been the flipped dynamics on federal criminal law. Synder v. United States turns on the line between a bribe and a gratuity. A generation ago, if Snyder v. United States came to the Supreme Court, it would have been a 7-2 ruling in favor of the federal government. The Court's conservatives and moderates would have gladly agreed with the Solicitor General's reading of the Section 666 (if ever there was an aptly numbered statute), with Justices Brennan and Marshall in dissent.

But today, the vote is just the other way. Justice Jackson wrote a dissent, joined by Justices Sotomayor and Kagan, upholding the SG's broad reading of federal criminal law. Jackson wrote:

We took this case to resolve "[w]hether section 666 criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions." Pet. for Cert. I. The majority today answers no, when the answer to that question should be an unequivocal yes.

And Justice Kavanaugh, for the Court's other conservatives, ruled in favor of the criminal defendant:

The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so. Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials

Justice Jackson's dissent gestures to this flip, pointing out how only "today's" Court could reach this holding:

Snyder's absurd and atextual reading of the statute is one only today's Court could love.

Who is the conservative and who is the liberal here?

Jackson charges the majority with outright judicial activism--a common theme in her opinions:

Both the majority and Snyder suggest that interpreting §666 to cover gratuities is problematic because it gives "federal prosecutors unwarranted power to allege crimes that should be handled at the State level." App. 14–15 (emphasis added); see also ante, at 10–11. But woulds, coulds, and shoulds of this nature must be addressed across the street with Congress, not in the pages of the U. S. Reports. We have previously and wisely declined "to express [a] view as to [§666's] soundness as a policy matter." Sabri, 541 U. S., at 608, n. But, today, the Court can stay silent no longer. Its decision overrides the intent of Congress—and the policy preferences of the constituents that body represents—as unequivocally expressed by the plain text of the statute.Respectfully, I dissent.

I haven't done a deep dive, but my tentative observation is that the SG is filing fewer petitions on federal criminal issues. Perhaps better to maintain some favorable circuit precedents than risk setting adverse nationwide precedents.

A subtext of this opinion, though not stated, are gifts given to the Justices. The majority opinion lists a wide range of policies that limit gifts to government officials. But the dog that did not bark is the Supreme Court's own ethics code.

Justice Kavanaugh also gave Caitlin Clark a shout-out. See if you can find it.

Bloomberg has a scoop!

The US Supreme Court is poised to allow abortions in medical emergencies in Idaho, according to a copy of the opinion that was briefly posted on the court's website.

The decision would reinstate a lower court order that had ensured hospitals in the state could perform emergency abortions to protect the health of the mother. The briefly posted version indicated the majority will dismiss the case as "improvidently granted."

Bloomberg Law obtained a copy of the opinion that appeared briefly on the court's website as the justices were issuing two other opinions Wednesday morning. The copy of the opinion isn't necessarily the final ruling, given that it hasn't been released.

The Supreme Court's press office didn't immediately respond to a request for comment on this inadvertent release.

This morning I was clicking reload as the opinions were coming down, but I missed this. The link must have been there momentarily.

This is a huge error on the Court's part. For all of the post-Dobbs security measures, this was a self-own. They usually hold all of the DIGs for the last day of the term, but this one came prematurely.

The Court's order from January stated:

The stay shall terminate upon the sending down of the judgment of this Court. VIDED.

Is a cert denial akin to "sending down" a judgment?

In any event, a DIG here is another victory for the Biden Administration.

Update: Bloomberg has more details:

The Supreme Court's press office said the opinion in the case had not been officially released. "The Court's Publications Unit inadvertently and briefly uploaded a document to the Court's website," Patricia McCabe, the court's public information officer. "The Court's opinion in Moyle v. United States and Idaho v. United States will be issued in due course."

The copy indicates the court is voting 6-3 to lift a stay it previously placed on a federal district court order, with conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting. The district court order is designed to stay in place while the litigation goes forward.

The high court decision "will prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman's health," Justice Elena Kagan said in a concurring opinion.

Justice Ketanji Brown Jackson wrote separately to say that she wouldn't have dismissed the case, according to the copy that was briefly online.

"Today's decision is not a victory for pregnant patients in Idaho. It is delay," she wrote. "While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires."

Update: Bloomberg posted a link to the opinion.

It is not formatted as a Supreme Court opinion would be formatted.

The Metadata says the author is "Thomas Houston." There is a notation at the top that says Moyle v. 1.0 5/23/2024 12:00 PM.