The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
The Supreme Court’s upcoming conference – the second January conference — is ordinarily the justices’ last opportunity to add new cases to the docket in time for them to review and decide the disputes by the summer recess. That cutoff may have something to do with the large number of new relists this week. While just one of the 420 cases considered at last week’s conference was a new relist, 27 of the 90 cases slated for this conference – nearly one-third of all cases – are new relists. That is nearly twice as many relists as we had after the end-of-summer long conference
. The volume is so great that I’ll only be able to discuss a few in detail.
Private nondelegation
Seven of the new relists are challenges to the constitutionality of the Horseracing Integrity and Safety Act
, enacted with broad bipartisan support during the waning days of the first Trump administration in an effort to improve safety in the horse-racing industry. Until 2020, the horse-racing industry was governed primarily by the states, resulting in a patchwork of differing regulations. Troubled by the industry’s high rates of injury, death, and use of performance-enhancing drugs, Congress created a private, nonprofit corporation called the Horseracing Integrity and Safety Authority and authorized it to issue nationwide safety and anti-doping rules, monitor state industries for compliance, and sanction or sue violators. The authority is funded primarily through fees on the horseracing industry, collected by the states or by the authority directly. Congress initially gave the Federal Trade Commission limited oversight over the horseracing authority. But in response to legal challenges, Congress amended the law in 2022 to give the FTC the power to make changes to the authority’s rules.
A group of states brought suit in a federal district court in Kentucky, challenging the constitutionality of the HISA and its funding mechanism. They argued that the law was unconstitutional because it delegated federal power to a private company – a concept known as the private nondelegation doctrine. They also argued that forcing the states to fund the authority conscripts state resources to implement a federal program, in violation of a judicial doctrine that bars the federal government from “commandeering” state resources.
The district court dismissed both claims. The U.S. Court of Appeals for the 6th Circuit affirmed
, holding that because a federal agency now has the “final say” over how the private horse-racing authority implements the federal statute, the amended law did not impermissibly delegate authority to a private entity. And the 6th Circuit concluded that the annual fees did not represent impermissible “commandeering.” The states sought Supreme Court review
, but it was denied. Another challenge brought in Arkansas failed, and the U.S. Court of Appeals for the 8th Circuit affirmed
that ruling.
A trade group of thoroughbred racehorse owners and trainers called the National Horsemen’s Benevolent & Protective Association filed a different challenge to the law in Texas. The U.S. Court of Appeals for the 5th Circuit initially ruled that the provisions of the law giving the authority the power to make rules were unconstitutional under the private nondelegation doctrine.
After Congress amended the law to give the FTC the power to make changes to the authority’s rules, the trade group returned to court to renew its challenge. This time, the 5th Circuit concluded that Congress had violated the Constitution by giving the private authority enforcement power
– for example, the power to investigate, issue subpoenas, conduct searches, impose fines, and seek injunctions. It reasoned that the authority was not “function[ing] subordinately” to the FTC when it was enforcing the HISA, which violated the private nondelegation doctrine.
The authority came to the Supreme Court last fall, asking the justices to put the 5th Circuit’s ruling on hold to give it time to seek review of that ruling. The authority noted that the FTC has the power both to stop enforcement actions by the authority and to review decisions once they are made. “That is the same framework,” the authority noted, “that has governed the relationship between the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) for 85 years.”
The Biden administration agreed that the Supreme Court should put the 5th Circuit’s ruling on hold, stressing that the Supreme Court has “long applied a strong presumption in favor of allowing a challenged statute to remain in effect pending judicial review,” particularly when two other federal courts of appeals have upheld the same enforcement provisions.
In a one-paragraph order, the justices granted the authority’s request
. Although they did not provide any explanation for their decision, the justices’ grant of preliminary relief is a strong indication that they believed that they would review the 5th Circuit’s decision. Justice Ketanji Brown Jackson wrote in a brief dissent that the authority had not shown any real emergency justifying the court’s intervention at that stage.
The FTC
, the authority
, Texas
, and participants in the horse-racingindustry
seek review of various aspects of the 5th Circuit’s judgment; the Arkansas challengers
seek review of the 8th Circuit’s decision; and Oklahoma, Louisiana, and a group of industry challengers seek reconsideration
of the Supreme Court’s decision to deny review of the 6th Circuit decision.
Judicial factfinding for restitution
Under Apprendi v. New Jersey
, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” That rule has been broadly applied in a variety of contexts, and in Southern Union Co. v. United States
, the court held that juries must find all the facts necessary to impose a criminal fine on the defendant.
But what about the imposition of a criminal restitution order? The lower federal courts have held that criminal restitution can be based on facts found by judges. Two years ago, when the Supreme Court denied review on a petition questioning the legality of that practice, Justices Neil Gorsuch and Sonia Sotomayor dissented
. They contended that “it would seem to follow” from Apprendi “that a jury must find any facts necessary to support a (nonzero) restitution order,” and they suggested that the court should take up a lower court ruling to the contrary.
The justices now have the opportunity to act on that suggestion in a trio of petitions filed by two surgeons and the owner of a radiology company, who were convicted of conspiring to pay and receive healthcare bribes and kickbacks. The restitution orders in each of their cases, which ranged in size from $40,000 dollars to $76 million, included amounts allegedly lost by private insurers that were not among the claims submitted to the jury for determination; instead, they were based on facts found solely by a judge. In Rimlawi v. United States
, Shah v. United States
, and Jacob v. United States
, the defendants challenge their restitution orders, arguing that the rule of Southern Union should be extended to the restitution context.
[Disclosure: I am among the counsel to Mrugeshkumar Kumar Shah.]
The constitutionality of assault-weapons bans
On Monday, the justices turned down a challenge to Maryland’s gun-licensing requirement
. But the justices did not act on another challenge from Maryland gun-rights advocates, to the constitutionality of Maryland’s ban on assault rifles, such as AK-47s and AR-15s, which the state adopted in 2013 in the wake of several mass shootings using such weapons.
In 2020, a group of Maryland residents, gun-rights groups, and a firearms dealer sued to challenge the ban. Maintaining that they have a constitutional right to possess common assault rifles, such as AR-15s (the best-selling rifle type in America), these challengers argued that a wholesale ban is incompatible with the Second Amendment.
A federal district court rejected this challenge, and the U.S. Court of Appeals for the 4th Circuit affirmed. Both courts relied on an earlier ruling by the 4th Circuit that had upheld other portions of Maryland’s assault-weapons ban on the ground that there is no fundamental right to possess military-style weapons.
The challengers then sought Supreme Court review. The case was put on hold after the Supreme Court announced it would hear argument in New York State Rifle and Pistol Association v. Bruen
, involving a challenge to New York’s concealed-carry law. The Supreme Court then issued its landmark ruling in that case, holding that laws restricting the right to bear arms are valid under the Second Amendment only if a tradition of such regulation can be found in U.S. history. The justices then sent the challenge to Maryland’s assault-weapons ban back to the 4th Circuit for reconsideration in light of that decision.
The en banc 4th Circuit upheld the law. Writing for the majority, Judge J. Harvie Wilkinson reasoned that, even after Bruen, the Second Amendment does not protect a right to own assault weapons. But even if the Second Amendment did cover assault rifles, the majority continued, Maryland’s law would still be constitutional because it is consistent with a long history of states regulating dangerous firearms.
Five judges dissented, in an opinion written by Judge Julius Richardson. He argued that the majority’s test was “divorced from the [Second Amendment’s] historic scope” and accused the majority of “cherry-pick[ing] various regulations from the historical record” to piece together an “implausible” reading of “our Nation’s historical tradition of firearms regulation.” He argued that the Second Amendment did not permit banning weapons unless they were both dangerous and uncommon, whereas guns like AR-15s are “commonly possessed by law-abiding citizens for lawful purposes.”
In Snope v. Brown
, challengers to the Maryland law argue that the state’s assault-weapons ban is unconstitutional because the Second Amendment protects a right to bear all “arms,” including assault rifles. Further, they contend that Maryland’s outright ban on these weapons is overly restrictive, barring ownership of the most commonly owned assault rifle in the United States.
The state defends the 4th Circuit’s ruling, and it adds that the Supreme Court’s intervention at this point would be premature because the lower courts are only now starting to consider the question of regulating assault weapons in light of Bruen.
It would probably crash the internet to write up all 17 of the other relists, but the questions presented in each of this week’s new relists are set forth below.
New Relists
Rimlawi v. United States
, 24-23 Issues: (1) Whether the court of appeals erred in applying the guilt-based approach, rather than the error-based approach, to assess the harmlessness of the confrontation clause error; and (2) whether, under Apprendi v. New Jersey
, the facts underlying a restitution award must be proved to, and found by, a jury beyond a reasonable doubt (and, in federal cases, charged in a grand jury indictment).
(Relisted after the Jan. 10 conference.)
Shah v. United States
, 24-25 Issue: Whether the Sixth Amendment reserves to juries the determination of any fact underlying a criminal restitution order.
(Relisted after the Jan. 10 conference.)
Ocean State Tactical, LLC v. Rhode Island
, 24-131 Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10 conference.)
Pina v. Estate of Jacob Dominguez
, 24-152 Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred, so as to warrant summary reversal, by refusing qualified immunity without identifying any precedent finding a Fourth Amendment violation based on similar facts and, indeed, overriding its own cases holding an officer would not violate the Constitution under the circumstances the jury found.
(Relisted after the Jan. 10 conference.)
Snope v. Brown
, 24-203 Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10 conference.)
Woodward v. California
, 24-227 Issue: Whether the Supreme Court of California’s narrow test for an “acquittal,” limited only to circumstances where the record clearly shows that the judge correctly applied the substantial-evidence standard, conflicts with this court’s precedent under the Fifth Amendment’s double jeopardy clause.
(Relisted after the Jan. 10 conference.)
Mahmoud v. Taylor
, 24-297 Issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.
(Relisted after the Jan. 10 conference.)
Laboratory Corp of America Holdings v. Davis
, 24-304 Issue: Whether a federal court may certify a class action when some of its members lack any Article III injury.
(Relisted after the Jan. 10 conference.)
Soto v. United States
, 24-320 Issue: What test courts and agencies should use to determine whether, when a person makes a demand for money from the federal government pursuant to federal statute, that statute includes a settlement procedure that displaces the default procedures and limitations set forth in the Barring Act
.
(Relisted after the Jan. 10 conference.)
Franklin v. New York
, 24-330 Issues: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.
(Relisted after the Jan. 10 conference.)
Speech First, Inc. v. Whitten
, 24-361 Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.
(Relisted after the Jan. 10 conference.)
Martin v. United States
, 24-362 Issue: (1) Whether the Constitution’s supremacy clause bars claims under the Federal Tort Claims Act
— a federal statute enacted by Congress — when the negligent or wrongful acts of federal employees “have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law;” and (2) whether the act’s discretionary-function exception
bars claims for torts arising from wrong-house raids and similar negligent or wrongful acts by federal employees.
(Relisted after the Jan. 10 conference.)
Oklahoma Statewide Charter School Board v. Drummond
, 24-394 Issues: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.
(Relisted after the Jan. 10 conference.)
St. Isidore of Seville Catholic Virtual School v. Drummond
, 24-396 Issues: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.
(Relisted after the Jan. 10 conference.)
Oklahoma v. United States
, 23-402 Issues: (1) Whether the Horseracing Integrity and Safety Act of 2020
violates the private nondelegation doctrine; and (2) whether the act violates the anti-commandeering doctrine by coercing states into funding a federal regulatory program.
(Relisted after the Jan. 10 conference.)
Davis v. Smith
, 24-421 Issue: Whether the U.S. Court of Appeals for the 6th Circuit exceeded its powers under the Antiterrorism and Effective Death Penalty Act
in concluding that “every fairminded jurist would agree” that the Ohio courts violated the Constitution in refusing to bar testimony from a victim of an attempted murder identifying her attacker.
(Relisted after the Jan. 10 conference.)
Jimerson v. Lewis
, 24-473 Issue: Whether Maryland v. Garrison
clearly established that officers violate the Fourth Amendment when they search the wrong house without checking the address or conspicuous features of the house to be searched.
(Relisted after the Jan. 10 conference.)
Gulf Coast Racing, L.L.C. v. Horseracing Integrity and Safety Authority, Inc.
, 24-489 Issues: (1) Whether Congress can empower a purportedly private nonprofit entity to regulate an entire industry nationwide through rulemaking, adjudication and enforcement powers, and therefore to exercise significant authority pursuant to the laws of the United States, without proper appointments under the appointments clause of the Constitution; and (2) whether statutorily empowering a private nonprofit corporation to regulate an entire industry nationwide through rulemaking, adjudication and enforcement violates the private nondelegation doctrine.
(Relisted after the Jan. 10 conference.)
Jacob v. United States, 24-5032 Issue: Whether the Sixth Amendment reserves to juries the determination of any fact underlying a criminal restitution order.
(Relisted after the Jan. 10 conference.)
Bowe v. United States, 24-5438 Issues: (1) Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255; (2) Whether 28 U.S.C. § 2244(b)(3)(E) deprives this Court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under 28 U.S.C. § 2255.
(Relisted after the Jan. 10 conference.)
Returning Relists
Andrew v. White
, 23-6573 Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona
.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)
Turco v. City of Englewood, New Jersey
, 23-1189 Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado
.
(Relisted after the Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)
Carter v. United States
, 23-1281 Issues: (1) Whether Feres v. United States
should be limited not to bar tort claims brought by service members alleging medical malpractice who were under no military orders, not engaged in any military mission, and whose military status was retroactively altered from inactive to active duty post medical malpractice; and (2) whether the Feres doctrine conflicts with the plain language of the Federal Tort Claims Act
and should thus be clarified, limited, or overruled.
(Relisted after the Dec. 6, Dec. 13 and Jan. 10 conferences.)
Apache Stronghold v. United States
, 24-291 Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act
, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13 and Jan. 10 conferences.)
The Supreme Court on Wednesday was divided over a challenge to a Texas law that requires pornography sites to verify the age of their users before providing access. Last year a federal appeals court in New Orleans allowed the state to enforce the law, holding that it was rationally related to the government’s interest in preventing young people from viewing porn.
After more than two hours of debate on Wednesday, it was not clear whether a majority of the justices were ready to uphold the lower court’s ruling. Some justices seemed to agree with the challengers, led by a trade group for the adult entertainment industry, that a federal appeals court in New Orleans should have applied a more stringent test to determine whether the law violates the First Amendment. But even that ruling might prove to be only a limited victory for the challengers in the short term.
The law at the center of the case is known as H.B. 1181. A federal judge in Austin, Tex., issued an order shortly before H.B. 1181 was slated to go into effect in 2023 that temporarily barred the state from enforcing it. Senior U.S. District Judge David Alan Ezra concluded that the law is likely unconstitutional.
But the 5th Circuit lifted Ezra’s order, clearing the way for the state to implement the age-verification requirement. The court of appeals applied a less rigorous standard of review, known as rational-basis review, than Ezra had used. That test looks at whether the law advances a legitimate state interest and, if so, whether there is a rational connection between that interest and the law. By contrast, the more rigorous standard of review, known as strict scrutiny, requires the government to show that the law serves a compelling government interest and is narrowly drawn to advance that interest.
Representing the challengers, Derek Shaffer told the justices that the 5th Circuit’s decision to apply rational-basis review was an “aberrant holding” that defies the Supreme Court’s “consistent precedents,” including the Supreme Court’s 2004 decision in Ashcroft v. ACLU, in which the justices applied strict scrutiny and concluded that a federal law – the Child Online Protection Act – similar to H.B. 1181 was likely unconstitutional.
Brian Fletcher, the principal deputy solicitor general who argued on behalf of the Biden administration, agreed with Shaffer that the court of appeals was wrong when it applied the less rigorous standard of review. But that should not prevent Congress or the states from preventing the distribution of pornography to children online, Fletcher emphasized.
Defending the law, Texas solicitor general Aaron Nielson stressed that the challengers do not dispute that the websites that H.B. 1181 targets harm children. When the Supreme Court faced a similar situation more than 50 years ago, in Ginsberg v. New York, he noted, it applied rational-basis review to a law that made it a crime for brick-and-mortar stores to sell pornographic magazines to young people.
If strict scrutiny applied to H.B. 1181, Nielson told the justices, Texas would have to satisfy the same high standard to keep children from entering strip clubs – something that the Supreme Court’s cases do not require, he said. And Texas has long tried to use content-filtering software, which the challengers cite as an alternative to H.B. 1181’s age-verification requirement, to keep children from having access to pornography, but the problem “has only gotten worse.”
Chief Justice John Roberts and Justice Clarence Thomas appeared to suggest that even if the Supreme Court had in the past applied strict scrutiny to laws regulating adults’ access to sexually explicit content, advances in technology might justify taking another look at the standard of review. Access to pornography, Roberts observed has “exploded”: Not only is it much easier for teenagers to get access to porn, but the kind of porn that they can access has changed as well, becoming much more graphic.
Thomas noted that when the court issued its decision in Ashcroft, it was in a “world of dial-up Internet” access. “You would admit that we’re in an entirely different world” now, he said.
Shaffer resisted the idea that changes in technology justified a change in the standard of review. While acknowledging that the government has a compelling interest in preventing young people from gaining access to porn – the first part of the strict scrutiny test – he stressed that technological advances would merely be something to consider as part of the determination whether strict scrutiny is satisfied.
Justice Amy Coney Barrett, one of the justices on the court with teenaged children, also addressed the issue of technology and in particular the effectiveness of content-filtering software. She pointed out that it has “been 20 years” since the court’s ruling in Ashcroft, and that young people can now “get online porn through gaming systems, tablets.” “I can say from personal experience,” she told Shaffer ruefully, that content-filtering software for different systems that children can use to access the internet “is difficult to keep up with.”
Justice Samuel Alito echoed Barrett’s concerns, asking Shaffer whether he knows “a lot of parents who are more tech savvy than their 15-year-old children”? “There’s a huge volume of evidence,” Alito maintained, “that filtering doesn’t work.” Why, he queried, would so many states – 19 in total – have adopted age-verification requirements “if the filtering is so good?”
Justice Ketanji Brown Jackson countered that advances in technology would in any event “cut[] both ways”: Although such advances would increase young people’s access to technology and make porn more ubiquitous, she said, it also increases the burdens on adults who want to view porn online because of the greater likelihood that their privacy will be infringed.
Justice Sonia Sotomayor noted that she believed that many of her colleagues’ questions actually addressed the question of whether H.B. 1181 could satisfy strict scrutiny, rather than the question of what standard of review should apply in the first place. In her view, the answer to the latter question was a straightforward one, based on the Supreme Court’s cases: strict scrutiny.
Jackson agreed, emphasizing that Ginsberg – the case on which the court of appeals relied – was a case that dealt with the rights of young people, rather than the rights of adults.
Shaffer agreed. He told the justices that Ginsberg addressed only the rights of minors and did not impose an across-the-board age-verification requirement.
But even if the justices ultimately agree that the court of appeals applied the wrong standard, the law could remain in effect for the foreseeable future. The challengers had asked the Supreme Court both to hold that the 5th Circuit should have applied strict scrutiny and that the law fails that test, but it seemed possible that the justices could ignore the second question and instead send the case back for another look. In that case, Ezra’s order blocking the law could remain on hold while proceedings continue, allowing Texas to continue enforcement.
A decision in the case is expected by late June or early July.
The Supreme Court will hear oral arguments on Tuesday in a clash over whether a North Carolina-based company can challenge the Food and Drug Administration’s denial of its application to market e-cigarettes in the conservative U.S. Court of Appeals for the 5th Circuit, based in Louisiana. The company, R.J. Reynolds Vapor Company, joined a lawsuit by retailers based in Texas and Mississippi – two states covered by the 5th Circuit.
Although the dispute may seem like a technical one, the FDA contends that the stakes are high. If the lower court’s decision allowing RJR Vapor’s case to go forward stands, the FDA says, other manufacturers will also try to get around the restrictions that federal law imposes on where such challenges can be filed. More broadly, the FDA cautions, the 5th Circuit’s ruling could open the door to efforts by other plaintiffs to file their challenges to federal agency actions in courts that they believe will be friendly to them. That kind of forum-shopping, the FDA suggests, is “harmful to the Judiciary.”
The law at the center of the case is the Family Smoking Prevention and Tobacco Control Act. Enacted in 2009, it gives the FDA the power to regulate tobacco products and requires manufacturers to obtain the FDA’s permission before putting a new tobacco product on the market.
If the FDA denies a marketing request, the law provides that “any person adversely affected” by that denial can “file a petition for judicial review of such regulation or denial with the United States Court of Appeals for the District of Columbia Circuit or for the circuit in which such person resides – which, for a corporation, is usually where it is incorporated – “or has their principal place of business.”
In 2016, the FDA issued a rule indicating that the law applies to e-cigarettes and e-liquids. RJR Vapor applied for permission to market (among others) its menthol-flavored Vuse brand e-cigarettes, which is one of the most popular e-cigarette brands among adults. The FDA rejected RJR Vapor’s application, finding that it had not shown (as the law requires) that its product would be “appropriate for the protection of the public health.”
The Supreme Court heard arguments in December in a separate dispute over the FDA’s rejection of two different companies’ applications to sell flavored vape liquids. The 5th Circuit set aside the FDA’s denials in those cases, accusing the agency of sending those companies and other manufacturers “on a wild goose chase.”
RJR Vapor is incorporated in and has its principal place of business in North Carolina, which is part of the U.S. Court of Appeals for the 4th Circuit – which had turned aside challenges to the FDA’s denials of applications to sell e-cigarette products. Instead, RJR Vapor filed a petition for review in the 5th Circuit, joined by Avail Vapor, a Texas retailer that sells its products, and by a trade association for Mississippi gas stations and convenience stores that sell RJR Vapor’s products.
A divided panel of the 5th Circuit denied the FDA’s motion to transfer the case to the D.C. Circuit. In an unsigned order, the majority – made up of Judge Edith Jones, a Reagan appointee, and Judge James Ho, a Trump appointee – explained that Avail Vapor and the trade association “are undisputedly in this circuit,” and they were “adversely affected by” the denial because the retailers indicated that they would go out of business if the denial stood.
Judge Stephen Higginson, an Obama appointee, dissented. He would have transferred the case to either the D.C. Circuit or the 4th Circuit.
The FDA came to the Supreme Court, which agreed in October to weigh in.
In its brief in the Supreme Court, the FDA urges the justices to reverse the 5th Circuit’s decision and send the case back to the court of appeals with instructions to send it to the D.C. Circuit. The FDA tells the court first that the retailers do not have the right to go to court seeking review of the FDA’s denial of RJR Vapor’s application.
The FDA points to the law’s use of the phrase “adversely affected” to describe who can file a petition for review of the FDA’s denial of a marketing application. That phrase, the FDA stresses, is a term of art in federal administrative law that invokes a doctrine known as the “zone of interests” test – the idea that someone can only go to court to seek review of an agency action if it is relying on an interest that is among those protected by the law at the center of the dispute.
The provision requiring the FDA to rule on an application to market e-cigarette products does not implicate the interests of retailers like Avail or the trade group’s members, the FDA argues. Instead, the agency asserts, when it issues an order ruling on applications like RJR Vapor’s, the order “always or nearly always” only regulates the manufacturer; any effect on retailers is only indirect.
But in any event, the FDA continues, RJR Vapor also cannot rely on the retailers to seek judicial review in the 5th Circuit. The Tobacco Control Act, the FDA writes, “makes clear that a person may sue in a circuit only if that person is based there. A manufacturer may not sue based on a retailer’s residence.”
Although a legal principle known as joinder allow lawsuits that could have been brought separately to be brought and considered together, the FDA acknowledges, that principle does not give the parties more rights or expand the court’s power. Because RJR Vapor is based in North Carolina and incorporated there, it could not file a petition for review in the 5th Circuit, and it also cannot join anyone else’s petition there.
RJR Vapor and the retailers counter that the Supreme Court lacks the power to review this case at all. They say that the general federal law that authorizes the Supreme Court to grant review, and on which the FDA relies, does not give the Supreme Court the power to review non-final orders in cases – like this one – that began in a court of appeals, rather than a federal trial court. At the very least, RJR and the retailers say, “this jurisdictional question is sufficiently complicated and rare that” the justices do not need to address it here and should instead dismiss the case without deciding it.
But if they don’t do that, RJR Vapor and the retailers continue, the Supreme Court should uphold the 5th Circuit’s ruling. The federal law governing administrative agencies applies a “lenient” approach, allowing anyone harmed by an agency’s action to challenge that action if their interests are even “arguably” related to the interests protected by the law.
Here, RJR Vapor and the retailers say, the retailers fall squarely within the law’s definition of “any person adversely affected” by the FDA’s denial of RJR Vapor’s application: The FDA threatened them with enforcement action (which can include criminal penalties) if they did not stop selling the menthol-flavored Vuse brand e-cigarettes at the center of the dispute. But if they cannot sell those e-cigarettes, the retailers explain, they will lose substantial amounts of money, and Avail Texas will likely go out of business.
The structure of the Tobacco Control Act also confirms that the retailers can bring this suit, RJR Vapor and the retailers add. Although the law specifically provides that only an applicant itself can go to court to challenge the withdrawal of marketing authorization, it provides more broadly that “any person adversely affected” can challenge the denial of authorization – which signals that the latter is not limited to applicants. And if “any person adversely affected” is not limited to applicants, then it would apply to the retailers, who after RJR are the most likely to be “adversely affected”
The FDA argues that the 5th Circuit’s rule would also allow “ready evasion” of the limits that the law places on where challenges to the FDA’s orders can be filed. Congress, it stresses, outlined three places where lawsuits may be brought: in the D.C. Circuit, in the place where the plaintiff resides, or in the place where it has its principal place of business. But the 5th Circuit would allow lawsuits to be brought “anywhere in the country so long as” the plaintiff “finds a local retailer willing to join its petition.”
This, the FDA continues, creates incentives for forum-shopping. And indeed, the FDA notes, “[a]t least eight other out-of-circuit manufacturers — based in China, California, Florida, Michigan, North Carolina, Ohio, and Washington — have since relied on the same tactic to seek judicial review in the Fifth Circuit.”
The 5th Circuit’s approach could have ripple effects beyond the Tobacco Control Act, the FDA warns, because other laws authorizing challenges to agency actions contain similar restrictions. “But the logic of the decision below would make it easier for challengers to avoid those restrictions,” the FDA writes, as long as they could find someone who lives in the circuit where they want to file their lawsuit and then “seek review alongside that person.”
And the broader problem of forum-shopping, the FDA concludes, can prove “harmful to the Judiciary.” “When parties throughout the country deploy complex procedural strategems to channel their cases to a single circuit, even when they have no meaningful ties to that circuit,” the FDA posits, “they erode the perception that judicial decisions rest on universally applicable rules of law.”
RJR Vapor and the retailers pushes back against the FDA’s insistence that allowing the case to go forward in the 5th Circuit will circumvent the restrictions that Congress intended in the Tobacco Control Act. Unless the case is brought in the D.C. Circuit, they observe, at least one of the challengers must be in the circuit where the case is filed. “And there are a number of reasons why an out-of-circuit applicant may not be able to find an in-circuit co-petitioner” to bring the case, they add – for example, because the manufacturer sells directly to consumers or because there is not a retailer willing to pursue the litigation.
The Supreme Court will decide whether a group of Maryland parents can opt to have their children exempted from LGBTQ-themed storybooks. The justices on Friday afternoon granted Mahmoud v. Taylor, in which a coalition of parents from Montgomery County, Md., contend that requiring their children to participate in instruction that violates their religious beliefs violates their First Amendment right to freely exercise their religion.
The announcement once again puts the justices in the center of the culture wars. It came just over six weeks after the justices heard oral arguments in a challenge to Tennessee’s ban on gender-affirming care for minors. In that case, three transgender teens and their parents argue that the ban violates the Constitution’s guarantee of equal protection. They had asked the court also to decide whether the law violates the rights of parents to make decisions about their children’s medical care, but the justices declined to take up that question.
The dispute over the storybooks has its roots in the county’s 2022 approval of books featuring LGBTQ characters for inclusion in its language-arts curriculum. One book used for young children, Pride Puppy, tells the story of a puppy that gets lost during an LGBTQ Pride parade.
When the county announced in 2023 that it would not allow parents to opt to have their children excused from instruction involving the storybooks, a group of Muslim, Jewish, and Christian parents went to federal court.
The lower courts declined to issue an order that would temporarily require the county to notify the parents when the storybooks would be used and give them a chance to opt out of instruction. The U.S. Court of Appeals for the 4th Circuit explained that on the “threadbare” record before it, the parents had not shown that exposure to the storybooks compelled them to violate their religion.
The parents came to the Supreme Court in September, and the justices agreed on Friday to weigh in.
The parental rights dispute was one of five cases granted on Friday afternoon, all of which will likely be argued in the spring at the end of the court’s current term.
In A.J.T. v. Osseo Area Schools, the court agreed to weigh in on the standard of review when children with disabilities allege discrimination in education. The U.S. Court of Appeals for the 8th Circuit held that the children must show that school officials acted with “bad faith or gross misjudgment,” but the plaintiff in the case – a teenage girl who suffers from severe epilepsy – contends that a less rigorous standard applies.
In Parrish v. United States, the justices will decide a procedural question relating to appeals. Specifically, when a litigant files a notice of appeal after the time to do so has expired, does he have to file a second notice when the time to appeal is reopened?
In Soto v. United States, the justices agreed to decide a technical question related to compensation for combat veterans.
And in Bowe v. United States, the justices will consider procedural questions arising from the application of the federal laws governing post-conviction relief for federal prisoners.
The justices did not act on some of the other high-profile cases that they considered at Friday’s conference, including the challenge to Maryland’s ban on assault rifles and a group of cases challenging a law enacted to improve safety in the horse-racing industry. The justices could act on those cases as soon as Tuesday at 9:30 am.
We are expecting one or more opinions from the court this morning at 10 a.m. EST. Join us for the live blog
or follow along with Katie Barlow on TikTok
.
The court will then hear oral arguments in Free Speech Coalition v. Paxton, a First Amendment challenge to a Texas law requiring pornography sites to identify the age of their users before granting access. Listen to the argument live shortly after 10 a.m. EST
.
Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Wednesday morning read:
The Supreme Court on Wednesday unanimously upheld a federal law that will require TikTok to shut down in the United States unless its Chinese parent company can sell off the U.S. company by Jan. 19. In an unsigned opinion
, the justices acknowledged that, “for more than 170 million Americans,” the social media giant “offers a distinct and expansive outlet for expression, means of engagement, and source of community.” But, the court concluded, “Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.”
At oral arguments on Jan. 10, TikTok’s lawyer, Noel Francisco, told the justices that TikTok would “go dark” in the United States if the company did not prevail in its challenge to the law. However, in a statement issued shortly after the ruling, White House press secretary Karine Jean-Pierre indicated that with the law set to go into effect just one day before President-elect Donald Trump takes office, the Biden administration “recognizes that actions to implement the law simply must fall to the” Trump administration.
Trump, who supported a ban during his first term in office but now opposes shutting down TikTok, had urged the justices to delay the ban’s effective date to give his administration a change to “pursue a negotiated resolution” when it took office on Jan. 20. TikTok’s CEO Shou Chew plans to attend Trump’s inauguration on Monday and has been invited to sit in a section reserved for dignitaries and important guests.
The law at the center of the case is the Protecting Americans from Foreign Controlled Applications. Passed in 2024 to address national security concerns, the law bars the use of apps controlled by “foreign adversaries” of the United States, including China. More specifically, the law defines apps controlled by foreign adversaries to include any app run by TikTok or ByteDance. The law makes it illegal for U.S. companies to provide services to distribute, maintain, or update TikTok unless the app’s Chinese parent company sells it. This means, as ABC News reported on Thursday
, that app stores and internet hosting services would be exposed to liability if they continued to provide services to TikTok after Jan. 19.
TikTok, ByteDance, and a group of TikTok users went to federal court in Washington, D.C., where they argued that the law violates the First Amendment. The U.S. Court of Appeals for the District of Columbia Circuit disagreed. Senior Judge Douglas Ginsburg explained that the law was “carefully crafted to deal only with control by a foreign adversary” and “part of a broader effort to counter a well-substantiated national security threat posed by the People’s Republic of China.”
Just over a month before the law was scheduled to go into effect, the Supreme Court agreed to take up the case and fast-track it, hearing oral arguments on Jan. 10.
In a 19-page unsigned opinion, the court began by stressing the extent to which the challenge to the TikTok law involves “new technologies with transformative capabilities” – which, in turn, the court said, “counsels caution on our part.” The court’s analysis in its opinion, the opinion warned, “must be understood to be narrowly focused in light of these circumstances.”
The court assumed for the sake of argument that the provisions of the law at issue implicate First Amendment interests. But even if that is true, the court reasoned, they are not subject to the most stringent test, known as strict scrutiny, to determine whether they are constitutional. The court acknowledged that laws that single out specific speakers for restrictions are often subject to strict scrutiny. But strict scrutiny is not warranted, the court continued, when the differential treatment is justified by special features of the speaker – for example, as here, “a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million users.” However, although that special treatment may be justified here, the court warned, a “law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.”
The provisions of the TikTok law, the court explained, are instead subject to a less rigorous test, known as intermediate scrutiny, which requires courts to look at whether the provisions of the law advance an important government interest that is not related to the suppression of free expression and do not restrict substantially more speech than is necessary to do so.
The TikTok provisions satisfy that test, the court concluded. There is no dispute, the court wrote, that the government “has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users.”
And although TikTok contends that it is “unlikely” that China would require the company to turn over its users’ data, the court explained, “the Government’s TikTok-related data collection concerns do not exist in isolation. The record reflects that China ‘has engaged in extensive and years-long efforts to accumulate structured datasets, in particular on U.S. persons, to support its intelligence and counterintelligence operations.”
Moreover, the court continued, the law is “sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U.S. persons who use TikTok.” The ban on control by a foreign adversary, the court said, “account for the fact that,” unless TikTok is sold, “TikTok’s very operation in the United States implicates the Government’s data collection concerns, while the requirements that make a divestiture ‘qualified’ ensure that those concerns are addressed before TikTok resumes U.S. operations.”
The other options that TikTok and its creators offered as alternators to a TikTok ban – such as disclosure requirements and restrictions on data sharing – do not change this conclusion, the court stressed. Courts should generally give the government “latitude” in situations like these, the court wrote. And in particular, whether the provisions of the law are constitutional should not hinge “on whether we agree with the Government’s conclusion that its chosen regulatory path is best or ‘most appropriate.’”
Justice Sonia Sotomayor wrote a brief opinion concurring in part and concurring in the judgment. She stressed that she saw “no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does.”
In a five-page opinion concurring only in the judgment, Justice Neil Gorsuch – perhaps the most skeptical of the law at oral argument last week – emphasized that the court was correct in not “endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’” to justify the TikTok ban. “One man’s ‘covert content manipulation,’” he observed, “is another’s ‘editorial discretion.’”
Gorsuch also suggested that the law should have been subjected to strict scrutiny, rather than intermediate scrutiny, but he indicated that it may not have ultimately made a difference in the outcome. He deemed himself “persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans.”
The law, he concluded, “also appears appropriately tailored to the problem it seeks to address.” He acknowledged that the “remedy Congress and the President chose” – shutting down TikTok if its Chinese parent does not sell it – “is dramatic.” “But before seeking to impose that remedy,” he noted, Congress and the executive branch “spent years in negotiations with TikTok exploring alternatives and ultimately found them wanting. And from what I can glean from the record,” Gorsuch wrote, “that judgment was well founded.”
Gorsuch observed that the case had moved through the Supreme Court quickly, and he indicated that he did not have “the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional.”
We are expecting one or more opinions from the court this morning at 10 a.m. EST. Join us for our live blog
. Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Friday morning read:
