SCOTUS Term 25-26

[Finance85]

Article III, Sections 20 and 21. It's incredibly cut and dry.


SECTION 20. Standards for establishing congressional district boundaries.—In establishing congressional district boundaries:
(a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.
(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection 1(a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
(c) The order in which the standards within subsections 1(a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.
History.—Proposed by Initiative Petition filed with the Secretary of State September 28, 2007; adopted 2010.
1Note.—The subsections of section 20, as it appeared in Amendment No. 6, proposed by Initiative Petition filed with the Secretary of State September 28, 2007, and adopted in 2010, were designated (1)-(3); the editors redesignated them as (a)-(c) to conform to the format of the State Constitution.
SECTION 21. Standards for establishing legislative district boundaries.—In establishing legislative district boundaries:
(a) No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.
(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection 1(a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
(c) The order in which the standards within subsections 1(a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.

Are you familiar with the congressional district previously represented by Corrine Brown?

Are you familiar with Louisiana v. Callais?

Can you show on Florida's redistricting map where they have violated the state Constitution? That map is widely available online.

I'm not trying to put you on the defensive. I'm trying to understand your claim under the circumstances.

 

[FLaw47]

Are you familiar with the congressional district previously represented by Corrine Brown?

Are you familiar with Louisiana v. Callais?

Can you show on Florida's redistricting map where they have violated the state Constitution? That map is widely available online.

I'm not trying to put you on the defensive. I'm trying to understand your claim under the circumstances.

They've explicitly said they're doing this to get more Republican seats.

 

[Finance85]

They've explicitly said they're doing this to get more Republican seats.

Who are they?

 

[FLaw47]

Who are they?

Donald Trump, Ron DeSantis, and the Florida legislators who are trying to pass this. It's explicit. Are you daft?

 

[Aardvark86]

Who are they?

Not only the legislators, but I’m pretty sure their counsel was pretty clear to the court that if the partisanship restrictions were still valid, they had a problem.

 

[Aardvark86]

Orders today, opinions Thursday. No grants today, but one quirky little case.

FL sued CA and WA, based on those states' grant of a truck driving license to an illegal immigrant who was not proficient in English as required under federal law for operating carrier vehicles. Said immigrant pulled a wildly illegal u-ey over a median in FL and killed three people in the process. FL essentially brought suit to try to force CA and WA to enforce federal English proficiency requirements in their licensing process. Sure sounds like a loser case to me. Recall though that suits between states are in the exclusive original jurisdiction of SCOTUS (ie, Scotus effectively acts as the trial court, usually through a special master). However, Scotus takes the position that it has discretion not to accept certain cases, and it denied Florida's request to file its claim here without any opinion. Thomas filed an interesting dissent to the effect that original jurisdiction in claims between state parties isn't something the court has discretion to exercise (though it may of course deny claims on their merits), and its failure to do so may leave states with no legal forum to bring claims against other states. All's well that ends well, I suppose, given the obviously weak and political claim, but there is a certain appeal to this argument.

 

[Finance85]

Donald Trump, Ron DeSantis, and the Florida legislators who are trying to pass this. It's explicit. Are you daft?

Maybe. I tend to question statements that are non-specific and blatantly partisan.

 

[Sullivan]

Orders today, opinions Thursday. No grants today, but one quirky little case.

FL sued CA and WA, based on those states' grant of a truck driving license to an illegal immigrant who was not proficient in English as required under federal law for operating carrier vehicles. Said immigrant pulled a wildly illegal u-ey over a median in FL and killed three people in the process. FL essentially brought suit to try to force CA and WA to enforce federal English proficiency requirements in their licensing process. Sure sounds like a loser case to me. Recall though that suits between states are in the exclusive original jurisdiction of SCOTUS (ie, Scotus effectively acts as the trial court, usually through a special master). However, Scotus takes the position that it has discretion not to accept certain cases, and it denied Florida's request to file its claim here without any opinion. Thomas filed an interesting dissent to the effect that original jurisdiction in claims between state parties isn't something the court has discretion to exercise (though it may of course deny claims on their merits), and its failure to do so may leave states with no legal forum to bring claims against other states. All's well that ends well, I suppose, given the obviously weak and political claim, but there is a certain appeal to this argument.

It appears to be a strong case. Just currently not in the right venue.

I expect this to be filed in the Florida State Supreme court. The state of Florida will win. CA and Washington will then try to fight the case with the U.S. Supreme Court. And Florida will likely win that case.

 

[Aardvark86]

It appears to be a strong case. Just currently not in the right venue.

I expect this to be filed in the Florida State Supreme court. The state of Florida will win. CA and Washington will then try to fight the case with the U.S. Supreme Court.

No, a state cannot bring a claim against another state in its own court. It may only bring it in SCOTUS under 28 USC 1251.

 

[Sullivan]

No, a state cannot bring a claim against another state in its own court. It may only bring it in SCOTUS under 28 USC 1251.

This is what's already being done:

State-Level Invalidation of Out-of-State Licenses
Some states have passed laws that specifically refuse to recognize driver's licenses issued by other states to undocumented immigrants. [1]

• Florida: Since July 2023, Florida has maintained a list of invalid out-of-state licenses that are not accepted within the state if they were issued to individuals who cannot prove lawful presence.
• New Hampshire: A law signed in August 2025 denies driving privileges to any person using an out-of-state license if they are an illegal immigrant.
• Wyoming: In February 2025, legislation was passed to invalidate out-of-state licenses or nonresident operating privileges for "unauthorized aliens".
• Tennessee: Similar legislation has been introduced to make certain out-of-state licenses issued to undocumented immigrants invalid

 

[Aardvark86]

This is what's already being done:

State-Level Invalidation of Out-of-State Licenses
Some states have passed laws that specifically refuse to recognize driver's licenses issued by other states to undocumented immigrants. [1]

• Florida: Since July 2023, Florida has maintained a list of invalid out-of-state licenses that are not accepted within the state if they were issued to individuals who cannot prove lawful presence.
• New Hampshire: A law signed in August 2025 denies driving privileges to any person using an out-of-state license if they are an illegal immigrant.
• Wyoming: In February 2025, legislation was passed to invalidate out-of-state licenses or nonresident operating privileges for "unauthorized aliens".
• Tennessee: Similar legislation has been introduced to make certain out-of-state licenses issued to undocumented immigrants invalid

That of course is a different approach entirely; no comment on whether those laws may have their own vulnerabilities, at least as to carrier licenses.

 

[Aardvark86]

Opinions today.. First up is Fernandez (sentencing guidelines) from Barrett (8-1, jackson dissenting). Doubt about defendant's guilt is not a permissible factor for shortening sentence in collateral attack. And Rutherford, also a sentencing case and also from Barrett (6-3 conservative/liberal lineup).

Now, Pitchford, from Kavanaugh, relating to preemptory strikes in capital cases. Death penalty relief for the defendant, with Kav, Chief, and the three liberals ruling for the D in a race based challenge to use of strikes! Interestingly, apparently the same prosecutor and judge as another preemptory strike case a few years back.

And now Flowers Foods, unanimous from Gorsuch - a worker on a wholly intrastate leg of a broader insterstate distribution is engaged in interstate commerce for purposes of an arbitration law exception. Thought this might produce some interesting musings on commerce clause stuff, but maybe not...

 

[Aardvark86]

just got in from trip home. 3 Opinions today.
1. SEC disgorgement remedy does not require showing of loss to investors.
2. No jury trial for FCC forfeiture orders given their preliminary nature.
3. FDA skinny label - no patent infringement for marketer of gx drug for a single indication not protected by patent, despite other indications being protected.

Also, saw an order re: AL redistricting from tuesday night which looked weird from a purcell persepctive but won't likely be able to look at it today.

 

[RoseBowlorBust]

The SCOTUS is a corrupt, paid for disgrace.

 

[Aardvark86]

A pretty quiet/dull order list today, except for one semi-humorous item. The Court has suspended from Scotus practice, and issued a show cause order for the disbarment of, Larry Klayman, the guy who was constantly suing the Clintons via "Judicial watch".

 

[fatpiggy]

Seems like a big deal. They are saying this change was allowed due to the Calais (sp?) ruling.

The constitution should be colorblind.

No more equal outcomes, just equal opportunity. Big step in the right direction.

 

[Aardvark86]

Seems like a big deal. They are saying this change was allowed due to the Calais (sp?) ruling.

The constitution should be colorblind.

No more equal outcomes, just equal opportunity. Big step in the right direction.

Yes and no, having read the opinion on the commute in this am. More to come when I get to the office

EDIT - I put my thoughts in the other thread specific to this.

 

[Aardvark86]

Opinions this morning boys and girls. We have some big ones outstanding and most of the older dull ones have been cleared out.

 

[Aardvark86]

Here we go - looks like we're getting a couple of opinions...


First up, Keathly, a dull bankruptcy case from Justice Jackson. Unanimous.

Now it's FS Credit, regarding rights of action under the Investment Co Act. No private right of action to invalidate contracts that violate the statute. Not surprising given usual disfavor of implied rights of action 6-3 Barrett.. note, for financial services/commercial lawyers this one is actually important even if it is dull.

We're officially starting to run out of dull cases.

Finally, Abouammo, another dull venue case. Looks like I spoke too soon. Unanimous, from Kagan.

fyi - based on who's written so far, we have a bunch of opinions coming from Roberts, Alito, and Kavanaugh

 

[Aardvark86]

just a quick note that we are again expecting opinions on Thursday. And I really mean it - we're starting to run out of the boring cases.

But yesterday, a really interesting cert grant for next term -- whether the Sixth Amendment actually requires that criminal juries be composed of 12 persons, and not fewer (as Florida and other states allow in some cases). The case seeks to overrule a 1970 case saying less than 12 was fine, seemingly based mostly on the rise of "history and tradition" jurisprudence.

 

[DCandtheUTBand]

And now Flowers Foods, unanimous from Gorsuch - a worker on a wholly intrastate leg of a broader insterstate distribution is engaged in interstate commerce for purposes of an arbitration law exception. Thought this might produce some interesting musings on commerce clause stuff, but maybe not...

Elaborate in layman's terms.

IMHO I think the commerce clause has been heavily abused since FDR. Help me understand the unanimous nature of the ruling.
TIA

 

[Moogy]

Elaborate in layman's terms.

IMHO I think the commerce clause has been heavily abused since FDR. Help me understand the unanimous nature of the ruling.
TIA

Holding​

The Federal Arbitration Act’s exemption from compelled arbitration for workers “engaged in . . . interstate commerce" can apply to a worker who transports goods on an intrastate leg of an interstate journey and who does not cross state lines or interact with vehicles that do.

This case involved a franchisee who would pick up the defendant's (Flowers) product in a warehouse in Colorado, and distribute that product to stores within Colorado's borders. He alleged that Flowers underpaid him. If this was intrastate commerce, under the Federal Arbitration Act, plaintiff might be forced to go to arbitration to resolve the dispute. If it was deemed interstate commerce, plaintiff might be exempt from being forced to go to arbitration and could, instead, sue Flowers for the monies allegedly owed, in court. The USSCt deemed this to be "interstate commerce" because the product was ultimately sold via a distribution process that crossed state lines, even if defendant himself wasn't involved in the "interstate" portion of that distribution cycle.

 

[Aardvark86]

Holding​

The Federal Arbitration Act’s exemption from compelled arbitration for workers “engaged in . . . interstate commerce" can apply to a worker who transports goods on an intrastate leg of an interstate journey and who does not cross state lines or interact with vehicles that do.

This case involved a franchisee who would pick up the defendant's (Flowers) product in a warehouse in Colorado, and distribute that product to stores within Colorado's borders. He alleged that Flowers underpaid him. If this was intrastate commerce, under the Federal Arbitration Act, plaintiff might be forced to go to arbitration to resolve the dispute. If it was deemed interstate commerce, plaintiff might be exempt from being forced to go to arbitration and could, instead, sue Flowers for the monies allegedly owed in court. The USSCt deemed this to be "interstate commerce" because the product was ultimately sold via a process that crossed state lines, even if defendant himself wasn't involved in the "interstate" portion of that distribution cycle.

Why thank you, Moogy.

I tend to agree with the PP that some bad historical commerce clause interpretations (driven by political pressure I might add) have made for some bad law and policy and resulted in some federal overreach over the years. But this was not the case to try to rein any of that back -- the reality is that the overall end-to-end distribution was interstate, and the arbitration act exemption exists with that in mind. This is slicing off the "last mile" distribution leg as if it were distinct and segregable from everything that had come before it in the broader distribution transaction, when it's not, rather than some mom-and-pop craft store of locally made items.

 

[Finance85]

Elaborate in layman's terms.

IMHO I think the commerce clause has been heavily abused since FDR. Help me understand the unanimous nature of the ruling.
TIA

It's been heavily abused since Gibbons v Ogden. Wickard (1942) was the final nail.

As you all might be able to tell, I'm more of a purist than even Gorsuch. Alas, there's no practical way to make it right.

 

[Aardvark86]

It's been heavily abused since Gibbons v Ogden. Wickard (1942) was the final nail.

As you all might be able to tell, I'm more if a purist than even Gorsuch. Alas, there's no practical way to make it right.

Gibbons.... Nice. You really are a purist. (I'm more in the Bork camp of "yeah, it was wrongly decided but there's just way too much built on it to start a game of Jenga with it.)

A real historical shame that it wasn't the Vanderbilt case...

 

[Aardvark86]

So in anticipation of opinions tomorrow, I took a peek at what's outstanding. It's going to be a really busy and interesting 2-3 weeks, with 19-20 cases outstanding. My guess is they go to July 2, which means slightly more than 6 opinions per week.

Of the 19 outstanding, the highlights include:

-Landor (prisoner dreadlocks haircut case for Rastafarian)
-Slaughter (FTC/appointments clause/unitary exec)
-NRSC (political parties coordinate with pacs on spend)
-Little/BPJ (TG athletes)
-Wolford (HI 2A case involving carry on private property)
-Cook (Fed/appointments clause/unitary exec)
-Pung (Takings)
-Hemai (2A addiction restrictions)
-Watson (mail ballots) [this is the case I really have my eye on]
-Mullins (immigration, asylum, and what side of the border you have to be on)
-Barbara (birthright citizenship)
-Monsanto (Roundup preemption based on epa labeling)
-Chatrie (geofence warrants)
-Mullins (immigration -Temp protected status)

Buckle up. That's a crazy finishing stretch, with (by my count) only 5 "boring" cases. And most of the remaining controlling opinions are likely to come from CJR, Alito, and Kavanaugh.

 

[Finance85]

So in anticipation of opinions tomorrow, I took a peek at what's outstanding. It's going to be a really busy and interesting 2-3 weeks, with 19-20 cases outstanding. My guess is they go to July 2, which means slightly more than 6 opinions per week.

Of the 19 outstanding, the highlights include:

-Landor (prisoner dreadlocks haircut case for Rastafarian)
-Slaughter (FTC/appointments clause/unitary exec)
-NRSC (political parties coordinate with pacs on spend)
-Little/BPJ (TG athletes)
-Wolford (HI 2A case involving carry on private property)
-Cook (Fed/appointments clause/unitary exec)
-Pung (Takings)
-Hemai (2A addiction restrictions)
-Watson (mail ballots) [this is the case I really have my eye on]
-Mullins (immigration, asylum, and what side of the border you have to be on)
-Barbara (birthright citizenship)
-Monsanto (Roundup preemption based on epa labeling)
-Chatrie (geofence warrants)
-Mullins (immigration -Temp protected status)

Buckle up. That's a crazy finishing stretch, with (by my count) only 5 "boring" cases. And most of the remaining controlling opinions are likely to come from CJR, Alito, and Kavanaugh.

Do you see any if these stimulating Congress to change any laws, or going further, mentioning a Constitutional Amendment? I know the latter is unlikely, but the birthright citizenship case could spark that given the amount of modern mobility we have. Besides US territories in the PacRim we have hundreds of thousands of pregnant spouses of H1B visa holders visiting the US to produce anchor babies.

I'm particularly interested in Chatrie, especially in light of US v Jones and the proliferation of Flock cameras.

 

[Aardvark86]

Do you see any if these stimulating Congress to change any laws, or going further, mentioning a Constitutional Amendment? I know the latter is unlikely, but the birthright citizenship case could spark that given the amount of modern mobility we have. Besides US territories in the PacRim we have hundreds of thousands of pregnant spouses of H1B visa holders visiting the US to produce anchor babies.

I'm particularly interested in Chatrie, especially in light of US v Jones and the proliferation of Flock cameras.

Chatrie is absolutely a big sleeper in terms of its practical importance.

Like you, I'm practically pretty skeptical on the likelihood of any amendments, even if (and that's a big if) a majority agreed that birth tourism was material and isn't really a good idea.

But I think the two appointments clause cases could be seriously disruptive in ways that extend far beyond whether Lisa Cook keeps her seat or not, and for reasons that are flying a little under the radar. Specifically, I am wondering (from the argument) whether the Court actually wrestles with some much bigger, and very fundamental, questions of what is an exercise of 'executive' power, what is an exercise of 'legislative' power, and what is an exercise of 'judicial' power by an agency. From where I sit, these cases have percolated up there on what is largely a false premise that these officials are exercising 'executive' power rather than 'legislative' power (eg, rulemaking). And if they are exercising legislative power (and thus can't be fired under a unitary executive theory), it reframes the question of whether we're going to breathe life into the nondelegation doctrine again. I know one justice who's explicitly on board with that, and as I've said before, I actually think that legislative resurgence will in the long term be what the Roberts court becomes known for.

The mail ballots case could also open up quite a pandora's box, not only with respect to post-election day receipt, but maybe even (less likely) preelection day voting. I could see that generating some legislative amendments.

 

[Finance85]

Chatrie is absolutely a big sleeper in terms of its practical importance.

Like you, I'm practically pretty skeptical on the likelihood of any amendments, even if (and that's a big if) a majority agreed that birth tourism was material and isn't really a good idea.

But I think the two appointments clause cases could be seriously disruptive in ways that extend far beyond whether Lisa Cook keeps her seat or not, and for reasons that are flying a little under the radar. Specifically, I am wondering (from the argument) whether the Court actually wrestles with some much bigger, and very fundamental, questions of what is an exercise of 'executive' power, what is an exercise of 'legislative' power, and what is an exercise of 'judicial' power by an agency. From where I sit, these cases have percolated up there on what is largely a false premise that these officials are exercising 'executive' power rather than 'legislative' power (eg, rulemaking). And if they are exercising legislative power (and thus can't be fired under a unitary executive theory), it reframes the question of whether we're going to breathe life into the nondelegation doctrine again. I know one justice who's explicitly on board with that, and as I've said before, I actually think that legislative resurgence will in the long term be what the Roberts court becomes known for.

The mail ballots case could also open up quite a pandora's box, not only with respect to post-election day receipt, but maybe even (less likely) preelection day voting. I could see that generating some legislative amendments.

I fully support the trend away from Chevron, and ultimately the delegation of legislative powers to the executive. Once those powers are ceded, they are nearly impossible to get back. I'm also fascinated by the Lisa Cook case, and the pull between conflicting thoughts on how to write legislation that is neither too broad or too focused. I learned about that when drafting a patent, LOL. Bottom line is that Congress has gotten tremendously lazy in drafting legislation based on general concepts and letting the executive figure out the details. This is particularly true with tax and environmental laws and really needs to stop.

I'm also fascinated by the reasoning we'll see with election day. I'm certain the liberals will be fine with the broadest interpretation of voting day. As for me, my position is that states should be in charge of elections with few exceptions, and voting day might be one of those narrow exceptions. I'm not in favor of Trump's even narrower take of only in-person ballots on a single day. That's just moronic.

 

[Aardvark86]

To quote Tony Romo, "here we go!"

First up, Hemani (2A case regarding restrictions onownership by addicts), from Gorsuch. pot smoker can't be prosecuted for having his gun based on prohibition on ownership by addicts; unanimous with concurrences. Justice Alito concurrence: “In these circumstances, marijuana use today is like alcohol use at the founding.”


Next up...Hunter, a "dull" criminal appeals waiver case, 8-1 from Kagan. But also kinda interesting in that it seems like it's decided on sort of an "interests of justice" basis.

And finally, another dull one. TM v U of Md Medical, essentially a civil procedure case about federal-state jurisdiction

We're down to only one or two dull-ish ones left. It's going to be a hell of a couple of weeks. (note - still no roberts-alito-kavanaugh. Soto may well be done for the term for majority opinions.)

Tuesday will be the next opinion day.

 

[Aardvark86]

Order list today; opinions tomorrow.

One grant in a Bivens case (money damages for deprivation of constitutional rights) with a prison injury neglect context. A few criminal non-grants with some dissents.

But in my world, an interesting call for the SG's views on whether to grant cert in PhRMA v O'Day, a 1A and Takings challenge to Oregon's law that compels manufacturers to disclose various product pricing, production, and other commercial and "justification" information in connection with certain price increases. A handful of states have laws like this, and they're generally sort of a nuisance law in that the only bad consequence is nonreporting, and the states don't use the information for any purpose other than public shaming. Oregon though has been particularly aggressive with respect to the granularity of required responses, and also in that they take the position that trade secrets have to be publicly disclosed. I'll definitely be watching at this fall's long conference to see if they take this case up.

 

[fatpiggy]

Order list today; opinions tomorrow.

One grant in a Bivens case (money damages for deprivation of constitutional rights) with a prison injury neglect context. A few criminal non-grants with some dissents.

But in my world, an interesting call for the SG's views on whether to grant cert in PhRMA v O'Day, a 1A and Takings challenge to Oregon's law that compels manufacturers to disclose various product pricing, production, and other commercial and "justification" information in connection with certain price increases. A handful of states have laws like this, and they're generally sort of a nuisance law in that the only bad consequence is nonreporting, and the states don't use the information for any purpose other than public shaming. Oregon though has been particularly aggressive with respect to the granularity of required responses, and also in that they take the position that trade secrets have to be publicly disclosed. I'll definitely be watching at this fall's long conference to see if they take this case up.

Interesting case.


"The district court said Oregon's law failed intermediate scrutiny on the First Amendment claim. In plain terms: the judge agreed that forcing drug companies to write detailed explanations for price hikes is "compelled speech," so the law had to pass a mid-level constitutional test. The state needed to prove the requirement actually advanced its goal, like helping consumers or lowering costs, and that it was a reasonable way to do it.The court found Oregon's law didn't clear that bar — it was too burdensome, the connection to real benefits was too weak, and less intrusive options existed. So the reporting rules were struck down as unconstitutional."

 

[Aardvark86]

Interesting case.


"The district court said Oregon's law failed intermediate scrutiny on the First Amendment claim. In plain terms: the judge agreed that forcing drug companies to write detailed explanations for price hikes is "compelled speech," so the law had to pass a mid-level constitutional test. The state needed to prove the requirement actually advanced its goal, like helping consumers or lowering costs, and that it was a reasonable way to do it.The court found Oregon's law didn't clear that bar — it was too burdensome, the connection to real benefits was too weak, and less intrusive options existed. So the reporting rules were struck down as unconstitutional."

I have worked with several states on these. Pretty much every state except Oregon accepts what you submit, while Oregon always insists on more.

 

[RoseBowlorBust]

SCOTUS is a corrupt shitshow

 

[fatpiggy]

I have worked with several states on these. Pretty much every state except Oregon accepts what you submit, while Oregon always insists on more.

I asked AI about intermediate scrutiny, still not sure i fully understand it ... it sounds like a fine line between reporting and compelled speech.

 

[fatpiggy]

SCOTUS is a corrupt shitshow

We have tried to leave the stupid **** out of this thread, there are 9,999 other threads for that.

 

[Aardvark86]

I asked AI about intermediate scrutiny, still not sure i fully understand it ... it sounds like a fine line between reporting and compelled speech.

Like most constitutional rights, nothing is absolute, and the level of 'scrutiny' is essentially the type of review/basis for regulation that a speech regulation has to satisfy in order to be upheld and permissible. (BTW, a similar construct applies when considering laws with discriminatory classifications, effects on race, sex, etc.)

Strict scrutiny applies when a regulation entails content regulation or viewpoint discrimination. The government's interest in regulation must be "compelling" and the means of regulation have to be the "least restrictive." Mostly national security stuff, but very little survives this. So for example, pro/anti-covid vaccine would be unlikely to meet this.

Intermediate scrutiny is for content neutral regulation, and requires only that the government's interest in regulation be "important" and the manner of regulation be "narrowly tailored". So for example, we can regulate commercial speech in a drug ad so that it is not deceptive.

Here, the lower court essentially held that the law could be upheld in the interest of some sort of 'transparency' even though (my view) consumers cannot affect and probably wouldn't even act on the information required to be disclosed, and as noted in my earlier thread, the state itself doesn't do anything with this in terms of regulation. You're also right that the compulsion issue is probably also something of a 'force multiplier' here. It's one thing for a court to say, for example, if you choose to participate in a state or federal health care program, you have to voluntarily subject yourself to this regulation (and courts say that all the time). But it strikes me as another to say "if you want to sell drugs in Oregon, you have to comply with this", not only because of the higher level of generality but also because of the potential implications that type of regulation might have under commerce clause case law, for a product approved by the feds for sale in interstate commerce.

 

[Aardvark86]

So, as I've said, we're about out of non-sexy cases, so big days ahead, starting this morning. In the immortal words of Bob Diamond, "this is damn exciting stuff"...



Big day, three boxes of opinions -- that could be like 6 cases!

First up...Cisco Systems, from Barrett. falun gong members sue Cisco for aiding and abetting torture in violation of int'l law. Not actionable under alien tort claims statute and subsequent law, 6-3.

Next, Exxon, a Cuban property case. 6-3 from kav (or the guy who was commentating from Shinnecock this weekend). Exxon wins, and can sue cuban companies operating their refineries, as helms burton abrogated their sovereign immunity under FSIA.

Now Landor, from Gorsuch -- the rastafarian prisoner haircut case. 6-3, Jackson writes lead dissent. no claim for $ damages under religious freedom law against guards in personal capacity -- some sort of overlay about spending clause cases that I'll probably want to look more closely at. *Note most were expecting Kav to write this, so that's sort of interesting.

Pung - a takings case where property was sold to cover a tax debt, and and then immediately resold at the higher price. The tax sale price controls. From Alito, more or less unanimously with some concurrences.

And finally, Blanche, from Thomas, 6-3. Perhaps the last 'dull' case. In immigration matters, a green card holder can be denied readmission rather than readmitted temporarily, without clear and convincing evidence of having committed a crime.


the Chief, and probably kav and alito, is going to be a very very busy man announcing opinions Thursday and likely next week.

 

[Aardvark86]

What's left:
-Slaughter and Cook -- appointments clause/unitary executive cases
-NRSC - coordinated campaign spending with parties
-Little/BP - transgender athletes
-Wolford - 2A hawaii
-Watson - election day and mail in ballots
-Mullin - immigration asylum claims and what side of teh border you have to be on
-Barbara - birthright citizenship
-Monsanto - roundup claims
-Chartrie - geofence warrants
-Mullin - TPS immigration

 

[Aardvark86]

So, about that Rastafarian (Mr. Lindor)...

First, let me just be really clear about one thing. I hope to God those prison guards have long since been fired and never work in anything within 100 miles of law enforcement again.

But having looked at the decision, I can sorta now see how they came out the way did, and that 'way' reflects an emerging theme that is going to be important in other contexts. So by way of background, the suit was filed against the state and the guards in their personal capacities under the Religious land use and institutionalized persons act, which is supposed to protect religious rights of prisoners. The act was authorized solely under the spending clause, however, and authorizes lawsuits for money against recipients of federal funds who violate the rights of prisoners. So far, so good.

Here, Mr. Lindor originally sued both the state and the guards, but for reasons that aren't stated (perhaps a settlement), he dropped his claims against the state and went solely against the guards in their personal capacity. Where it gets interesting is that in prior cases, the court has said that for statutes authorized solely under the spending clause, lawsuits for money as a remedy can only be allowed if the defendant has consented to suit (usually, by accepting the money). Here, the guards are not federal grant recipients, the state was, and in the absence of consent they therefore couldn't otherwise be sued for money in their personal capacity.

And that's the broader interesting piece...courts (mostly, to date, lower courts) have been toying around with this theme of 'spending clause laws are different' (and rightfully so given the constitutional history which is relatively clear that it wasn't a carte blanche authorization to regulate beyond the other enumerated powers). In my world, the interesting case I'm watching, relating to drug pricing, is whether state laws are subject to more aggressive preemption if they attach changes that upset the bargain set in a federal spending power program. I suspect they won't, but that's teed' up in the fourth circuit.