The court case at issue regarding TikTok: TikTok, Inc. v. Garland

- Oyez. 

In response to national security concerns about Chinese influence over TikTok, both the Trump and Biden administrations attempted various measures to address these risks, including attempted forced divestiture and transaction bans. After lengthy negotiations over TikTok’s proposed National Security Agreement proved unsuccessful, Congress passed a law in 2024 requiring “foreign adversary controlled applications” (specifically including TikTok) to divest from foreign ownership or face effective shutdown through prohibitions on U.S. companies providing hosting and distribution services. The law takes effect on January 19, 2025, though companies can avoid the prohibitions by completing a qualified divestiture that eliminates foreign adversary control and operational relationships.

Three sets of petitioners (ByteDance/TikTok, Based Politics, and eight individual TikTok creators) filed constitutional challenges to the Act in May 2024, but the U.S. Court of Appeals for the D.C. Circuit concluded that the Act survived constitutional scrutiny.

- Scotusblog.

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.

- Wikipedia. 

TikTok, Inc. v. Garland, was a United States Supreme Court case brought by ByteDance Ltd. and TikTok on the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) based on the Freedom of Speech Clause of the First Amendment, the Bill of Attainder Clause of Article One, Section Nine, and the Due Process Clause and Takings Clause of the Fifth Amendment.

Defense of Marriage Act Overturned by U.S. District Court Judge

Story in the NYT.

Background.

Should Cameras be Placed in the Supreme Court?

Legislation has been introduced in the Senate and House to do so.

Is this a good or bad idea? Proponents argue that it makes the court more transparent, opponents argue that it will lead to grandstanding by the justices and encourage them to play to constituencies outside the court. Hamilton, in Fed #78, wanted the court to stick to the Constitution and the laws. Might cameras compromise this?

We Are All Activists Now

Barry Friedman and Jeffrey Rosen argue that both the left and right have grown accustomed to the use of an activist court to achieve their political aims.

Net Neutrality Rules Struck Down

But an appellate court, so the SC has yet to rule. This limits the jurisdiction of the FCC, so file it under checks and balances.

Possible Impeachment

The House of Representatives considers impeaching a federal judge.

The Courts, Parental Conflict, Religious Freedom and the Media

Rights ain't easy.

Poll Results: Trust in Government Institutions

As I'm putting together notes for a discussion of the legislative branch, I'm faced with a quandary. While commentators dating back to Madison and before talk about the legislative branch as having a special connection to the general population, the contemporary Congress has lower approval ratings than either of the other two branches.

This is according to a recently released Gallup Poll:

At a time when President Obama is asking Congress to develop and pass far-reaching healthcare reform legislation, a record-low 45% of Americans say they have a great deal or fair amount of trust in the legislative branch of government, far fewer than trust the judicial (76%) or executive (61%) branches. Second only to the judicial branch are Americans themselves -- 73% trust "the American people as a whole" to make judgments about the issues facing the country.

It is especially ironic that the judicary is trusted more than the other branches since it is the one appointed for lifetime terms, and the most fully removed from the preferences of the general population. This goes against everything we say in class about the degree to which each institution is tied into the preferences of the general population.

I'm open for explanations.

I do have a cynical take on this however. We don't like Congress because it's closely tied to our immediate preferences. The general population is flighty, superficial and unstable and this is reflected in the behavior our representatives. When we see it in action, we don't like what we see. We prefer the institutions that are removed from our worst tendencies.

But maybe I'm just having a bad day.

The Sotomayor Hearings

Live from the Senate Judiciary Committee.

- Coverage from the NYT.

Judicial Vacancies in Texas

Charles Kuffner updates us on a conflict between the Obama White House and our Texas Senators regarding two federal judicial vacancies in the state:

As we know, there are vacancies in the US Attorney's offices in the Southern and Western district offices in Texas, which will be filled by Presidential appointment. Normally, when the President is of one party and both of a given state's Senators are of the other party, "the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President's party." That's from a report last year by the non-partisan Congressional Research Service. Except that as Steve Benen noted, Texas' Republican Senators have refused to honor this practice, and instead have insisted on sending to Obama candidates who have been screened by the committee he and Hutchison have always used for making nominations -- a committee he admits is "heavily stacked with Republican lawyers." Because, you know, it's different when Democrats are in charge.

Read on ....

On Elected Judges

From the NYT:

In a closely watched case involving the confluence of justice, politics and money, the Supreme Court ruled for the first time that the Constitution can require an elected judge to step aside in a particular case based on campaign spending in state judicial races.

Read Capperton v. Massey.

Revisions, Initiatives, Amendments, and Equal Protection

I'll admit to still being a bit confused about the precise nature of the Proposition 8 dispute in California, and what the nature of the narrow ruling issued yesterday was, but this helps a bit:

The California court ruled last May that same-sex couples enjoyed the same fundamental “right to marry” as opposite-sex couples. That sweeping 4-to-3 decision provoked a backlash from opponents that led to Proposition 8, which, after a bitter campaign fight, garnered 52 percent of the vote in November.

Tuesday’s opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.

Supporters of same-sex marriage, who filed several suits challenging the proposition after its adoption, argued that the change to the state’s Constitution was so fundamental that the initiative was not an amendment at all but instead a “revision,” a term for measures that rework core constitutional principles.

Under California law, revisions cannot be decided through a simple signature drive and a majority vote, as with Proposition 8. Instead, they can be placed on the ballot only with a two-thirds vote by the Legislature.

But the justices said the proposition was an amendment, not a revision. It has been historically rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars had deemed the challenge to Proposition 8 a long shot.

Texas Judicial Resignations

When discussing the Texas Judiciary, we talk about the consequences of the fact that they are elected to their positions: the need for campaign donations, the possibility of justice being "for sale," etc....

I usually only superficially point out that this process is often bypassed when judges resign before an election in order to allow the governor to appoint a replacement who then has the advantage of running as an incumbent. This way the governor can ensure that a judge that shares his or her ideology holds the position.

This might help explain the recent resignations of three Harris county judges: David Bernal, former judge of the civil Harris County 281st District Court; John Wooldridge, ex-judge of the civil Harris County 269th District Court; and Wanda Fowler, who sat on the Houston-based 14th Court of Appeals, which serves 10 counties including Harris.

There is suspicion that they did so in order to avoid losing to a Democrat, if the surge in Democratic voters in Harris County has the impact some predict, but the judges and Harris County Republican Party deny this.

It's interesting to note what these judges have decided to do next in their careers.

All three ex-judges have gone into private law practice at higher salaries.
- Bernal left for Apache Corp
- Fowler joined the law firm Wright, Brown & Close.
- Wooldridge joined Baker Hughes

I imagine that it's nice to be able to hire an ex-judge.

Executive Privilege: An Appellate Court Rules that White House Aides Must Testify Before Congress

From The New York Times:

President Bush’s top advisers cannot ignore subpoenas issued by Congress, a federal judge ruled on Thursday in a case that involves the firings of several United States attorneys but has much wider constitutional implications for all three branches of government.

“The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” Judge John D. Bates ruled in United States District Court here.

Unless overturned on appeal, a former White House counsel, Harriet E. Miers, and the current White House chief of staff, Joshua B. Bolten, would be required to cooperate with the House Judiciary Committee, which has been investigating the controversial dismissal of the federal prosecutors in 2006.

While the ruling is the first in which a court has agreed to enforce a Congressional subpoena against the White House, Judge Bates called his 93-page decision “very limited” and emphasized that he could see the possibility of the dispute being resolved through political negotiations. The White House is almost certain to appeal the ruling.

The decision can be found here. The Judge in question was nominated to the bench by H.W. Bush.

Strict Scrutiny for Sexual Orientation

Not only did the California Supreme Court overturn a ban on same sex unions, it did so by invoking "strict scrutiny" whic means that the law in question is suspected of infringing upon a fundamental right. Slate argues that this is what sets the California ruling apart form the Massachusetts ruling several years ago:

The legal difference between the two opinions lies in the so-called "rational basis" review used by the Massachusetts court and the "strict scrutiny" deployed by the California Court. In constitutional parlance, these terms describe how closely a court will examine state legislation: will it give the legislature the benefit of the doubt, or not? Rational basis review is so lenient that it almost always results in the validation of state policies (in this sense, the 2003 Massachusetts ruling was an aberration), while strict scrutiny is so stringent that it almost always results in the invalidation of such policies. In other words, the standards supposedly only express how closely the court will look at laws, but looks can kill.

Writing for the California high court, Chief Justice Ronald M. George first found that the exclusion of gays from marriage violated their fundamental right to marry, thereby drawing strict scrutiny from the court. This meant that the state would have to produce a compelling reason to bar gays from what the court deemed "the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." In a crucial move, Chief Justice George rejected the state's argument that tradition was such a reason. Allowing tradition to thus entrench itself, he said, would have allowed for laws barring interracial couples. And, as he noted, the California Supreme Court struck down a ban on interracial marriage in 1948, almost two decades before the U.S. Supreme Court did in Loving v. Virginia.

Although he could have decided the case on this basis alone, the Chief Justice kept going. He explicitly found that discrimination against gays, on the basis of their sexual orientation, was equivalent under the California state constitution to discrimination against racial minorities. To my knowledge, California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in). For gays, this pronouncement is critical because it is portable—that is, gays can now challenge any California state policy that discriminates on the basis of sexual orientation. As Marty Lederman points out elsewhere in Slate, this in its own right is a signal advance for gay people.

Opponents will now attempt to overturn the decision with an initive which will change the California Constitution to recognize only heterosexual unions, then there is always the Supreme Court itself. The Washington Post reports that Governor Schwarzenegger is opposign the initiative.

Suprem Court Clerk Cashes In

On its corporate website, Morgan-Lewis--an established Philadelphia law firm with offices world wide, announces that its Houston office has just hired Ted Cruz, an ex Supreme Court clerk who recently served as Texas' Solicitor General.

The announcement specifically states that the company wishes to increase its "Supreme Court and national appellate practice." Hiring Cruz is a great was to do it. After graduating Harvard Law he clerked for both Michael Luttig in the Fourth Circuit and William Rehnquist on the Supreme Court. After working on the Bush-Cheney transition team in 2000 as a legal adviser, and as a deputy attorney in the Justice Department he became Texas' Solicitor General and ran up a solid record as a litigant before the Supreme Court:

He has authored more than 70 U.S. Supreme Court briefs and presented 31 oral arguments, including eight in the U.S. Supreme Court. For four consecutive years, Mr. Cruz won the Best Brief Award from the National Association of Attorneys General (NAAG), for U.S. Supreme Court briefs authored in 2003, 2004, 2005, and 2006. As a litigator, he has amassed a lifetime record in decided cases that he has argued of 23 wins and 4 losses.

Not bad, and not a bad hiring decision for a firm wanting to expand its practice.

What a Liberal Decision Looks Like

I've been trying to be more clear in lectures about what liberal and conservative decisions look like.

One distinction has to do with civil rights. Since liberalism is grounded primarily in the principle of equity, they tend to want to expand civil rights protections. Civil rights of course is based in the United States on the abstract concept of equal treatment before the law--without any hint about what categories might be used to justify unequal treatment and whether public safety and health and the rest might be adversely affected. We discussed proposals to require the elderly to take driving tests probably not violating equal protection because advanced age can impair driving ability.

As a current example in the news, here is a liberal proposal from the U.S. House of Representatives: The Employment Non-Discrimination Act.

Note the conservative argument against it: ". . . Mark Souder, R-Ind., argued that, because of the bill, "religious rights will now be trumped by sexual rights." Calling the bill a disaster for religious bookstores, which could be required to hire gay workers, he said the measure invited litigation and set "precedents that we will regret."

I highlighted what I think is the key part of their argument. The freedom of owners of religious bookstores to hire who they want, based on their traditional understanding proper sexual behavior. This hits both individual economic freedom and traditional values. Both are central to conservatism. It also touches on increased use of the courts--litigation--as a means of redress, which is another sore spot for conservatives.

Nowak Evidence Suppresed

Here's a great example of the importance of procedural limits on the power of government. A Florida judge has thrown out the evidence from the search of Lisa Nowak's car search and her interview with police.

Orange County Circuit Judge Marc L. Lubet said investigators took advantage of the 44-year-old, who had not slept for more than 24 hours before the alleged February airport attack of a purported romantic rival for a fellow astronaut's affections.

Lubet said Orlando police Detective Chris Becton answered evasively when Nowak asked about an attorney, and hadn't read her Miranda rights before he started questioning. "Detective Becton failed to answer defendant's question regarding whether she needed an attorney in a truthful and straightforward manner," Lubet wrote.

"There was a concerted effort to minimize and downplay the significance of the Miranda rights by referring to these constitutional rights as mere 'formalities."'

Lubet said Becton wrongly made "direct and implied promises of benefit," vowing to talk to prosecutors on her behalf if she cooperated. "He made threats and used coercive psychological techniques," Lubet wrote, of Becton's more than six-hour jailhouse interview.

Here is the order from the judge suppressing the evidence. We'll touch on this in my 2302's next week.

In case you forgot, Nowak was the astronaut that drove from Houston to Orlando non-stop in a diaper to confront a woman she thought was competing for the affections of a man she thought might be interested in her. Except it turns out that she wasn't wearing a diaper after all.

Pity.

William Wayne Justice

One of the more influential policy makers in Texas over the past few decades is not an elected representative of the state. He's 87 year old U.S. District Judge William Wayne Justice.

He is back in the news due to his role in settling a lawsuit over children's access to Medicaid.
Justice has already placed his stamp on a variety of policies in Texas, and since he has mandated policies to benefit prisoners and desegregate schools.

Neither made him popular with conservatives who use him as an example of a judicial activist.

This is Why you Dont Want Camera in the Court Room

The world has a new media sensation--as if we needed one--and his name is Larry Seidlin, Judge Larry Seidlin. He's presiding over the hearings underway in Florida that will determine where Anna Nicole Smith will be buried, and he is making the most of it.

Apparently he's using these hearings as an opportunity to audition for his own "Judge Judy" type TV show.

This may be one of the reasons Justice Kennedy argued against cameras in the Supreme Court. Even if they dont turn one into a glazed ham, they will affect the way you act, even subtly.