Summer Reading: the Supreme Court

Fashions are always changing, but one timeless rule is that heavy black robes are not beach attire. Unless, that is, if you are a Supreme Court justice dying to get some vacation after a string of momentous decisions. From regulatory deference to trademark law to social media meddling, the nine jurists on the bench have had plenty to say about some of the most consequential legal issues gripping America. That gives pundits plenty to pontificate about, politicians plenty to complain about, and the American people plenty to read about. Because Supreme Court opinions aren’t always the most riveting reads, the Taxpayers Protection Alliance is pleased to offer an abridged version.

Of all the consequential cases decided during this blockbuster term, Loper Bright Enterprises v. Raimondo (Loper Bright) probably packs the biggest punch for consumers and taxpayers. The Court held that judges cannot simply defer to agency interpretations of the law when statutes are ambiguous; they must “exercise independent judgment in determining the meaning of statutory provisions.” A little background goes a long way toward understanding this landmark administrative law decision. In 1984, the Supreme Court held in Chevron U.S.A., Inc. v. NRDC (Chevron) that federal regulatory agencies should have lots of leeway in interpreting tricky wording in congressional statutes that could have multiple meanings. As conservative legal activist Carrie Severino explains, this posed plenty of problems for the rule of law. She notes, “For decades, judges cited the 1984 case…as an excuse for shifting their responsibility to federal agencies. Specifically, on questions of statutory interpretation, courts would defer to agencies where the statutory text is ‘silent or ambiguous’ as long as that interpretation ‘is based on a permissible construction of the statute.’ That effectively meant putting a two-ton judicial thumb on the scale of government bureaucrats against the little guy.”

Left-leaning activists and legal theorists justified Chevron as giving educated and experienced bureaucrats the space needed to do their jobs. But, this argument “is untethered to reality, which is that agency officials often push their own agendas regardless of whether that would contort the underlying law…the majority recognized that ‘agencies have no special competence in resolving statutory ambiguities.’…Agency officials will now have to do their homework and win on the merits, not on favoritism.” The new standard established in Loper Bright will still give agencies wide discretion in implementing broad swaths of law, but actions must hew to the most reasonable interpretation of the legislative language. And if judges wind up interpreting something more narrowly than members of Congress would like, lawmakers can respond by doing their jobs by writing more precise pieces of legislation.

The Supreme Court’s vision of itself as a referee doesn’t just apply to Congress and agencies. Justices are often asked to resolve disagreements between lower courts, and sometimes, it’s better to remand cases back down to lower courts with some guiding principles and instructions. That’s exactly what happened in the cases NetChoice v. Paxton and Moody v. NetChoice, which dealt with state-level attempts to limit the free speech rights of private social media companies. These vague and unwise state laws tried to end social media platforms’ content moderation standards, which enable providers to build communities and control their services through the exercise of discretion.

TPA policy analyst David McGarry explains how SCOTUS defended the First Amendment: “Writing for her colleagues, Justice Elena Kagan made clear that First Amendment precedent securing the right to editorial discretion does protect social-media platforms’ content-moderation policies. Her incisive reasoning indicated clearly that the statutes in question, which prescribe permissible modes of content moderation, violate platforms’ right to choose what third-party user-generated content to publish and promote and what to remove and hide…The majority opinion savaged the Fifth Circuit’s ruling (which upheld Texas’s law), instead endorsing the 11th Circuit’s far superior approach…Had the Court declined to correct the Fifth Circuit’s errors — or had it endorsed them — it would have done great harm to free speech and property rights in the digital world. Having encountered a chute, the NetChoice cases will continue to climb the judicial ladder.” Federal courts will continue to weigh in on these digital First Amendment issues, but not without some much-needed guidance from the Supreme Court that state governments cannot take away platforms’ free speech rights.

The justices even delved into intellectual property rights this term, taking a long overdue detour into trademark law. The case began with California labor lawyer Steve Elster, who wanted to trademark the phrase “Trump too small” and sell t-shirts and other merchandise with that wording. The Patent and Trademark Office (PTO) refused to grant the trademark, citing the Lanham Act’s prohibition on registering a name of a “particular living individual” without that individual’s consent. Elster argued that the PTO’s decision violated his First Amendment rights, and the trademark tussle went all the way up to the Supreme Court. All nine justices wisely rejected Elster’s argument, holding that the First Amendment does not force the PTO to hand out trademarks. Justice Thomas noted, “A trademark has generally served two functions: ‘indicating ownership of the goods to which it [is] affixed’ and ‘indicating the source or origin of manufacture’…policing trademarks so as to prevent confusion over the source of goods requires looking to the mark’s content.” This necessity not only matters on First Amendment grounds but is also essential for understanding IP rights. Individuals have control and ownership over what they create, and their identity lies at the core of these creative works. Allowing someone exclusive rights to another person’s name without their consent deprives that person of IP rights by boxing them out of their own identity. The Court concluded that, while Elster is absolutely free to sell “Trump too small” merchandise and profit off of it, he cannot monopolize Trump’s name. This fascinating opinion affirms IP rights and sets the stage for future opinions on trademarks, copyrights, and the freedom of expression.

As the justices get in some rest and relaxation, Court observers are already paying close attention to the cases next up on SCOTUS’ list. Later this year, the Court will review the Fifth Circuit’s holding in Wages & White Lion Invs., LLC v. FDA that the FDA has been “arbitrary and capricious” in rejecting vaping companies’ applications to market and sell their products. Get your popcorn and reading glasses ready because TPA will be submitting an amicus brief in this critical case. SCOTUS summer readings will stretch on far past Labor Day.