WHAT WE'RE READING

The morning read for Monday, April 29

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Monday morning read:

• Trump immunity fight turns Supreme Court textualists topsy-turvy (Josh Gerstein, Politico) 
• Supreme Court rejects Elon Musk over agreement with SEC to vet social media posts (Lawrence Hurley, NBC News)
• Trucker failed drug test after taking CBD supplement. Supreme Court to decide if he can sue (Maureen Groppe, USA Today)
• Amid Cases on Abortion and Trump, Roberts Reflects on Supreme Court’s Work (Adam Liptak, The New York Times)
• Peter Navarro’s get-out-of-jail request is again rejected by the Supreme Court (John Fritze, CNN)

RELIST WATCH

RICO injury, federal jurisdiction, and giving veterans the benefit of the doubt

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 is back in the relist business with a vengeance. On Monday, it granted review of the Biden administration’s newly relisted petition seeking to establish the lawfulness of its efforts to regulate so-called “ghost guns,” as well as the Commonwealth of Virginia’s first-time relist arguing that a plaintiff who won a preliminary injunction enjoining a state law (but who did not secure a final judgment) may nonetheless be considered a “prevailing party” entitled to attorney’s fees.

The court will be considering 123 petitions and applications at this week’s conference. There are four newly relisted cases among that group that represent the likeliest candidates for the court’s review. One of those four involves an issue on which the court already is considering 11 other relisted cases: whether the Sixth and 14th Amendments require the use of a 12-person jury to try defendants accused of felonies, rather than the six-person jury Florida affords for many such offenses.

First up is what I think is the likeliest grant: Medical Marijuana, Inc. v. Horn. Douglas J. Horn lost his job as a commercial truck driver after a drug test he took reflected the presence of tetrahydrocannabinol (“THC”), the active chemical compound in marijuana. Horn maintained that he ingested THC unwittingly by consuming a cannabis-derived product that Medical Marijuana, Inc. marketed as THC-free.

WHAT WE'RE READING

The morning read for Friday, April 26

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

• Supreme Court seems skeptical of Trump’s claim of absolute immunity but decision’s timing is unclear (Mark Sherman, The Associated Press)
• US Supreme Court justices in Trump case lean toward some level of immunity (John Kruzel & Andrew Chung, Reuters)
• Supreme Court seems poised to allow Trump Jan. 6 trial, but not immediately (Ann E. Marimow, The Washington Post)
• John Roberts isn’t happy with previous ruling against Trump – what happens now? (Joan Biskupic, CNN)
• Trump’s immunity arguments and the experiences of the justices who might support it (Nina Totenberg, NPR)

WHAT WE'RE READING

The morning read for Thursday, April 25

Today is the last day of scheduled oral arguments for the 2023-24 term. At 10 a.m. EDT, the justices will hear oral argument in Trump v. United States. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

• Supreme Court tackles Trump’s broad claim of presidential immunity in election interference case (Lawrence Hurley & Ryan J. Reilly, NBC News)
• What to listen for during Supreme Court arguments on Donald Trump and presidential immunity (Eric Tucker, The Associated Press)
• In Immunity Case, Trump Can Lose in Ways That Amount to a Win (Adam Liptak, The New York Times)
• Two big court dates for Donald Trump, but he can attend only one (Kyle Cheney & Josh Gerstein, Politico)
• Justice Alito Voices Support for Fetal Rights in Federal Law (Lydia Wheeler, Bloomberg Law)

ARGUMENT ANALYSIS

Justices appear likely to side with Starbucks in union organizing dispute

The oral argument Tuesday in Starbucks Corp. v. McKinney was surprisingly one-sided, as the justices seem to have come to the bench settled on the view that the lower court’s ruling could not stand. The basic issue in the case is what the National Labor Relations Board has to prove to get a preliminary injunction against an employer (in this case, Starbucks) while it conducts administrative proceedings to determine if the employer committed an unfair labor practice.

It became pretty clear early in the argument that the justices were not satisfied with the NLRB-preferred standard, applied by the lower courts. Under that standard, all that the NLRB has to prove about the merits of its case is that it has a legal theory that is “not frivolous” and “some evidence to support it.” That is much more lenient than the four-factor standard courts use for non-labor injunctions, which would require the NLRB to establish a “likelihood of success” on the merits (in addition to consideration of irreparable injury, the balance of equities, and the public interest). Early in Lisa Blatt’s argument for Starbucks, Justice Sonia Sotomayor commented, “I do understand why that needs to be corrected because you’re right, it’s the court that has to decide the likelihood of [success] on the merits.” Nor was she alone; with the lone exception of Justice Ketanji Brown Jackson, not a justice said a word to support the NLRB’s standard on that part of the case.