WHAT WE'RE READING

The morning read for Thursday, Jan. 23

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

• Supreme Court leans toward reviving excessive claim against cop who killed a Black man in a traffic stop (Lawrence Hurley, NBC News)
• Supreme Court Seems Ready to Reject Limit on Excessive-Force Suits (Adam Liptak, The New York Times)
• Crisis pregnancy centers ask Supreme Court to revive suit against New Jersey (Brendan Pierson, Reuters)
• How the modern Supreme Court might view the 14th Amendment and birthright citizenship (Joan Biskupic, CNN)
• Trump’s Death Penalty Order Is a Message to the Supreme Court (Barbara L McQuade, Bloomberg)

WHAT WE'RE READING

The morning read for Wednesday, Jan. 22

The justices will hear oral arguments in Barnes v. Felix and Cunningham v. Cornell University this morning. Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Wednesday morning read:

• Cop kills driver in routine stop. Supreme Court weighs whether it’s justified. (Maureen Groppe, USA Today)
• US Supreme Court weighs police conduct in fatal Houston shooting (Andrew Chung, Reuters)
• Cornell Case May Be Bellwether For ERISA Transaction Claims (Kellie Mejdrich, Law360)
• Supreme Court Questions Prosecutors’ Focus on Sex in Capital Case (Adam Liptak, The New York Times)
• The Online Porn Free-for-All Is Coming to an End (Marc Novicoff, The Atlantic) 

WHAT WE'RE READING

The morning read for Tuesday, Jan. 21

The Supreme Court is meeting for oral arguments this morning in Food and Drug Administration v. R.J. Reynolds Vapor Co. and McLaughlin Chiropractic Associates v. McKesson Corporation. Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Tuesday morning read:

• ‘Split-second decision’: Supreme Court returns to the question of police killings (Lawrence Hurley, NBC News)
• Supreme Court ducks copyright battle between GOP firebrand and `Success Kid’ family (Maureen Groppe, USA Today)
• Supreme Court revives case of death row inmate who says she was ‘sex-shamed’ at trial (John Fritze & Devan Cole, CNN)
• US Supreme Court turns away Pennsylvania mail-in ballot dispute (Andrew Chung, Reuters)
• Conservative Fifth Circuit Is an Outlier for Supreme Court (Kimberly Strawbridge Robinson, Bloomberg Law)

CASE PREVIEW

Menthol vapes and forum shopping, FDA tobacco control comes before justices

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.

OPINION ANALYSIS

Supreme Court upholds TikTok ban

This article was updated on Jan. 17 at 12:45 p.m.

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.