WHAT WE'RE READING

The morning read for Wednesday, Dec. 7

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at roundup@scotusblog.com.

Here’s the Wednesday morning read:

• The Supreme Court Is Turning Into a Court of First Resort (Jamelle Bouie, The New York Times)
• Judges Aren’t Part of the ‘Legislature’ (David B. Rivkin Jr. & Andrew M. Grossman, The Wall Street Journal)
• Why the Other Eight Justices Must Censure Clarence Thomas (Amanda Frost, Slate)
• The incredibly unsubtle Amy Coney Barrett response that should worry LGBTQ Americans (Chris Geidner, MSNBC)
• Will the Supreme Court Go Narrow or Broad in Ruling on Free Speech vs. Equal Protection? (Philip Rotner, The Bulwark)

ARGUMENT ANALYSIS

Justices probe government’s authority to dismiss False Claims Act lawsuits

The Supreme Court heard oral argument on Tuesday in the case of Dr. Jesse Polansky, a whistleblower who had filed a claim on behalf of the government under the False Claims Act’s qui tam provision. The Department of Justice had initially allowed Polansky to proceed with the lawsuit against a company he accused of causing millions of dollars in false Medicare bills to the government, but after several years of litigation sought to force dismissal of the case. At issue is whether and when the government has authority to force such a dismissal, with the justices on Tuesday appearing to reject Polansky’s argument that the government has no such authority as well as the government’s argument that it maintains an unfettered right to dismiss. Instead, the justices appeared focused on identifying the appropriate standard and procedure, seemingly headed toward setting a low bar for the government to clear.

SCOTUS NEWS

Court drops consent requirement for filing of amicus briefs, makes other tweaks to rules

The Supreme Court on Monday announced changes to its rules, which govern litigation before the court and its operations. Although the changes were largely technical, the new rules, which go into effect on Jan. 1, 2023, do contain some significant substantive changes – most notably, the elimination of the consent requirement for amicus briefs.

Under the court’s existing practice, anyone who wants to file an amicus brief in a case before the court must obtain consent from the litigants on both sides of the dispute. If consent is not granted, the would-be amicus must seek the court’s permission to file. Unlike many other federal courts, the Supreme Court – with rare exceptions – normally grants such requests; perhaps as a result, litigants overwhelmingly provide consent.

ARGUMENT ANALYSIS

Justices dubious about rejecting jurisdiction of appellate courts to review bankruptcy orders

The Supreme Court heard a confusing and wide-ranging discourse yesterday in MOAC Mall Holdings LLC v. Transform Holdco LLC. For the generalist Supreme Court follower, the case is a technical one, involving the authority of a court of appeals to review a bankruptcy order authorizing a bankrupt tenant to sell its interest in a lease. To give a sense of the context, the parties to the case are the landlord at Mall of America, the largest retail shopping center in North America, and Transform Holdco, a shell entity created to purchase most of the operating assets held by Sears before it filed for bankruptcy in 2019.

The purchaser argues that it successfully has acquired the space Sears formerly occupied in the Mall of America. The court granted review of the lower court’s ruling that it had no authority to review that order, but the argument wandered through several different reasons that the purchaser has interposed to persuade the court not to decide the question on which it granted review. Although the justices commented repeatedly that they found the case and the argument confusing, it is easy to summarize the argument from the perspective of a disinterested observer. Substantially all of the discussion involved one of two threads.

CASE PREVIEW

In high-stakes election case, justices will decide validity of “independent state legislature” theory

The Supreme Court will hear oral argument on Wednesday in a case that UCLA law professor Richard Hasen has called the “800-pound gorilla” of election law. The case, Moore v. Harper, is a test of the “independent state legislature” theory – the idea that the Constitution gives state legislatures nearly unfettered authority to regulate federal elections, with little to no interference from state courts. Depending on whether the justices agree with the theory and how broadly they interpret it, it has the potential to upend federal elections by eliminating virtually all oversight of those elections by state courts.