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.

Advocates in Conversation

Richard Bernstein on the impact of Jan. 6 at the court

In this video, Nate Mowry interviews attorney Richard Bernstein. Bernstein filed “friend of the court” briefs on the behalf of current and former government officials in Fischer v. United States and Trump v. United States. He speaks on the impact of the Jan. 6, 2021, attacks on the U.S. Capitol on the legal system and the country at large.

WHAT WE'RE READING

The morning read for Wednesday, April 24

At 10 a.m. EDT, the justices will hear oral argument in Moyle v. U.S. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:

• US Supreme Court leans toward Starbucks in the case of pro-union workers (Andrew Chung & John Kruzel, Reuters)
• Supreme Court likely to side with Starbucks, curtail labor board authority (Lauren Kaori Gurley, The Washington Post)
• What’s at stake as the Supreme Court hears Idaho case about abortion in emergencies (Selena Simmons-Duffin, NPR)
• What to know in the Supreme Court case about immunity for former President Trump (Mark Sherman, The Associated Press)
• Supreme Court rejects challenge to vote-by-mail restrictions in Texas (Maureen Groppe, USA Today)

ARGUMENT ANALYSIS

Justices dubious about dismissing suits while waiting for arbitration

Monday’s argument in Smith v. Spizziri was this month’s case under the Federal Arbitration Act. This one explores what a trial court can do when it refers a pending suit to arbitration. Section 3 of the FAA says that if the court refers the case to arbitration, it “shall on application of one of the parties stay the trial of the action until such arbitration has been had.” The question is whether the trial court, instead of staying the action, can go ahead and dismiss it entirely.

The argument included a fair amount of questioning about the text. For example, early in Daniel Geyser’s argument (arguing for a stay rather than dismissal), Justice Ketanji Brown Jackson pointed out that the statute says “stay the ‘trial,’” and commented that “you would have an easier case if it said stay the ‘proceeding’ or stay the ‘action.’ … You want us to interpret it to be ‘proceeding’ or ‘action,’ but that’s not exactly what it says.”

On the other hand, Justice Sonia Sotomayor pressed Joshua Rosenkranz (arguing for dismissal as an alternative to a stay) forcefully on her reading of the text.