WHAT WE'RE READING

The morning read for Friday, May 31

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 rules official likely violated NRA’s free speech rights (Justin Jouvenal, The Washington Post)
• Supreme Court gives New Yorkers second shot in escrow interest-payment fight (Kelsey Reichmann, Courthouse News Service)
• Chief Justice John Roberts declines to meet with Democrats about ethics concerns amid Alito flag flap (Lawrence Hurley, NBC News)
• Supreme Court OT2023 at the End of May (Jonathan Adler, The Volokh Conspiracy) 
• How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases (Jamie Raskin, The New York Times)

Coming up: On Thursday, June 6, the court expects to issue one or more opinions from the current term. We’ll be live at 9:45 a.m. EDT.

WHAT WE'RE READING

The morning read for Thursday, May 30

We expect one or more opinions from the court this morning. Join us for live coverage at 9:45 a.m. EDT. 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:

• Alito tells lawmakers he will not recuse from Supreme Court cases despite flag controversy (John Fritze, CNN)
• To recuse or refuse? A look at Supreme Court justices’ decisions on whether to step aside in cases (Mark Sherman, The Associated Press)
• Why Recusal is (Usually) a Distraction (Steve Vladeck, One First)
• San Francisco Is Handing the Right-Wing Supreme Court a Gift (Matt Ford, The New Republic)
• The Supreme Court Could Make the President a King (Kimberly Wehle, Politico)

SCOTUS NEWS

Alito rejects calls to recuse from Trump, Jan. 6 cases in light of flag controversies

This article was updated on May 30 at 4:20 p.m. to include information on Chief Justice John Roberts’s statement.

Two weeks after the New York Times first reported that an upside-down American flag – popular among the “Stop the Steal” movement – flew outside the Virginia home of Justice Samuel Alito in the days following the Jan. 6, 2021, attacks on the U.S. Capitol, Alito rebuffed requests from Democratic lawmakers to recuse himself from cases involving immunity for former President Donald Trump for his role in the Jan. 6 attacks and the scope of a federal criminal law under which Trump and other Jan. 6 defendants have been charged. Telling the lawmakers that both the upside-down U.S. flag at his Virginia home and a flag, flown at his New Jersey beach home, associated with the “Stop the Steal” movement and Christian nationalism were flown by his wife, who refused to take the U.S. flag down even when he asked her to do so, Alito disclaimed any involvement with the decision to fly either flag.

Calling his wife an “independently minded private citizen” who “makes her own decisions,” Alito contended that a “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude” that he was not required to recuse himself from the Trump immunity or Jan. 6 cases. Therefore, he continued, he was obligated under the Supreme Court’s code of conduct to reject the lawmakers’ request.

WHAT WE'RE READING

The morning read for Wednesday, May 29

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 rejects challenges to Florida’s use of 6-member juries (Jim Saunders, News Service of Florida & Tampa Bay Times)
• US Supreme Court’s Gorsuch urges states to require 12-person juries (Nate Raymond, Reuters)
• Strange bedfellows align in latest Supreme Court water case (Pamela King & Miranda Willson, E&E News)
• MD lawyers seek to use landmark Supreme Court gun ruling to overturn firearms convictions (Rachel Konieczny, The Daily Record)
• Samuel Alito’s ethical lapse isn’t the Supreme Court’s first. This is why it’s different (Robin Abcarian, Los Angeles Times)

Coming up: On Thursday, May 30, the court expects to issue one or more opinions from the current term. We’ll be live at 9:45 a.m. EDT.

OPINION ANALYSIS

Courts rather than arbitrators to decide whether Dogecoin dispute goes to arbitration

Thursday’s opinion in Coinbase v. Suski was brief and matter of fact, skirting lots of ancillary disputes so that the court could dispose of the case by a straightforward reaffirmance of the principle that parties are bound to arbitrate all the disputes, but only the disputes, that they agreed to arbitrate.

The case presents a dispute about a Dogecoin sweepstakes on Coinbase, with the parties relying on two inconsistent documents – Coinbase’s user agreement (which broadly calls for arbitration) and the sweepstakes rules Coinbase distributed (which don’t mention arbitration). The unanimous opinion by Justice Ketanji Brown Jackson turns back to basic contract principles to find a solution. Jackson uses a framework of “multiple levels of agreements concerning arbitration.” The first and most “basic level” is that “the parties can agree to send the merits of a dispute to an arbitrator.” That, in her words, could produce a “first-order disagreement,” a “contest over the merits of the dispute.” A “second-order dispute” would be about “whether they agreed to arbitrate the merits.” A “third-order dispute,” in turn, is a disagreement about “who should have the primary power to decide the second matter.”