SCOTUS’s October Preview | Advisory Opinions

Sarah and David are off this week – David is on what Sarah calls a “fancy” vacation, Sarah herself is in “moving hell” – so David Lat is taking the wheel, joined by SCOTUSblog Executive Editor Zach Shemtob and SCOTUSblog co-founder Amy Howe. They open with Sarah’s rebuttal to the mailbag revolt from last episode over her reading of the Constitution’s House-size math, then work through Justice Samuel Alito’s not-retirement interview, President Donald Trump’s second run at birthright citizenship, and round two of the fight to fire Federal Reserve Governor Lisa Cook.

From there it's a preview of the court’s October sitting – a climate-change tort suit against oil companies, whether criminal aliens detained for a certain amount of time are constitutionally entitled to a bond hearing, and a Video Privacy Protection Act case traceable to Robert Bork’s (rather boring) video-rental history – before closing with the White House ballroom litigation and a circuit court ruling on Florida's drag-show but not-drag-show law.

Agenda

[1:43] Sarah Isgur’s rebuttal
[5:30] Alito’s back! (He never left)
[11:53] Ending birth tourism
[26:36] Overcooking the Federal Reserve firing
[37:41] Suncor Energy Inc. v. County Commissioners of Boulder County
[46:21] Previewing SCOTUS’s October term
[58:21] Circuit court cases

Episode Takeaways

The House-size mailbag, closed out: Sarah’s read from last episode – that the Constitution caps representatives at one per 30,000 – drew a wave of reader pushback arguing the modern ratio (about 0.04 per 30,000) doesn’t come close to “exceeding” that cap. Sarah's rebuttal: the framers actually set 40,000 before George Washington personally intervened to lower it to 30,000, and Congress used that divisor as the actual basis for apportionment for more than a century. Zach agreed with Sarah’s read.
Alito isn’t retiring – but he’s not ruling anything out either: In a Wall Street Journal interview with James Taranto, Alito said “Obviously I’m here for another term,” and swatted down retirement chatter as a “reminder of mortality” (what are those vultures doing up there?). Amy noted that serving out the term doesn’t foreclose a Breyer-style move – announce retirement, then stay through the end of the term – if Democrats flip the Senate in November, and she discussed with David Lat whether Alito cares enough about optics to time it that way.
Birthright citizenship, sequel: Trump signed two executive orders built on Trump v. Barbara. One targets “birth tourism”; the other denies citizenship to children of designated “alien enemies,” foreign government employees, and parents who use commercial surrogacy or fraud to secure citizenship. Zach and Amy called the order’s reliance on Barbara’s “extraterritorial fiction” language a thin reading that conflicts with existing law, and Amy – citing Steve Vladeck – flagged that the order’s narrow, fact-specific categories will make it genuinely hard for challengers to find the right plaintiffs, even though litigation, and a trip to the emergency docket, both look inevitable. Zach then went through the different provisions of Trump’s order and which of these likely conflict with the Constitution – and which don’t.
Lisa Cook, round two: Following Trump v. Cook’s requirement of “notice and an opportunity to respond” before removing a Fed governor, the White House gave Cook 21 days to answer the 2021 mortgage-fraud allegations. Amy doesn’t expect Cook’s response to satisfy the administration, which would set up a second fight over what “for cause” removal requires – and how independent the Fed actually is. David Lat and Zach disagree on whether there is a principled legal distinction that the Fed is unique from other independent agencies.
October sitting preview: Amy walked through three arguments to watch. Suncor Energy v. Boulder County tests whether state-law climate-change tort claims against energy companies survive federal preemption – a case that drew a whopping 72 amicus briefs and involves structural-preemption arguments that Zach found to be “hand-wavy.” Genalo v. Black asks whether prolonged immigration detention under Jennings v. Rodriguez triggers a constitutional right to a bond hearing – an issue affecting a share of the roughly 65,000 people currently in ICE detention. And Salazar v. Paramount Global, a Video Privacy Protection Act case over ad-targeting from viewing history, traces back to a law passed after a reporter obtained Robert Bork’s video-rental list (verdict on his taste, per Zach: heavy on Cary Grant and Hitchcock, and somehow no R-rated titles).
Circuit court cases: Sitting en banc, the 11th Circuit split 8-5 along party lines to reject a First Amendment vagueness challenge brought by the wonderfully named Hamburger Mary’s restaurant against Florida’s Protection of Children Act. Zach and David Lat both think the law survives if it reaches the Supreme Court. Then there’s the White House ballroom ruling – the DC Circuit Court upheld the injunction to halt the construction but put its order on hold and gave the Trump administration 14 days to go to SCOTUS. Zach found the whole thing “painfully uninteresting.”

Show Notes

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