The U.S. Supreme Court distributed for consideration at Friday’s justices’ conference Robert F. Kennedy Jr.’s Oct. 26 motion to intervene in the SCOTUS review of the injunction barring officials from the White House and four federal agencies from coercing or significantly encouraging social media platforms to moderate their content, said a text-only docket entry Monday (docket 23-411). The injunction is stayed pending the resolution of the SCOTUS review (see 2310230003). SCOTUS previously said it distributed RFK Jr.’s motion to intervene for its Nov. 17 justices’ conference (see 2311010038), but no action apparently was taken then. The government petitioners (see 2311030001) and the Republican attorneys general of Louisiana and Missouri (see 2311070005) all oppose the motion to intervene.
The U.S. Supreme Court scheduled Jan. 17 oral argument in the two cases in which the petitioners are asking SCOTUS to overrule the Chevron doctrine, said a text-only docket entry Friday in both cases. SCOTUS granted the petitioners cert May 1 in Loper Bright Enterprises v. Raimondo (docket 22-451) (see 2305010058). When the court granted cert Oct. 13 to the second group of Chevron petitioners in Relentless v. Commerce Department (docket 22-1219), it ordered the clerk to establish a briefing schedule that would allow the two cases to be argued “in tandem” in the January argument session (see 2310130064). The Relentless petitioners’ opening brief on the merits was due by the close of business Monday, and their reply brief will be due Jan. 5, just 12 days before SCOTUS holds oral argument in the two cases. The government's answering brief in Relentless is due Dec. 15. SCOTUS. in an order list Monday, granted the Relentless petitioners' Nov. 8 motion to dispense with printing the joint appendix in the case (see 2311080076).
Robert F. Kennedy Jr. and his co-plaintiffs in Kennedy v. Biden made likely their last pitch Monday in support of their motion to intervene in the U.S. Supreme Court review of Missouri v. Biden and its social media injunction against officials from the White House and four federal agencies before the justices consider the motion’s fate at their Friday conference (see 2311010038). The facts of the case in Missouri v. Biden establish that the federal government “has specifically and successfully sought to censor” one of the incumbent president’s “leading electoral rivals,” said the Kennedy plaintiffs’ reply brief (docket 23-411) in reference to RFK Jr., who is running for the presidency as an independent.The aim is “to prevent that rival candidate from giving voice in the modern public square to information and ideas” critical of Biden administration policy, it said. “The threat to a fair presidential election is apparent,” it said. The “rival candidate in question,” RFK Jr., “is already a party to these proceedings by consolidation” in the U.S. District Court for Western Louisiana, it said. His First Amendment rights “will be adjudicated” by the Supreme Court, “yet he is not represented here,” it said. “No existing party” to Missouri v. Biden “stands on the same footing” as RFK Jr., it said. He’s “not only a leading presidential candidate but one of the leading targets” of the government’s "censorship campaign," it said. The Kennedy plaintiffs said they submitted their brief in reply to the opposition to the motion to intervene filed Nov. 6 by the Republican attorneys general and their five individual co-plaintiffs in Missouri v. Biden, who argued that the motion is untimely and fails to meet the rare and extraordinary burden that SCOTUS has established for intervention after it has granted cert (see 2311070005). “It bears emphasis,” said the Kennedy plaintiffs’ reply brief, that the government defendants in Missouri v. Biden “have not filed an opposition to the motion to intervene.” But the government did file its opposition to RFK Jr.’s motion Nov. 2 (see 2311030001), and the Missouri respondents cited many of the same arguments as the government did in urging SCOTUS to deny Kennedy as an intervenor in the case.
Relentless, Huntress and Seafreeze Fleet, the second set of U.S. Supreme Court petitioners seeking to overrule Chevron (see 2310130064), seek leave to dispense with the requirement of a joint appendix, said their motion Wednesday (docket 22-1219). The government respondents, including the Commerce Department and Commerce Secretary Gina Raimondo, agree that a joint appendix isn’t necessary, said their motion. The case presents the “purely legal question” whether SCOTUS should overrule Chevron “or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency,” said the motion. The lower court opinions, plus the relevant portions of the underlying statute involved in the case, are reproduced in the appendix to the Relentless cert petition, it said. “The parties agree that no other portion of the record merits special attention that warrants the preparation and expense of a joint appendix,” it said. Preparation of a joint appendix also wouldn’t “materially assist” SCOTUS in its consideration of the case, it said. The Relentless petitioners’ opening brief is due Nov. 20 (see 2310190001).
The U.S. Supreme Court distributed for the justices’ Nov. 17 conference the Oct. 26 motion of Robert F. Kennedy Jr. and his two co-plaintiffs in Kennedy v. Biden to intervene in the SCOTUS review of the injunction imposed in Missouri v. Biden against officials from the White House and four federal agencies (see 2310270001), said a text-only docket entry Wednesday (docket 23-411). Though the respondent plaintiffs in Missouri v. Biden, including the Republican attorneys general of Missouri and Louisiana, plus five individual social media users, “primarily assert their claims as censored speakers,” the plaintiffs in Kennedy v. Biden “assert the First Amendment claims of social media viewers and listeners all over the country,” said their motion to intervene. The Kennedy plaintiffs also seek leave to file a brief in opposition to the government’s effort to defeat the injunction. SCOTUS on Oct. 20 granted the government’s request for a full stay of the injunction pending the resolution of its review (see 2310230003). The injunction, should it take effect, bars officials from the White House, the surgeon general’s office, the FBI, the Centers for Disease Control and Prevention and the Cybersecurity and Infrastructure Security Agency from coercing or significantly encouraging the social media companies to moderate their content. FBI Director Christopher Wray told a Senate oversight hearing Tuesday that his agency was “having some interaction with social media companies, but all of those interactions have changed fundamentally in the wake of the court’s rules” in the injunction handed down July 4 (see 2310310047). The FBI made those changes out of “an abundance of caution, in order to make sure we don’t run afoul of any court ruling,” said Wray. He added that FBI officials have never tried to influence any social media platform decisions over constitutionally protected speech.
Amicus briefs filed on the merits in Loper Bright Enterprises v. Raimondo (docket 22-451) “will be considered in connection” with Relentless v. Department of Commerce (docket 22-1219), said the U.S. Supreme Court Friday in a Relentless text-only docket entry. The petitioners in both cases ask SCOTUS to overrule the Chevron doctrine. When SCOTUS granted the Relentless cert petition Oct. 13, it directed the clerk to establish a briefing schedule that will allow Relentless to be argued “in tandem” with Loper Bright in the January argument session (see 2310130064). The petitioners’ brief on the merits in Relentless is due Nov. 20, and the government’s responding brief is due Dec. 15.
Defendants Google and YouTube submitted as supplemental authority the U.S. Supreme Court’s Oct. 20 order granting the government’s cert petition on the social media injunction entered in Missouri v. Biden and staying the injunction pending disposition of that petition (see 2310210001), said their filing Tuesday (docket 3:23-cv-03880) in U.S. District Court for Northern California in San Francisco. Plaintiff Robert F. Kennedy Jr. seeks a preliminary injunction enjoining Google and YouTube from removing his COVID-19 videos on grounds that they violate YouTube’s medical misinformation policies (see 2310160014). Kennedy cited the Missouri v. Biden injunction in his motion for the injunction against Google and YouTube, plus in his reply in support of that motion, and Google and YouTube submitted the SCOTUS order in support of their opposition to RFK Jr.'s injunction.
The opening brief on the merits is due Nov. 20 at the U.S. Supreme Court from a second group of fishing-company petitioners seeking to overturn the Chevron doctrine, said a text-only docket entry Wednesday (docket 22-1219). The fishing companies object to the Commerce Department's requirement they pay the costs of carrying federal inspectors onboard their vessels. SCOTUS granted the cert petition Oct. 13 from Relentless, Huntress and Seafreeze Fleet (see 2310130064). The Commerce Department’s respondents’ brief on the merits is due Dec. 15, and the petitioners’ reply brief is due Jan. 5, said the docket entry. SCOTUS directed the clerk to establish a briefing schedule that will allow the Relentless case to be argued “in tandem” with Loper Bright Enterprises v. Raimondo (docket 22-451) in the January argument session. The Loper Bright petitioners also ask that Chevron deference be overruled.
The government’s effort to demonstrateChevron’s “ubiquity and importance” only highlights that the U.S. Supreme Court last used Chevron to decide a case in 2016, said petitioners Loper Bright Enterprises in their reply brief Monday (docket 22-451) in support of overruling Chevron. The Supreme Court’s lack of activity on the doctrine “is not for lack of opportunities,” said the reply brief. Yet for nearly a decade, SCOTUS has instead done what Article III and the Administrative Procedure Act command, “and simply interpreted the disputed statute,” it said. The question is less whether SCOTUS should overrule Chevron, “and more whether it should let lower courts and citizens in on the news,” said the reply brief. The reality is that Chevron “has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough,” it said. The government’s pleas to retain this “misguided and reliance-destroying doctrine fall far short of the mark,” it said. The government “stumbles out of the gate,” claiming Chevron “enjoys statutory stare decisis” (to stand by things decided), said the reply brief. “In reality, Chevron’s interpretive methodology has little (if any) precedential force, and the government fails to demonstrate otherwise,” it said. Even if more traditional stare decisis factors were at play, “the case for overruling Chevron would be overwhelming,” it said. The government “barely defends” the doctrine as a constitutional and statutory matter and insists it's “rooted in historical tradition only by distorting history and ignoring what Chevron actually requires,” said the reply brief. “All roads thus lead to the conclusion” that SCOTUS should overrule Chevron, it said. But if nothing else, SCOTUS should clarify “that statutory silence does not trigger Chevron,” it said.
Epic Games seeks a 30-day deadline extension, to Dec. 1, to respond to Apple’s Sept. 28 U.S. Supreme Court cert petition challenging a federal court’s ability to impose injunctive relief for a wide swath of nonparties instead of a single named plaintiff, wrote Cravath’s Yonatan Even in a letter Saturday (docket 23-344) to the SCOTUS clerk. The delay is needed “due to the press of other matters,” said Even. Apple is seeking to set aside the 9th Circuit Court of Appeals’ affirmation of the district court’s injunction barring Apple from enforcing its anti-steering rules against U.S. iOS app developers (see 2310030002).