If you really want to understand the conservative-dominated Supreme Court, it’s important to realize that all the Republican nominees who sit on it formed their legal philosophy and forged their legal reputations long before Donald Trump was elected president. This is no less true of Trump’s three nominees than of the three justices who were nominated by previous Republican presidents. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all possessed a robust legal identity and a considerable body of work before their selection to the high court. In fact, each has his or her own maverick streak, with Gorsuch perhaps most notable in his steadfast defense of Native Americans and the rights of criminal defendants.
When you understand this reality, what can seem to be a confounding, surprising Supreme Court term is actually predictable. The Trumpist right is lobbing a number of novel cases presenting aggressive legal theories to justices with pre-Trump legal philosophies, and the pre-Trump justices are rejecting them, repeatedly.
Wednesday morning, the court decided Murthy v. Missouri, and it fit this pattern perfectly. Barrett, writing for a six-justice majority that included Kavanaugh and his fellow Republican-nominated Chief Justice John Roberts and the Democratic nominees Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, rejected right-wing plaintiffs’ efforts to sharply restrict government communication with private social media platforms.
The case centers on one of MAGA’s most urgent concerns: blocking social media moderation of right-wing speech. Some of these concerns are legitimate. I’ve long been worried that social media moderation is both too broad and too vague.
But one reason so many MAGA voices faced problems with social media moderation was that they systematically violated the platforms’ terms of service. At their worst, MAGA voices flooded social media with outright lies and disinformation about the 2020 election and the safety and efficacy of the Covid vaccines. Now MAGA seeks both to force private companies to host their speech and to silence federal efforts to combat dangerous lies.
Murthy involves the latter effort. The case was brought by two states and five private individuals who claimed that the federal government, including the surgeon general, Vivek Murthy, engaged in a coercive, unconstitutional effort to suppress and silence posts that contained what it alleged was misinformation or disinformation. The plaintiffs argued that this government pressure meant that the private content moderation was, in essence, government censorship — that the social media companies were bending to government threats and demands rather than exercising their own judgment.
Again, there are legitimate concerns about government coercion of private speech. On May 30, the Supreme Court unanimously ruled in favor of the National Rifle Association, holding that New York officials may have violated the Constitution by attempting to coerce third parties not to do business with the N.R.A. The core holding was simple and constitutionally correct: The government violates free speech rights when it engages in conduct “that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech.”
The road map for the plaintiffs in the Murthy case was clear. If they could prove that government threats caused the social media companies to censor their posts, then they’d have a viable First Amendment claim.
The case was initially heard in a Federal District Court in Louisiana, and the judge, Terry Doughty, wrote a lengthy opinion declaring that the plaintiffs “presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign.” It then enjoined a host of federal entities and officials from engaging in any action “for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech posted on social media platforms.”
The decision was issued on July 4, 2023. It swept through right-wing social media and was hailed as definitive proof of collusion between the federal government and social media companies to censor conservative speech.
But there was a problem. As Barrett noted in a footnote to the majority opinion in Murthy, many of the district court’s findings were “clearly erroneous.” There is no doubt that social media platforms did take down content, and it was clear that government officials often asked them to take down content, but the reality was far more complex and less nefarious than the district court implied.
For one thing, the platforms had started taking down the plaintiffs’ Covid-related content before any communication with the government. “In fact,” as Barrett wrote, “the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the government defendants got involved.” While government officials did flag social media posts and request that platforms take action, the platforms often refused to comply.
That’s not to excuse all of the government’s communications — as Justice Samuel Alito recounts in his dissent, government officials “persistently hectored” Facebook, including by accusing it of “killing people” — but Barrett’s opinion notes that the plaintiffs “fail, by and large, to link their past social media restrictions to the defendants’ communications with the platforms.” Even the plaintiff with the strongest case for government interference, Jill Hines, a Louisiana health care activist, could establish only “tenuous” links between government action and a private response.
This meant that the plaintiffs did not have legal standing to sue. “Standing” is the name for the legal doctrine that permits a person to sustain a claim in court. Traditionally, to establish standing, a plaintiff must be able to show a “concrete and particularized” injury that is traceable to the defendant. Without being able to establish a past injury, the plaintiffs were unable to demonstrate to the court that they had sufficient fears of future government action to entitle them to an injunction.
All of this is quite straightforward and conventional legal analysis, but to escape it, the plaintiffs advanced a novel legal theory: that they enjoyed a “right to listen” to the content of other people on social media platforms. But Barrett made short work of this idea, calling it “startlingly broad” and noting that it “would grant all social media users the right to sue over someone else’s censorship — at least so long as they claim an interest in that person’s speech. This court has ‘never accepted such a boundless theory of standing.’”
Dismissing a case on standing grounds is no minor technical or procedural matter. A robust standing doctrine keeps the court in its constitutional bounds and prevents it from being a sounding board for complaints about American government. As Barrett wrote, “Federal courts can only review statutes and executive actions when necessary ‘to redress or prevent actual or imminently threatened injury to persons caused by … official violation of law.’”
Alito wrote a strong dissent, which Gorsuch and Clarence Thomas joined. “For months in 2021 and 2022,” Alito wrote, “a coterie of officials at the highest levels of the federal government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain Covid-19-related speech.”
The dissent is worth reading, especially because Alito does highlight government conduct that troubles me. But — as Barrett noted — even the plaintiff who possessed the strongest argument was being targeted by Facebook before the government got involved. This “weakens the inference that her subsequent restrictions are likely traceable to ‘government-coerced enforcement’ of Facebook’s policies, rather than to Facebook’s independent judgment.”
I’m spending so much time discussing this case because it’s directly relevant to online speech, but also because it’s emblematic of the way this traditionally conservative court has rejected the new right’s attempts to use the conservatism of the court to accomplish a series of Republican policy objectives.
Consider a few recent examples:
In 2023, the Supreme Court rejected the efforts of Republicans in Alabama to gut Section 2 of the Voting Rights act and rejected a gerrymander that would have left Alabama with only one majority-minority district.
Also in 2023, the court rejected MAGA’s so-called independent state legislature theory that was a fundamental element of Trump’s effort to steal the 2020 election, and in 2022 the court rejected the State of Texas’ effort to block the Biden administration’s repeal of Trump-era immigration policies.
This term so far, we’ve seen a unanimous court reject an effort to expand standing doctrine to restrict access to mifepristone, a drug that induces abortion. An eight-justice majority rejected arguments that the Second Amendment protects the right of a person under a domestic violence restraining order to possess a gun. A seven-justice majority rejected a claim that the Consumer Financial Protection Bureau’s funding mechanism is unconstitutional.
Obviously, the court is still conservative. It decided Dobbs and Bruen, after all, but even those cases are indicative of the same pattern — conservative originalists and textualists have been contesting Roe and progressive interpretations of the Second Amendment for decades. There is nothing new or radical about arguments against Roe.
The same analysis holds for the court’s First Amendment jurisprudence. Classical conservative jurisprudence robustly protects individual liberty, and so it’s no surprise that free speech and free exercise cases tend to do well at the Supreme Court, often with a strong assist from the court’s liberal wing. There’s a high degree of overlap between traditional conservative and liberal views of free speech and free exercise.
The end result is that the current court is inevitably going to take heavy fire from both the left and the right. Dobbs alone alienated millions of more progressive Americans, but the conservative court’s consistent rejection of the new right’s expansive, aggressive use of government power is also starting to alienate MAGA. There was a reason, for example, that Gov. Ron DeSantis of Florida claimed on the campaign trail he could “do better” than nominating Gorsuch, Kavanaugh or Barrett.
A second Trump term is quite likely to feature very different judicial nominees — yanking MAGA lawyers from the private sector to populate the federal bench. Much of the traditional conservative legal establishment should expect to be frozen out of a new Trump presidency. After all, when Trump believed he needed it the most, it failed him, by opposing and ultimately defeating his efforts to overturn the results of the 2020 election.
We live in an age of easy outrage and hyperpolarization, which leads us to make broad, sweeping condemnations of individuals and institutions that we perceive as on the other side. The Supreme Court is no exception to this trend. And while I will never claim the court or its members are perfect (there is a real need for ethics reform, for example), it is far more nuanced and thoughtful and far less partisan than its worst critics believe.
Some other things I did
After my week off, I jumped right back into the fray. First, I wrote about Louisiana’s decision to mandate the display of the Ten Commandments in public school classrooms. As readers of this newsletter should know, I’m a big fan of religious liberty. I strongly dislike religious establishment and reject the idea that the Ten Commandments will change students’ lives:
I’m an evangelical Christian who believes in God and the divine inspiration of Scripture, but I do not believe that documents radiate powers of personal virtue. I happened to grow up in Kentucky and went to classes before the Ten Commandments were ordered removed, and I can testify that the displays had no impact on our lives. My classmates and I were not better people because of the faded posters on the walls.
My Sunday column was about originalism and the Second Amendment. Justice Roberts and Justice Thomas are at a fork in the road:
Two years ago, when the Supreme Court decided New York State Rifle and Pistol Association Inc. v. Bruen, it created a jurisprudential mess that scrambled American gun laws. On Friday not only did the cleanup begin, but the Supreme Court also cleared the way for one of the most promising legal innovations for preventing gun violence: red flag laws.
And finally, I participated in a conversation with my Opinion colleagues Patrick Healy, Michelle Goldberg, Bret Stephens and Ross Douthat about the pros and cons of a number of potential Trump vice-presidential nominees.
Here was my assessment of the picks who would pose the greatest threat to Biden:
I think the answer is two people we’ve barely mentioned — either Tim Scott or Nikki Haley — would be more helpful to Trump. A Scott selection could continue the ongoing racial realignment in American politics, sending a signal to Black men in particular that they have a home in the Republican Party. A Haley selection has the potential of clawing back at least some of the traditional Republican voters who’ve migrated to the Democratic Party (plus, it would outrage and demoralize quite a few anti-Trump conservatives, something Trump loves to do).
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