There are a lot of cases on the U.S. Supreme Court’s docket already for the term beginning on Monday, but the truth is that we really have no idea yet what this term is going to be about.

The presidential and congressional elections, less than a month away, will not only affect the positions the government takes in cases — and, potentially, lead to more cases — but they will also affect the way the justices react to those cases.

I’ve been writing about how Chief Justice John Roberts has set this term up as a contingent term — with differing paths available depending on the election outcome — and how lower courts and far-right advocates have gotten the message.

But now, as the election approaches, the path will soon be chosen.

The court has always followed the election returns, as Mr. Dooley said, but this is different. This election involves an extremely politicized court controlled by a conservative supermajority observing an extremely polarized election in which the Republican Party’s candidate brazenly lies, supports authoritarian plans, and faces multiple criminal prosecutions that will almost surely move forward if he loses.

When the cult of personality surrounding Donald Trump is added into the mix — including the aggressive and similarly-unconcerned-with-facts support from Elon Musk, the world’s richest man and owner of Twitter/X Corp. — this is, and I know I’m not the first to this conclusion, a pivotal and potentially dangerous moment.

It is difficult to write about what this Supreme Court term will mean when the nation could be going in such different directions.

But, that is, in part, what I will be doing here at Law Dork in the coming month — and after.

Among the arguments that I will be covering this coming week are Tuesday’s arguments in Garland v. VanDerStock over whether the Biden administration’s ghost gun rule is legal and Wednesday’s arguments in Glossip v. Oklahoma over whether a state must execute a man when even state’s conservative Republican attorney general — who has vigorously defended other death sentences — confesses error in the case.

Other cases, over the First Amendment and the internet and gender-affirming medical care for minors are pending, but have not yet been scheduled for arguments. There are also many cases that could be follow-up cases either to last term’s decision overruling Chevron deference for agency actions or the SEC v. Jarkesy decision — both cases about how much power Congress can give to the executive branch and, in turn, how much power the Supreme Court will keep for itself.

Throughout it all, questions about the Supreme Court itself also remain. Ongoing questions about the court’s motivations and ethics — ultimately, questions about its legitimacy — will further shade discussions of the cases and how Roberts and the other justices respond to this contingent moment.

In short, the coming months are going to be a lot, but I will continue doing what I’ve always done — reporting on what’s happening and telling you what I think it means, based on my 20-plus years of covering the court and our legal and political systems.

The warning of the noncompete rule challenges

Law Dork has previously covered challenges to the Federal Trade Commission’s rule banning most noncompete restrictions, which was supposed to go into effect on September 4 but has been blocked nationwide by a federal district judge in Texas who was appointed to the court by Donald Trump.

However, the recent action in challenges to the rule did not come in that case. Instead, the news has come in two more narrow cases — one involving a tree services company north of Philadelphia and the other involving a Florida real estate broker.

After a district court judge blocked the rule solely as applied to the broker, the Justice Department filed its notice of appeal in the Florida case on September 24, a move that takes the rule to the U.S. Court of Appeals for the Eleventh Circuit.

Notably, the Justice Department is yet to file any similar notice in the Texas case, where U.S. District Judge Ada Brown’s nationwide order would be heard by the extremely conservative U.S. Court of Appeals for the Fifth Circuit.

In the tree services company case, things got much more complicated. After the district court denied the company’s request for a preliminary injunction, the company — ATS Tree Services, Inc. — asked for the lawsuit to be put on hold because the court in Texas had blocked the rule nationwide.

The lawyers from the Pacific Legal Foundation argued to U.S. District Judge Kelley Hodge:

Plaintiff ATS Tree Services, LLC (“ATS”) requests that the Court temporarily stay this case because the relief ATS is seeking—vacatur of the Federal Trade Commission’s Non-Compete Clause Rule, 89 Fed. Reg. 38,342 (May 7, 2024) (the “Final Rule”)—has already been ordered by the U.S. District Court for the Northern District of Texas. Because there is nothing to litigate at this time, a temporary stay would promote judicial economy without causing harm to any party.

Unsurprisingly, Hodge, a Biden appointee, did not respond well to this.

In an October 3 order, Hodge denied the request, writing that “the Court is persuaded by the FTC’s argument that granting the stay would give Plaintiff ‘two bites at the apple,’ by allowing Plaintiff to benefit from the Ryan injunction while preserving its ability to relitigate the issue in this case if the FTC appeals that case and is successful on appeal.“

It really was a wild request. As Hodge put it:

Allowing this case to move forward would not be an unreasonable or inefficient use of judicial resources. Most significantly, the Court believes that it has an obligation to hear cases before it and render its determination after thoughtful deliberation based on the facts and the law, thereby providing its analysis to higher courts, litigants and the public.

This is undoubtedly the right result, since Hodge has no control over Brown and her order. Pacific Legal Foundation’s request for ATS, had it been granted, would have been quite an escalation in the effort to effectively judge-shop rule challenges by filing lawsuits in multiple jurisdictions. If they had their way, one nationwide injunction would stop all judges with contrary opinions from even ruling in other cases.

When they were going to be forced to continue their litigation, ATS — the very next day — filed a notice that they were voluntarily dismissing the lawsuit altogether.

And yet, because of Brown’s ruling, the rule remains blocked for them as well.

What a system!

Ultimately, this is yet another warning of the problems with nationwide injunctions. And with the Northern District of Texas.

Share

Closing my tabs

This Sunday, here are the tabs I’m closing: ...