Tag: neil gorsuch

What to know about the Supreme Court arguments over Trump’s tariffs

Three lower courts have ruled President Donald Trump’s use of emergency powers to impose worldwide tariffs to be illegal. Now the Supreme Court, with three justices Trump appointed and generally favorable to muscular presidential power, will have the final word.In roughly two dozen emergency appeals, the justices have largely gone along with Trump in temporarily allowing parts of his aggressive second-term agenda to take effect while lawsuits play out.But the case being argued Wednesday is the first in which the court will render a final decision on a Trump policy. The stakes are enormous, both politically and financially.The Republican president has made tariffs a central piece of his economic and foreign policy and has said it would be a “disaster” if the Supreme Court rules against him.Here are some things to know about the tariffs arguments at the Supreme Court:Tariffs are taxes on importsThey are paid by companies that import finished products or parts, and the added cost can be passed on to consumers.Through September, the government has reported collecting $195 billion in revenue generated from the tariffs.The Constitution gives Congress the power to impose tariffs, but Trump has claimed extraordinary power to act without congressional approval by declaring national emergencies under the 1977 International Emergency Economic Powers Act.In February, he invoked the law to impose tariffs on Canada, Mexico and China, saying that the illegal flow of immigrants and drugs across the U.S. border amounted to a national emergency and that the three countries needed to do more to stop it.In April, he imposed worldwide tariffs after declaring the United States’ longstanding trade deficits “a national emergency.”Libertarian-backed businesses and states challenged the tariffs in federal courtChallengers to Trump’s actions won rulings from a specialized trade court, a district judge in Washington and a business-focused appeals court, also in the nation’s capital.Those courts found that Trump could not justify tariffs under the emergency powers law, which doesn’t mention them. But they left the tariffs in place in the meantime.The appeals court relied on major questions, a legal doctrine devised by the Supreme Court that requires Congress to speak clearly on issues of “vast economic and political significance.”The major questions doctrine doomed several Biden policiesConservative majorities struck down three of then-President Joe Biden’s initiatives related to the coronavirus pandemic. The court ended the Democrat’s pause on evictions, blocked a vaccine mandate for large businesses and prevented student loan forgiveness that would have totaled $500 billion over 10 years.In comparison, the stakes in the tariff case are much higher. The taxes are estimated to generate $3 trillion over 10 years.The challengers in the tariffs case have cited writings by the three Trump appointees, Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, in calling on the court to apply similar limitations on a signal Trump policy.Barrett described a babysitter taking children on roller coasters and spending a night in a hotel based on a parent’s encouragement to “make sure the kids have fun.”“In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park,” Barrett wrote in the student loans case. “If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to ‘make sure the kids have fun.’”Kavanaugh, though, has suggested the court should not apply the same limiting standard to foreign policy and national security issues.A dissenting appellate judge also wrote that Congress purposely gave presidents more latitude to act through the emergency powers law.Some of the businesses that sued also are raising a separate legal argument in an appeal to conservative justices, saying that Congress could not constitutionally delegate its taxing power to the president.The nondelegation principle has not been used in 90 years, since the Supreme Court struck down some New Deal legislation.But Gorsuch authored a dissent in June that would have found the Federal Communications Commission’s universal service fee an unconstitutional delegation. Justices Samuel Alito and Clarence Thomas joined the dissent.“What happens when Congress, weary of the hard business of legislating and facing strong incentives to pass the buck, cedes its lawmaking power, clearly and unmistakably, to an executive that craves it?” Gorsuch wrote.The justices could act more quickly than usual in issuing a decisionThe court only agreed to hear the case in September, scheduling arguments less than two months later. The quick turnaround, at least by Supreme Court standards, suggests that the court will try to act fast.High-profile cases can take half a year or more to resolve, often because the majority and dissenting opinions go through rounds of revision.But the court can act quickly when deadline pressure dictates. Most recently, the court ruled a week after hearing arguments in the TikTok case, unanimously upholding a law requiring the popular social media app to be banned unless it was sold by its Chinese parent company. Trump has intervened several times to keep the law from taking effect while negotiations continue with China.

WASHINGTON —

Three lower courts have ruled President Donald Trump’s use of emergency powers to impose worldwide tariffs to be illegal. Now the Supreme Court, with three justices Trump appointed and generally favorable to muscular presidential power, will have the final word.

In roughly two dozen emergency appeals, the justices have largely gone along with Trump in temporarily allowing parts of his aggressive second-term agenda to take effect while lawsuits play out.

But the case being argued Wednesday is the first in which the court will render a final decision on a Trump policy. The stakes are enormous, both politically and financially.

The Republican president has made tariffs a central piece of his economic and foreign policy and has said it would be a “disaster” if the Supreme Court rules against him.

Here are some things to know about the tariffs arguments at the Supreme Court:

Tariffs are taxes on imports

They are paid by companies that import finished products or parts, and the added cost can be passed on to consumers.

Through September, the government has reported collecting $195 billion in revenue generated from the tariffs.

The Constitution gives Congress the power to impose tariffs, but Trump has claimed extraordinary power to act without congressional approval by declaring national emergencies under the 1977 International Emergency Economic Powers Act.

In February, he invoked the law to impose tariffs on Canada, Mexico and China, saying that the illegal flow of immigrants and drugs across the U.S. border amounted to a national emergency and that the three countries needed to do more to stop it.

In April, he imposed worldwide tariffs after declaring the United States’ longstanding trade deficits “a national emergency.”

Libertarian-backed businesses and states challenged the tariffs in federal court

Challengers to Trump’s actions won rulings from a specialized trade court, a district judge in Washington and a business-focused appeals court, also in the nation’s capital.

Those courts found that Trump could not justify tariffs under the emergency powers law, which doesn’t mention them. But they left the tariffs in place in the meantime.

The appeals court relied on major questions, a legal doctrine devised by the Supreme Court that requires Congress to speak clearly on issues of “vast economic and political significance.”

The major questions doctrine doomed several Biden policies

Conservative majorities struck down three of then-President Joe Biden’s initiatives related to the coronavirus pandemic. The court ended the Democrat’s pause on evictions, blocked a vaccine mandate for large businesses and prevented student loan forgiveness that would have totaled $500 billion over 10 years.

In comparison, the stakes in the tariff case are much higher. The taxes are estimated to generate $3 trillion over 10 years.

The challengers in the tariffs case have cited writings by the three Trump appointees, Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, in calling on the court to apply similar limitations on a signal Trump policy.

Barrett described a babysitter taking children on roller coasters and spending a night in a hotel based on a parent’s encouragement to “make sure the kids have fun.”

“In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park,” Barrett wrote in the student loans case. “If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to ‘make sure the kids have fun.’”

Kavanaugh, though, has suggested the court should not apply the same limiting standard to foreign policy and national security issues.

A dissenting appellate judge also wrote that Congress purposely gave presidents more latitude to act through the emergency powers law.

Some of the businesses that sued also are raising a separate legal argument in an appeal to conservative justices, saying that Congress could not constitutionally delegate its taxing power to the president.

The nondelegation principle has not been used in 90 years, since the Supreme Court struck down some New Deal legislation.

But Gorsuch authored a dissent in June that would have found the Federal Communications Commission’s universal service fee an unconstitutional delegation. Justices Samuel Alito and Clarence Thomas joined the dissent.

“What happens when Congress, weary of the hard business of legislating and facing strong incentives to pass the buck, cedes its lawmaking power, clearly and unmistakably, to an executive that craves it?” Gorsuch wrote.

The justices could act more quickly than usual in issuing a decision

The court only agreed to hear the case in September, scheduling arguments less than two months later. The quick turnaround, at least by Supreme Court standards, suggests that the court will try to act fast.

High-profile cases can take half a year or more to resolve, often because the majority and dissenting opinions go through rounds of revision.

But the court can act quickly when deadline pressure dictates. Most recently, the court ruled a week after hearing arguments in the TikTok case, unanimously upholding a law requiring the popular social media app to be banned unless it was sold by its Chinese parent company. Trump has intervened several times to keep the law from taking effect while negotiations continue with China.

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November 5, 2025
Democratic senator protests Trump’s ‘grave threats’ in marathon overnight floor speech

Democratic Sen. Jeff Merkley of Oregon has been speaking on the Senate floor for more than 12 hours after announcing he would protest what he called President Donald Trump’s “grave threats to democracy.”He began his remarks at 6:24 p.m. ET Tuesday and was still speaking as of Wednesday morning.“I’ve come to the Senate floor tonight to ring the alarm bells. We’re in the most perilous moment, the biggest threat to our republic since the Civil War. President Trump is shredding our Constitution,” Merkley said in his opening remarks.The Democratic senator pointed to the Trump administration’s previous halting of research grants for universities in its battle over campus oversight as well as the recent indictments of several of the president’s political opponents as well as his push to deploy National Guard troops to Portland.“President Trump wants us to believe that Portland, Oregon, in my home state, is full of chaos and riots. Because if he can say to the American people that there are riots, he can say there’s a rebellion. And if there’s a rebellion, he can use that to strengthen his authoritarian grip on our nation,” Merkley said.Video below: Merkley: Trump tightening ‘authoritarian grip on our nation’Early on Wednesday, the senator condemned the tactics of federal law enforcement against protesters outside of an immigration detention facility in Portland, and in other cities that are seeing a surge of immigration enforcement.His comments on the situation in Oregon come after an appeals court on Monday cleared the way for Trump to deploy troops there after a previous, Trump-appointed federal judge blocked his first efforts to do so.“This is an extraordinarily dangerous moment,” Merkley added Wednesday morning. “An authoritarian president proceeding to attack free speech, attack free press, weaponize the Department of Justice, and use it against those who disagree with him, and then seeking the court’s permission to send the military into our cities to attack people who are peaceful(ly) protesting.”The senator’s remarks represent a symbolic show of Democratic resistance as the party has blocked Republican efforts to reopen the government 11 times, remaining in a standoff over health care subsidies.The shutdown is expected to drag on Wednesday as the impasse enters a fourth week.Earlier this year, Democratic Sen. Cory Booker of New Jersey held the Senate floor for 25 hours and 5 minutes, warning against the harms he said the administration was inflicting on the American public. The effort broke the record for the longest floor speech in modern history of the chamber.This was also not Merkley’s first time holding the Senate floor – he previously spoke for more than 15 hours in 2017 against Neil Gorsuch’s nomination to the Supreme Court.In recent years, the chamber has seen a number of marathon speeches mounted by senators of both parties, including Sens. Chris Murphy on gun control in 2016; Rand Paul over National Security Agency surveillance programs in 2015; and Ted Cruz against the Affordable Care Act 2013.

WASHINGTON —

Democratic Sen. Jeff Merkley of Oregon has been speaking on the Senate floor for more than 12 hours after announcing he would protest what he called President Donald Trump’s “grave threats to democracy.”

He began his remarks at 6:24 p.m. ET Tuesday and was still speaking as of Wednesday morning.

“I’ve come to the Senate floor tonight to ring the alarm bells. We’re in the most perilous moment, the biggest threat to our republic since the Civil War. President Trump is shredding our Constitution,” Merkley said in his opening remarks.

The Democratic senator pointed to the Trump administration’s previous halting of research grants for universities in its battle over campus oversight as well as the recent indictments of several of the president’s political opponents as well as his push to deploy National Guard troops to Portland.

“President Trump wants us to believe that Portland, Oregon, in my home state, is full of chaos and riots. Because if he can say to the American people that there are riots, he can say there’s a rebellion. And if there’s a rebellion, he can use that to strengthen his authoritarian grip on our nation,” Merkley said.

Video below: Merkley: Trump tightening ‘authoritarian grip on our nation’

Early on Wednesday, the senator condemned the tactics of federal law enforcement against protesters outside of an immigration detention facility in Portland, and in other cities that are seeing a surge of immigration enforcement.

His comments on the situation in Oregon come after an appeals court on Monday cleared the way for Trump to deploy troops there after a previous, Trump-appointed federal judge blocked his first efforts to do so.

“This is an extraordinarily dangerous moment,” Merkley added Wednesday morning. “An authoritarian president proceeding to attack free speech, attack free press, weaponize the Department of Justice, and use it against those who disagree with him, and then seeking the court’s permission to send the military into our cities to attack people who are peaceful(ly) protesting.”

The senator’s remarks represent a symbolic show of Democratic resistance as the party has blocked Republican efforts to reopen the government 11 times, remaining in a standoff over health care subsidies.

The shutdown is expected to drag on Wednesday as the impasse enters a fourth week.

Earlier this year, Democratic Sen. Cory Booker of New Jersey held the Senate floor for 25 hours and 5 minutes, warning against the harms he said the administration was inflicting on the American public. The effort broke the record for the longest floor speech in modern history of the chamber.

This was also not Merkley’s first time holding the Senate floor – he previously spoke for more than 15 hours in 2017 against Neil Gorsuch’s nomination to the Supreme Court.

In recent years, the chamber has seen a number of marathon speeches mounted by senators of both parties, including Sens. Chris Murphy on gun control in 2016; Rand Paul over National Security Agency surveillance programs in 2015; and Ted Cruz against the Affordable Care Act 2013.

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October 22, 2025
Idaho’s ban on youth gender-affirming care has families desperately scrambling for solutions

Forced to hide her true self, Joe Horras’ transgender daughter struggled with depression and anxiety until three years ago, when she began to take medication to block the onset of puberty. The gender-affirming treatment helped the now-16-year-old find happiness again, her father said.

A decision by the U.S. Supreme Court late Monday allowing Idaho to enforce its ban on such care for minors could jeopardize her wellbeing once again. Horras is scrambling to figure out next steps and is considering leaving Idaho, where he’s lived his whole life, to move to another state.

“It would be devastating for her,” Horras, who lives in Boise, told The Associated Press. “If she doesn’t have access to that, it will damage her mental health.”

Horras is among the Idaho parents desperate to find solutions after their trans children lost access to the gender-affirming care they were receiving. The U.S. Supreme Court’s decision allows the state to put in place a 2023 law that subjects physicians to up to 10 years in prison if they provide hormones, puberty blockers or other gender-affirming care to people under age 18. A federal judge in Idaho had previously blocked the law in its entirety.

The ruling will hold while lawsuits against the law proceed through the lower courts, although the two transgender teens who sued to challenge the law will still be able to obtain care.

At least 24 states have adopted bans on gender-affirming care for minors in recent years, and most of them face legal challenges. Twenty other states are currently enforcing the bans.

Monday’s ruling was the first time the U.S. Supreme Court waded into the issue. The court’s 6-3 ruling steered clear of whether the ban itself is constitutional. Instead, the justices went deep into whether it’s appropriate to put enforcement of a law on hold for everyone, or just those who sue over it, while it works its way through the courts.

In his concurring opinion, Justice Neil Gorsuch said “lower courts would be wise to take heed” and limit use of “universal injunctions” blocking all enforcement of laws that face legal challenges. In a dissent, Justice Ketanji Brown Jackson said the court should not decide the fate of those actions without reading legal briefs and hearing arguments on the issue.

Rights groups in Idaho are supporting families to make sure they’re aware the measure has taken effect. The American Civil Liberties Union of Idaho said it plans to hold a virtual event over Zoom with licensed counselors and legal experts to help people process the shock and answer any questions they may have about the law.

“Yesterday was really just an outpouring of fear, questions, people trying to figure out how this is going to affect them personally,” said Jenna Damron, the group’s advocacy fellow. “Getting information out quickly that is accurate is kind of our first priority.”

Paul Southwick, legal director for ACLU of Idaho, said the group wants families to know what their options are.

“Gender-affirming medical care is now immediately illegal for minors in the state of Idaho. However, care remains legal for adults, and it’s also legal for minors to seek gender-affirming medical care out of state,” he said.

In Boise, Horras’ 16-year-old daughter wears an estrogen patch and receives estrogen injections every six months. Her last shot was in December and Horras now has two months to find a new out-of-state provider who can continue administering the medication. The situation has left him feeling scared, he said, and angry toward the state politicians who passed the law last year.

“It’s cruel,” he said.

Advocates, meanwhile, worry that lower-income families won’t be able to afford to travel across state lines for care. Arya Shae Walker, a transgender man and activist in the small city of Twin Falls in rural southern Idaho, said he was concerned that people would alter the doses of their current prescriptions in order to make them last longer. His advocacy group has already taken down information on its website on gender-affirming care providers for young people in the area out of concern of potential legal consequences.

The broader issue of bans on gender-affirming care for minors could eventually be before the U.S. Supreme Court again. Last year, a ban on gender-affirming care for minors in Arkansas was shot down by a federal judge, while those in Kentucky and Tennessee were allowed to be enforced by an appeals court after being put on hold by lower-court judges. Montana’s law is not being enforced because of a ruling from a state judge.

Laws barring transgender youth from playing on sports teams that align with their gender identity are also being challenged across the country. An appeals court on Tuesday ruled that West Virginia’s transgender sports ban violates the rights of a teen athlete under Title IX, the federal civil rights law that prohibits sex-based discrimination in schools. Hours later, an Ohio law that bars transgender girls from girls scholastic sports competitions was put on hold by a judge. Set to take effect next week, the law also bans gender-affirming care for transgender youth.

Those who support the bans say they want to protect children and have concerns about the treatments themselves.

Gender-affirming care for youth is supported by major medical organizations, including the American Medical Association, the American Academy of Pediatrics and the American Psychiatric Association. However, England is limiting the ability of people younger than 16 to begin a medical gender transition.

The National Health Service England recently cemented a policy first issued on an interim basis almost a year ago that sets a minimum age at which puberty blockers can be started, along with other requirements. NHS England says there is not enough evidence about their long-term effects, including “sexual, cognitive or broader developmental outcomes.”

Medical professionals define gender dysphoria as psychological distress experienced by those whose gender expression does not match their gender identity. Experts say gender-affirming therapy can lead to lower rates of depression, suicidal thoughts and suicide attempts among transgender people.

Chelsea Gaona-Lincoln, executive director of Idaho-based advocacy group Add The Words, said she’s anticipating “a pretty horrendous ripple effect.” But seeing her community uniting in support has given her a glimmer of hope.

“There are people coming together, and it’s so important, for especially our youth, to feel seen and affirmed as they are,” she said.

Southwick, the legal director of ACLU of Idaho, said the 9th U.S. Circuit Court of Appeals is expected to hold a hearing this summer on its lawsuit challenging the law.

___

Associated Press writer Geoff Mulvihill in Cherry Hill, New Jersey, contributed.

Copyright 2024 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.

Claire Rush, Associated Press

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April 16, 2024
Justices Expand Supreme Court To 40 Right-Wing Buddies

WASHINGTON—Explaining that the move just made sense given the national importance of their rulings, the six conservative justices announced Friday that they had expanded the U.S. Supreme Court to include 40 of their right-wing buddies. “The Supreme Court is pleased to welcome a few stalwart conservative judges from the circuit courts, a dozen reactionaries from Harvard Law School, and my brother-in-law, an accountant,” said Chief Justice John Roberts, adding that he, along with Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, had overruled the court’s three liberal members and sworn in 40 new conservative justices that morning. “We figured Biden or Congress would try to expand the court, given all that’s going on, and we were surprised when they didn’t—but hey, that’s typical Washington gridlock for you. Hanging out with the same nine people all the time is kind of a drag, so we decided to take it upon ourselves to call up the Heritage Foundation and get 15 recommendations. Neil also invited some of his golf buddies, Amy called a couple priests she knows through church, and for diversity, we let a couple of the guys bring their wives. It’ll be nice having Ginni here on the court, for Clarence’s sake. And as a bonus, this should give the Supreme Court a rock-solid right-wing majority that will last until the end of time.” At press time, the Supreme Court had ruled 46-3 to overturn gay marriage.

Nude Justice Breyer Leaves Supreme Court After Turning In His Robes

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June 30, 2023
She got $0 from condo sale. Supreme Court weighs fairness.

The Supreme Court seemed likely to give a 94-year-old Minneapolis woman another day to try to recoup some money after the county kept the entire $40,000 when it sold her condominium over a small unpaid tax bill.

The justices on Wednesday seemed in broad agreement with arguments by the lawyer for Geraldine Tyler that Hennepin County, Minnesota, violated the Constitution’s prohibition on the taking of private property without “just compensation.”

“At bottom, she’s saying the county took her property and made a profit on her surplus equity. It belongs to her,” Justice Clarence Thomas said.

Tyler, who now lives in an apartment building for older people, owed $2,300 in taxes, plus roughly $13,000 in interest, penalties and costs, when Hennepin County took the title to the one-bedroom apartment in 2015. The county said she did nothing to hold onto her one-time residence.

The apartment, valued at $93,000 according to the Minnesota Lawyer, was sold the next year for $40,000 — about $25,000 more than the amount Tyler owed in unpaid taxes.

Justices Elena Kagan and Neil Gorsuch said the county’s position appeared to be that it could seize million-dollar properties over tiny tax bills. “So a $5 property tax, a million dollar property, good to go?” Gorsuch asked Neal Katyal, representing the county.

Katyal essentially said yes, noting that the Supreme Court in 1956 upheld New York City’s decision to keep the $7,000 it received for selling a property it seized over a $65 water bill.

In this case, Katyal said, Tyler made clear she wanted nothing to do with the condo in the five years she owed back taxes.

“Why in the world would it be that Tyler walked away from her home? The reason, we think, is that there was no equity in the home,” Katyal said. The justices could leave it to a lower court to sort out the money details.

Geraldine Tyler, 94, lost her condo after officials in Hennepin County, Minnesota, took it away over a $2,300 tax bill.

Pacific Legal Foundation

Invoking the Magna Carta

Katyal tried to appeal to the conservative justices in particular by references to history dating back to 1272 and the invocation of the court’s recent rulings overturning Roe v. Wade and expanding gun rights.

History and tradition figured prominently in those blockbuster rulings, but Katyal didn’t appear to attract any conservative support in the court’s final arguments until its new term begins in October.

“And I just don’t understand what on earth any of that history has to do with this case,” Gorsuch said.

Christina Martin, representing Tyler, went back even earlier than did Katyal to make a basic point about fairness, saying that the Magna Carta in 1215 spelled out “that the government could not take more than it was owed.”

County can take more than it is owed

Minnesota is among roughly a dozen states and the District of Columbia that allow local jurisdictions to keep the excess money, according to the Pacific Legal Foundation, a not-for-profit public interest law firm focused on property rights that represented Tyler at the Supreme Court.

At least 8,950 homes were sold because of unpaid taxes and the former owners received little or nothing in those states between 2014 and 2021, according to Pacific Legal.

Other states are: Alabama, Arizona, Colorado, Illinois, Maine, Massachusetts, Nebraska, New Jersey, New York, Oregon and South Dakota, the group said.

There has been no explanation about why Tyler stopped paying her property taxes when she moved from the condo, where she had lived since 1999. She moved for “health and safety” reasons, Pacific Legal said.

The county said in court papers that Tyler could have sold the property and kept whatever was left after paying off the mortgage and taxes, refinanced her mortgage to pay the tax bill or signed up for a tax payment plan.

Instead, she did nothing for five years, the county said, until after authorities followed state law and sold the condo. The county wrote: Tyler believes “the Constitution required the State to serve as her real estate agent, sell the property on her behalf, and write a check for the difference between the tax debt and the fair market value.”

Lower courts sided with the county before the justices agreed to step in.

Minnesota and a handful of states and government associations are backing the county, warning that a Supreme Court ruling could tie the hands of local governments that rely on property taxes.

But the bulk of support in court filings is with Tyler, including AARP, business groups, real estate interests and other people who have gone through experiences similar to hers.

A Massachusetts man described his ongoing fight with authorities over a tax bill of $900 on a property he says is worth at least $330,000 in a beach town on Cape Cod Bay. In a filing from New York, property tax attorney David Wilkes and legal services groups wrote that New York’s rules “excessively takes far more than what is due to the government and go well beyond an appropriate deterrent to those homeowners who would ignore a tax delinquency.”

The Biden administration told the court that Tyler’s claim that her property was taken without just compensation, in violation of the Fifth Amendment, is the stronger of her arguments.

Tyler also is raising a claim that Minnesota’s law violates the Eighth Amendment’s prohibition on excessive fines. But if the court rules in her favor based on the Fifth Amendment, it wouldn’t have to decide the other issue.

Not until 2019 did the Supreme Court rule that the “excessive fines” clause applied to the states as well as the federal government.

A decision in Tyler v. Hennepin County, Minnesota, 22-166, is expected by late June.

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April 27, 2023
Takeaways from the Supreme Court’s hearing on Twitter’s liability for terrorist use of its platform | CNN Business

CNN
—

After back-to-back oral arguments this week, the Supreme Court appears reluctant to hand down the kind of sweeping ruling about liability for terrorist content on social media that some feared would upend the internet.

On Wednesday, the justices struggled with claims that Twitter contributed to a 2017 ISIS attack in Istanbul by hosting content unrelated to the specific incident. Arguments in that case, Twitter v. Taamneh, came a day after the court considered whether YouTube can be sued for recommending videos created by ISIS to its users.

The closely watched cases carry significant stakes for the wider internet. An expansion of apps and websites’ legal risk for hosting or promoting content could lead to major changes at sites including Facebook, Wikipedia and YouTube, to name a few.

For nearly three hours of oral argument, the justices asked attorneys for Twitter, the US government and the family of Nawras Alassaf – a Jordanian citizen killed in the 2017 attack – how to weigh several factors that might determine Twitter’s level of legal responsibility, if any. But while the justices quickly identified what the relevant factors were, they seemed divided on how to analyze them.

The court’s conservatives appeared more open to Twitter’s arguments that it is not liable under the Anti-Terrorism Act, with Justice Amy Coney Barrett at one point theorizing point-by-point how such an opinion could be written and Justice Neil Gorsuch repeatedly offering Twitter what he believed to be a winning argument about how to read the statute.

The panel’s liberals, by contrast, seemed uncomfortable with finding that Twitter should face no liability for hosting ISIS content. They pushed back on Twitter’s claims that the underlying law should only lead to liability if the help it gave to ISIS can be linked to the specific terrorist attack that ultimately harmed the plaintiffs.

Here are the takeaways from Wednesday:

The justices spent much of the time picking through the text of the Anti-Terrorism Act, the law that Twitter is accused of violating – especially the meaning of the words “knowingly” and “substantial.”

The law says liability can be established for “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”

Justice Sonia Sotomayor seemed unpersuaded by Twitter attorney Seth Waxman’s arguments that Twitter could have been liable if the company were warned that specific accounts were planning a specific attack, but that those were not the facts of the case and Twitter was therefore not liable in the absence of such activity and such warnings.

Chief Justice John Roberts grappled with the meaning of “substantial” assistance: Hypothetically, he asked, would donating $100 to ISIS suffice, or $10,000?

“Substantial assistance” would hinge on the degree to which a terror group actually uses a platform such as Twitter to plan, coordinate and carry out a terrorist attack, Waxman said at one point. The existence of some tweets that generally benefited ISIS, he argued, should not be considered substantial assistance.

The justices alluded to the gravity of the dilemma as they drew analogies to other industries that have grappled with related claims.

“We’re used to thinking about banks as providing very important services to terrorists,” said Justice Elena Kagan. “Maybe we’re not so used to, but it seems to be true, that various kinds of social media services also provide very important services to terrorists,” the liberal justice said. “If you know you’re providing a very important service to terrorists, why aren’t you [said to be] providing substantial assistance and doing it knowingly?”

Eric Schnapper, an attorney representing the Alassaf family – who had also argued on behalf of the plaintiffs in Tuesday’s Supreme Court arguments in Gonzalez v. Google – again struggled to answer justices’ questions as they sought to find some limiting principle to constrain the scope of the Anti-Terrorism Act.

Justice Brett Kavanaugh asked Schnapper to respond to concerns that a ruling finding Twitter liable for the ISIS attack — even when the tweets it hosted had nothing to do with it — would negatively affect charities and humanitarian organizations that might incidentally assist terrorist organizations through their work.

Schnapper suggested those groups might be insulated from liability due to the law’s “knowledge” requirement, but did not offer the justices a way to draw a bright-line distinction.

Justice Clarence Thomas hinted at the potential expansiveness of what Schnapper was proposing in calling for Twitter to be held liable for the ISIS tweets.

“If we’re not pinpointing cause-and-effect or proximate cause for specific things, and you’re focused on infrastructure or just the availability of these platforms, then it would seem that every terrorist attack that uses this platform would also mean that Twitter is an aider and abettor in those instances,” Thomas said.

“I think in the way that you phrased it, that would probably be, yes,” Schnapper replied, going on to suggest a test involving “remoteness and time, weighed together with volume of activity.”

Several justices asked the parties to respond to hypotheticals about what liability a business would have for dealing with Osama bin Laden. Their reliance of the terrorist in their examples seemed to get at the “knowing” requirement of the law.

However, the court is being asked to issue an opinion that will guide lower courts in cases that likely will not involve such high-profile figures.

Kagan invoked bin Laden’s name when she put forward a hypothetical for US Deputy Solicitor General Edwin Kneedler about a bank that offered services to a known terrorist that were the same services it provided its non-terrorist clients. Kneedler, arguing that Twitter should not be found liable under the anti-terrorist law in this case, said that in that scenario, the bank could be sued under the law.

Other exchanges during the hearing revolved around the liability for a business that sold bin Laden a cell phone, with Justice Ketanji Brown Jackson asking if the business could be sued even if bin Laden did not use the cell phone for the terrorist attack that injured the plaintiff. Schnapper said that bin Laden would not need to use the cell phone in an attack for the seller to be found liable.

Gorsuch put forward a theory for why Twitter should prevail in the case but neither Twitter nor the US Justice Department took him up on it.

Gorsuch gave Waxman a chance to reframe his arguments for why Twitter shouldn’t be liable, based on language in the law suggesting a defendant is liable for assistance provided to a person who commits an act of international terrorism. Gorsuch noted the lawsuit against Twitter doesn’t link Twitter to the three people involved in the 2017 attack on the Istanbul nightclub.

Waxman declined to fully adopt that view, arguing instead that the “aid and abet” language in the statute should be tied to the terrorist activity that gives rise to a suit.

When Kneedler was up to podium, Gorsuch offered up the theory again, implying it would be a way for Twitter to avoid liability in this case.

“It seems to me that that’s a pretty important limitation on aiding and abetting liability and conspiracy liability … that you have to aid an actual person,” Gorsuch said. “It’s not just a pedantic point. It has to do with the idea that you’re singling somebody out, and that is different than just doing your business normally, and that does help limit the scope of the act.”

Jackson later hypothesized why Twitter and the US government were reluctant to endorse Gorsuch’s interpretation of the law, suggesting it was not the limitation Gorsuch thought it was.

“I’m wondering whether the concern about that is, if you’re focusing on the person [who committed a terrorist act]… that it seems to take the focus away from the act itself,” she told Kneedler. “You could ‘aid and abet’ a person who committed the act, even if it’s not with respect to that act.”

Justice Kagan voices concern on whether Supreme Court should step in. Listen why

The Taamneh case is viewed as a turning point for the future of the internet, because a ruling against Twitter could expose the platform – and numerous other websites – to new lawsuits based on their hosting of terrorist content in spite of their efforts to remove such material.

While it’s too early to tell how the justices may decide the case, the questioning on Wednesday suggested some members of the court believe Twitter should bear some responsibility for indirectly supporting ISIS in general, even if the company may not have been responsible for the specific attack in 2017 that led to the current case.

But a key question facing the court is whether the Anti-Terrorism Act is the law that can reach that issue – or alternatively, whether the justices can craft a ruling in such a way that it does.

Rulings in the cases heard this week are expected by late June.

This story has been updated with Wednesday’s developments.

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February 22, 2023