Abbreviated Pundit Roundup: Courts in session

Abbreviated Pundit Roundup is a long-running series published every morning that collects essential political discussion and analysis around the internet.

We begin today with Chris Geidner of LawDork and his coverage of the SCOTUS opinion in Moyle v. United States and Idaho v. United States, two abortion cases about the implementation of the Emergency Medical Treatment and Labor Act (EMTALA); an opinion that turned out to be only a leaked draft—for now, anyway.

...per a version of the document eventually posted online by Bloomberg, the document was dated June 26, 2024, it is likely that the court was at least at some point planning on releasing the decision on Wednesday. The fact that it apparently had reached the Publications Unit certainly suggests, again, that it likely was, at some point recently, considered to be the final decision.

And yet. The bottom line is that it wasn’t ultimately issued on Wednesday, which means that, for some as of yet unknown reason, it was pulled — which then means that it might not be the final decision.

Given the apparent near-final status, however, it is worth highlighting what the document does say.

As Bloomberg and others have reported, the document, if it becomes the final decision, would dismiss the cases as improvidently granted. Referred to as a DIG, this means the justices shouldn’t have taken the cases — for now, at least — in the first place and does not resolve the underlying question that was the reason why the justices took the case. The decision also would end the stays on the district court’s injunction — meaning, here, that Idaho’s near-total abortion ban would be blocked insofar as and where it conflicts with EMTALA’s protections,

Hassan Ali Kanu of The American Prospect writes that the U.S. Supreme Court legalized a bit of bribery at the state and local levels with its decision in Snyder v. United States.

The case began as a long-shot appeal by a small town mayor who was convicted of public corruption and bribery. James Snyder, the former mayor of Portage, Indiana, was convicted in 2021 after a two-week trial in which federal prosecutors showed that he and a friend he’d appointed to a city board had improperly steered contracts worth more than $1 million to a local truck dealership. Shortly afterward, Snyder showed up at the dealership asking for money, and accepted $13,000 from the company.

[...]

The statute’s text makes it a crime for most state and local officials to “corruptly” solicit, accept or agree to accept “anything of value” with the intent “to be influenced or rewarded in connection” with official business. That language, common sense, international norms and certainly the word “rewarded” would suggest that Congress intended to prohibit bribes and other means of corrupting officials without regard to whether the official received a benefit before or after taking some official action.

Yet, the Court’s right-wing majority agreed with Snyder, saying their conclusion is supported by six different considerations, including the text of the statute, how Congress has regarded and approached the law, and concerns about so-called “federalism,” or the balance of power between the states and federal government. (You’ll notice here that this is basically the “states’ rights” notion, which has been deployed for decades by segregationists and right-wingers to bolster policy arguments that are otherwise unsupportable or just plainly bigoted.)

Ian Millhiser of Vox reports a bit of good news : The Supreme Court slapped down a lawsuit by group of plaintiffs that had no standing to bring the case that the Biden Administration was unduly influencing social media companies in violation of the First Amendment.

The vote in Murthy v. Missouri was 6-3, with Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett joining the Court’s three Democratic appointees in the majority. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.

As Barrett’s majority opinion lays out, this lawsuit never should have been filed in the first place, and no federal court should have entertained it. Her opinion holds that the Murthy plaintiffs, who raised vague allegations that the government tried to censor them, could not even show that the government did anything to harm them in the first place. [...]

The plaintiffs in Murthy are two red states plus an array of individuals who had content removed or suppressed by at least one of the social media platforms. They claimed that platforms censored them because of pressure from the government, and that this pressure violates the First Amendment.

More on the opinion in Murthy v. Missouri from Mark Joseph Stern of Slate:

The lawsuit at the heart of Murthy was cobbled together in 2022 by a motley crew of plaintiffs—none of whom, it turns out, ever even had standing to sue. Missouri and Louisiana were joined by a group of election denialists and vaccine skeptics who alleged that social media companies like Facebook and Twitter were censoring their speech. These platforms are, of course, private corporations, which are not subject to the First Amendment because they are not the government. So the plaintiffs developed a theory that government officials were “coercing” the platforms to remove their speech about elections and vaccines. This “coercion,” they argued, violated their First Amendment right to free speech. (The states claimed to sue on behalf of their residents’ “right to hear” others’ speech.)

Off the bat, it’s important to understand that the plaintiffs’ claims amount to a risible conspiracy theory. Yes, government officials encouraged platforms to remove verifiably false claims about, say, the COVID vaccine killing people. But as Barrett pointed out on Wednesday, the platforms were already removing anti-vax content long before officials urged them to. There is no evidence in the vast record that demonstrates active “coercion,” no smoking gun that shows some government employee ordering a platform to take down specific content or else. At best, the record shows the White House and several federal agencies engaging in persuasion, explaining to platforms why, in their views, they ought to moderate some content more strictly. As Justice Brett Kavanaugh explained at oral arguments, though, persuasion is not censorship: Government officials have their own authority to communicate with private companies, and do not trip some invisible First Amendment wire when they make their opinions known.

Jack Kelly of Wisconsin Watch reports that the Wisconsin Supreme Court is dealing with their own leak of a draft order that says that the Wisconsin court will take up a Planned Parenthood case that asks the court whether access to abortion is a right protected in Wisconsin’s state constitution.

The Wisconsin Supreme Court will hear a lawsuit filed by Planned Parenthood of Wisconsin that asks the court to declare that access to abortion is a right protected by the state constitution, according to a draft court order obtained by Wisconsin Watch.

[...]

The case offers the court’s four-member liberal majority the chance to issue a potentially broad ruling that could include sweeping protections for access to abortion. The draft order obtained by Wisconsin Watch does not include any concurring or dissenting opinions, leaving it unclear which justices voted for or against accepting the case.

Oral arguments in the case likely won’t happen until after the court’s next term starts in the fall.

The lawsuit was filed directly with the state Supreme Court on Feb. 22 by Planned Parenthood of Wisconsin, two abortion providers and a group of anonymous women who have received abortions. The group argues the Wisconsin Constitution protects both a pregnant woman’s right to have an abortion and a doctor’s right to perform the procedure. The draft order defers a decision whether and how to keep the identities of the women anonymous.

Walter Shapiro of The New Republic previews Thursday’s presidential debate.

The 64-year history of presidential debates—dating back to John Kennedy and Richard Nixon meeting in a Chicago TV studio in late September 1960—has been strip-mined for relevant moments. We have been treated to highlights and lowlights from prior face-offs ranging from the 73-year-old Ronald Reagan in 1984 defusing the age issue with a quip (“I am not going to exploit, for political purposes, my opponent’s youth and inexperience”) to Donald Trump stalking the stage in 2016 against Hillary Clinton like a mugger in a dark alley.

But what has been missing from most of these debate scorecards and strategy memos is a sense of timing. Thursday night’s podium battle between Joe Biden and Trump will be taking place three months earlier than any prior major-party debate in history—and four months before early voting begins in earnest 

In a sense, we are still in the preseason football stage of the presidential campaign—and most of the pre-debate commentary fails to reflect this reality. In early summer, with bleak November far away, voters in swing states like Wisconsin and Arizona are in no mood for extended policy debates, even if Trump could stay on a single topic for more than 35 seconds. In similar fashion, this is not the moment when Biden can convince dubious voters that the American economy is the envy of the world, even though it is the truth.

Meh.

David A. Graham of The Atlantic states that an erosion of support for LGBTQ+ rights among Republicans in the past two years is putting significant advances in those rights in danger.

Donald Trump makes for a strange figurehead for such a movement. Just as Trump was a libertine who favored abortion rights before transforming himself into a hero of evangelical Christians who brought down Roe v. Wade, he seems to have had little animus toward LGBTQ people before his political career. If anything, he brought a median New Yorker’s shrugging acceptance. During his first presidential campaign, he spoke little about gay rights but still went further in affirming them than any prior Republican nominee had.

But just as Obama disingenuously claimed to have “evolved” toward greater support for gay rights once in the White House, Trump appears to have made a strategic choice to devolve. He first indicated that he’d preserve an Obama-era rule providing workplace protections for LGBTQ employees, but his administration proceeded to water down or roll backexisting rules, and to institute carve-outs for religious organizations. Even so, Gallup found that GOP support for same-sex relations stayed stable during the Trump presidency. (Trump hosted a gay wedding at Mar-a-Lago a few months ago.)

What happened from 2022 to 2024? The most obvious answer is that Republican candidates made attacks on LGBTQ people a centerpiece of the 2022 midterm elections. Red states and jurisdictions passed laws restricting discussion of sexual orientation in schools, some of the more than 1,800 anti-LGBTQ-rights bills introduced nationwide in the past four years. Bans on books that discussed the subject spread widely. Advocates claimed, with no basis, that these books and other events were part of a dark conspiracy to “groom” children into being gay. States also pushed to restrict gender-affirming care for transgender people, both children and adults, and to circumscribe transgender rights.

Patricia Caro of El País in English reports on a new billboard in Miami that compares Donald Trump to Fidel Castro.

For advertising professionals, a good ad is one that does not go unnoticed. On the other hand, if anyone has aroused sensitivities and provoked controversy for decades among Latinos in Miami, that is Fidel Castro. That is why the Mad Dog Political Action Committee chose the deceased Cuban leader to inaugurate its campaign in Spanish for the November presidential elections. On June 17, Castro’s photo appeared next to an image of Donald Trump on a billboard in south Miami with the legend in Spanish: “No to dictators. No to Trump.”

The Miami billboard has been followed by more signs in Spanish against the Republican candidate. Over the next four weeks, Trump’s photo will wave from a billboard on a highway in Phoenix, Pennsylvania, with the message “Trump will deport you.” It is expected that a million people will see it. Another one of the ads reads: “Trump will deport your parents.” The Republican nominee has promised during the campaign that if he is elected president, he will carry out the largest deportation of undocumented migrants ever seen in the history of the United States.

The people behind the controversial advertising campaign against Trump say that they are going to extend it to other states. In addition to increasing their presence in Florida, Mad Dog PAC plans to place more Spanish-language ads on strategically located billboards in Arizona and New Mexico.

Marquise Francis of NBC News identifies some of the platforms in Black media that are also, effectively, sources of disinformation.

Conservative commentators like Candace Owens are among the most influential distributors of false information, according to the report, followed by a variety of sources, such as platforms geared toward the Black manosphere, like the “Fresh and Fit” podcast. Some episodes of the show have outright challenged women’s intelligence and allowed guests to share false and harmful narratives without pushback.

The report identifies some platforms like the nationally syndicated radio show, “The Breakfast Club,” as a "gateway influencer” or an authentic online space that holds critical space for stemming the tide of disinformation. These platforms, however, are also often targets for “bad actors to introduce harmful narratives,” according to the report.

Three other effective sources of disinformation, the report notes, are extreme Black nativists and separatists, like Foundational Black Americans who don’t believe in the concept of pan-Africanism and have stressed that people who are not descendants of enslaved people should speak for or on behalf of Black Americans, as well as health skeptics such as Rizza Islam, an activist and self-proclaimed intellectual extremist, who has said without evidence that childhood vaccines “destroy the brain chemistry” and lead to autism and other disabilities. According to the CDC, this is not true. None of the other individuals or platforms listed above responded to requests for comment.

Finally today, Jessica Elgot and Peppa Orerar of The Guardian report on the last face-off between Prime Minister Rishi Sunak and Labour leader Keir Starmer prior to Britain’s July 4 elections.

In the last head-to-head debate before voters go to the polls, the Labour leader launched a fierce attack on the culture at the top of the Conservative party, saying it showed the “wrong instinct” to place bets on the future of the country – likening it to the cavalier attitude to Covid rules.

In the angry exchanges, Sunak repeatedly urged the country not to “surrender” to Labour’s plans on tax and migration and said the general election should not be decided purely based on frustration with the Conservatives.

“I understand why you’re frustrated with our party, with me, I get it. But this is not a byelection, it’s a choice with profound consequences for you and our country,” he said. “And before you make that choice, think what a Labour government would mean.

“Can you afford to pay at least £2,000 more in tax?… And if you’re not certain about Labour, don’t surrender to them, don’t vote for any other party, vote Conservative.”

Have the best possible day, everyone!