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Brian Lehrer: It's The Brian Lehrer Show, on WNYC. Good morning, again, everyone. Back with us now, on another Supreme Court decision day is Aziz Huq, professor of law at the University of Chicago, and author of the forthcoming book, The Rule of Law: A Very Short Introduction. Professor Huq has been good enough to be on standby for us for each of the decision days this month, and here we are again. Professor Huq, ongoing thanks, and welcome back to WNYC.

Aziz Huq: Good morning, Brian. Thank you for having me.

Brian Lehrer: We have a few decisions from today and yesterday, so let's start to go through them. As people probably heard, the court accidentally posted a decision yesterday that they weren't actually ready to release, on an abortion case from Idaho. They then removed it, but this morning, they officially announced it. Can you go over this case for us? I think a lot of people didn't realize abortion was up again, in some way, before the Supreme Court.

Aziz Huq: This is a case about a conflict between an Idaho ban on abortions, except for cases in which the life of the mother is at risk, and a federal law, called EMTALA, that requires hospitals to provide stabilizing emergency care. The issue in the case was whether the federal law preempted, which is the technical term for pushed aside, the Idaho statute in those cases in which the provision of abortion was necessary, not to protect the life of the mother.

That's an exception under the Idaho law, but when it's necessary to protect the health of the mother. The posture of this case, the way that it came to the court, is important for understanding what happened today. The lower federal court here, the district court, issued an injunction against the Idaho statute, finding that it was preempted by EMTALA. The ordinary course of litigation is that that trial court order gets appealed to a federal appeals court, and then the federal appeals court ruling is appealed to the US Supreme Court.

In this case, Idaho stepped in and sought to have the Supreme Court decide the case before a federal appeals court had ruled on it. The Supreme Court decided to do that, and in the interim, stayed the injunction that was issued by the district court. The effect of that stay was to allow Idaho to continue to enforce their abortion ban in cases where women or pregnant people went into a hospital in Idaho and sought medical care to stabilize their condition, where an abortion was necessary to protect the mother's health.

We know from the record and the case, that a consequence of staying, that district court order, was about once a week, a woman or a pregnant person would come into an Idaho hospital seeking care for a condition like preeclampsia, like a broken membrane, perhaps ectopic pregnancy, and have to be airlifted to another state. What the Supreme Court did today was to say that it had prematurely stepped into the case, and it vacated its stay and sent the case back to the lower court.

The consequence is that the litigation here is ongoing, that the district court will get another bite at the apple, in light of what the court described as changed circumstances. We can perhaps talk about whether there really was a change in the circumstances. At least for the time being, the district court's injunction allowing pregnant persons to obtain stabilizing medical care for health-threatening conditions, such as preeclampsia, remains in place, and so they will not have to be, at least in the short-term, airlift out of Idaho.

The important thing is that in this case, as in the litigation around mifepristone, the abortion pill, the court did not issue a ruling on the merits. What it did was, it stalled, it stretched out the litigation in ways that mean that it will continue at least for a year or two, perhaps coming back to the High Court.

Brian Lehrer: We're seeing a lot of that recently. It seems to me, in the mifepristone case, as you say, in this case, in the social media ruling yesterday, which we'll get into some of the details of. Not so much ruling on the merits, but ruling that the plaintiffs don't have standing in the case, or some other technical provisions that mean the same issue is likely to come back before the court again, right?

Aziz Huq: I think that abortion cases are different from the social media case in the following way. I think in both of the two abortion cases, it is relatively clear that a new challenge will emerge in the short term. The thing that is most likely to prevent those new challenges happening is a change in administration. If the administration changes, it is almost certain that the FDA would alter its permission regime for mifepristone.

It is almost certain that the federal government would alter its interpretation of EMTALA, not to require states like Idaho to provide abortions in health-related emergencies.

Brian Lehrer: Let me jump in on that for a second, because it seems to me that that poses a very important question for the debate tonight, between Biden and Trump, if the moderators choose to ask it, "Would you use your power as President to direct the FDA, which is an executive branch agency, to change the rules on abortion drugs, or what states may do with respect to emergency abortions?" Correct?

Aziz Huq: I think that's absolutely correct. I think that what these cases do is somewhat paradoxical. On the one hand, they look like wins for pro-choice litigators and people who support access to reproductive care. On the other hand, what they immediately tee up is a situation in which either the administration changes, and it is almost certain, I think, that a Republican administration would preclude or make more difficult abortion through the provision of mifepristone, through EMTALA.

If Biden wins, these litigations are going to continue, because the administration's position will not change, and the Supreme Court will get another bite at the apple. There's a sense in which what looks like a win for the pro-choice camp is really the court setting up a situation in which its pro-life members can say, "Well, heads, I win. Tails, you lose."

Brian Lehrer: Aziz Huq, from the University of Chicago, with us as we break down some Supreme Court decisions yesterday and today. Let's go into the one that came out yesterday, that seems to me it was fairly major. The government can ask social media sites to remove or moderate misinformation and disinformation. Is it accurate to say that conservatives, hoping to ride this information to political victory, lost at the Supreme Court yesterday?

Aziz Huq: This case involves a set of communications between the Biden administration and various social media companies, in the early stages of the pandemic, while the Biden administration was in office. In those communications, various members of the White House and other agencies interacted with platforms such as Facebook, and Instagram, and argued that the platforms should do more to remove health-related disinformation.

The holding of the court is that the states and individuals challenging those Biden-era actions, which are commonly called jawboning, do not have the right kind of legal injury or standing necessary to bring this challenge. The standing ruling in the jawboning case is highly fact-specific. The ruling focuses on [unintelligible 00:09:44] details of which federal officials said what to which platforms, and the exact timing of the removals of the plaintiff's posts.

It is perfectly possible that downstream, later in time, there will be another plaintiff who can bring a challenge to government jawboning of social media platforms. Now, the wrinkle here is that the campaign of interaction between the Biden White House and social media platforms was very much focused upon COVID-19, and it was concentrated in 2021, spilling over into '22.

To the best of anyone's public knowledge, there is no ongoing campaign on the part of the administration to jawbone social media companies into mitigating rates of political disinformation. At least today, there isn't a plaintiff who can come into federal court and say, "I have been harmed, I've been censored as a consequence of what the government has done by jawboning a social media company."

It's certainly possible that we see one of these cases arising in the future. One can think of different ways in which a jawboning case can arise under, let's say, a Trump versus a Biden administration. Those are probably very different kinds of cases, but we now know more about the kind of factual allegations, the chain of causation between the government on the one hand and the social media user at the end of the day, that's going to be needed to be proved in order to get into court by showing standing.

Brian Lehrer: Right. People who were harmed in this case were either politicians who wanted to denounce, I think, mostly the vaccine in the time period that you're talking about this was from, or science deniers hoping to profit off false information about the vaccines, and that period has ended. As a matter of principle, where's the line for you, as a constitutional expert? We don't want the government dictating to any media what they can or cannot say for the most part. Right? We don't want to be Russia in this respect.

Aziz Huq: Right. There are two lines of cases under the First Amendment that discuss the question of when government communication to a newspaper, a radio station, a platform, or some other venue for speech crosses the line between the provision of information, and becomes coercion. For example, imagine that there is a concert hall or a speaking venue in the early days of COVID, and the government tells the owner of that venue--

"Look, you should know that we have just learned that gathering together large numbers of people where individuals are raising their voices, shouting, or singing, or the like, is very likely to cause rapid transmission of this potentially deadly virus." We surely don't want to discourage the government from providing that kind of information. On the other hand, we don't want the government threatening to use its regulatory powers for the purpose of suppressing speech.

Especially when the regulation that it's bringing to bear, imagine a health and safety regulation or a zoning rule, has nothing to do on its face with speech. The court, in these two lines of cases, has given quite different ways of drawing that line. To my mind, the line in effect depends upon the intent of the government actors and the likelihood of a intent to censor be transmitting into effectual suppression of ideas.

How you apply, or how you interpret that intent to censor, understanding of the line, across the many, many different kinds of situations in which zoning boards, health and safety entities at the city, at the state level, at the federal level, deal with all sorts of different speech venues, I think presents an awful lot of factual questions.

Brian Lehrer: There's a second case like this that we're waiting for the decision on, right? Also pertaining to how social media sites can deal with misinformation on their platforms.

Aziz Huq: That's correct. There are a pair of cases, both of which are called Net Choice. Net choice is essentially the trade association for social media platforms in which the platforms have challenged regulation, state laws issued by Florida and Texas, allegedly to counter a liberal bias on platforms. We're still waiting for those rulings, which I think are importantly more consequential than yesterday's Murphy ruling.

They are less likely to be dismissed on procedural grounds, and they present front and center the question of when and how can the state, using its general powers to regulate, shape the content moderation policies of platforms? Can the state require the publication of those policies? Can it require, in essence, a right of reply? Can it mandate a human appeal decision when someone's posts are removed? I think these are tremendously consequential decisions, not just for Florida and for Texas, but for many states.

For example, New York recently enacted a regulation of social media that's very focused upon the use of social media by teenagers. Although that measure is obviously not before the court in the net choice cases, I think it's likely that what the court says in the net choice cases will influence, perhaps narrow states like New York's regulatory choices when it comes to dealing with all sorts of harms that arise out of social media platforms.

Brian Lehrer: We're breaking down some Supreme Court decisions that came out yesterday morning and this morning, with Aziz Huq, professor of law at the University of Chicago. I don't think we're going to take calls or texts in this segment as we have a few more cases, just to get through and have him explain, but if you think you have a very relevant comment or question to any of these decisions, 212-433-WNYC, and maybe we can get to a few in our remaining time, 212-433-9692.

They issued opinions today, in three other cases that we haven't mentioned yet, dealing with the EPA, the Purdue Pharma Settlement, and the SEC, the Security and Exchange Commission's administrative courts. Let's start with the EPA. In a 5-4 decision, so very divided court, they blocked the EPA from enforcing the so-called Good Neighbor provision of the Clean Air Act. This is another case where they haven't said the policy is unconstitutional, but that while it's being challenged, it cannot be enforced.

Remind us what the good neighbor provision is, and why this is in front of the Supreme Court in the first place.

Aziz Huq: The Clean Air Act requires both the federal government and the states to cooperate to regulate and limit certain pollutants. Ozone is one of them. The way that the regulation works is that the federal government issues a mandate with respect to how much ozone is safe to have in the atmosphere, and then the states implement what are called State Implementation Plans, or SIPs. If a SIP is not adequate, the federal government can come in and replace it with its own implementation plan.

What is the issue in this case is the federal government's authority, under the Clean Air Act, to impose upon states a alternative implementation plan when their own fails to deal with the spillover effects of ozone on neighboring states. Those spillover effects are covered by something called the Good Neighbor provision of the Clean Air Act. The implementation plans for ozone at the level of the state and at the federal government have a complicated procedural history. There are a couple of dozen implementation plans.

Some of them have been struck down or rejected by the federal government, but then the federal government's rejection has been stayed, or [unintelligible 00:19:31] negated by a federal appeals court. What's an issue in this case is whether the EPA can proceed to require those states where the EPA thinks the SIP, the State Implementation Plan, is inadequate, whether the federal government can require those states to adopt the federal plan while litigation is ongoing in other states that have successfully challenged the federal government's decision.

The basis for the court's ruling today is not constitutional. It is a statutory provision. It is part of a general statute that covers all administrative agencies, called the Administrative Procedure Act. It essentially requires that the federal government, when it acts through its agencies, avoids arbitrary and capricious actions. The takeaway from today's Ohio decision is--

At least as I read the decision, in all likelihood, the federal government, or the EPA, will need to go back and rewrite its alternative implementation plans in order to account for considerations and arguments that the court's majority says were not considered sufficiently at the right time. Think of this as a do-over with respect to ozone regulation, where the ozone is spilling across borders.

Because this is a do-over, and because all do-overs require time, essentially, this is another decision, raising the regulatory stakes of the November 2024 election.

Brian Lehrer: Wow. Of course, the basic premise here is, the most basic, before we get into all the details you were just describing, is that pollution is a federal issue when it crosses state lines. If there's a polluter in one state, but it causes pollution in another state, it becomes a federal regulatory issue. This is all about how far the federal government can go in protecting those downstream states. Next opinion, the one invalidating the big settlement with Purdue Pharma that would have shielded the Sackler family from further lawsuits.

This was another 5-4 decision that crossed liberal-conservative lines. Justice Gorsuch wrote the majority opinion, joined by Justices Thomas, Alito, Barrett, and Ketanji Brown Jackson. What? What was she doing there? Explain this decision, and that 5-4 makeup.

Aziz Huq: The Harrington decision concerns a settlement that was reached between the plaintiff victims of the opioid crisis, and particularly, ones who were harmed by OxyContin, which is a drug that was produced and sold by Purdue, and the Purdue Company. Purdue is in bankruptcy. The issue in the case is, can Purdue reach a bankruptcy settlement, where the settlement includes all of the claims for damages by these victims?

Can it reach a settlement that has a clause in it that dissolves the liability, not just of Purdue, but also of the Sackler family? Now, the reason that the Sackler family wanted that clause in the bankruptcy settlement, even though they are not in bankruptcy, even though they are not part of the bankruptcy estate, is that Purdue is a closely owned corporation. They are essentially the owners of Purdue.

Over the last several years, as it became clear that Purdue would be subject to litigation of this kind, because of the opioid crisis, what the Sacklers did is that they gradually withdrew money profits from Purdue. They moved that money into the family, roughly on the order of $11 billion, and then dispersed the $11 billion in various trusts in the United States, and entities that are held outside the United States.

As part of the settlement, they have agreed to give back between $4 and $6 billion, but that is maybe less than half of what they have extracted in the last several years, from Purdue. The issue in the case is whether the bankruptcy court had the power to release, not just Purdue from its ongoing tort liabilities, but also the Sacklers. The peculiar, or the unusual majority of the court ruled as a matter of the meaning of the bankruptcy statute.

There's a relatively technical argument about the particular language in the statute, that the bankruptcy court doesn't have the power to release the Sacklers. Now, the majority opinion here is written by Neil Gorsuch, and Gorsuch often has a penchant for the little guy, or the little person. Reading the opinion, there is a real sense of, if not outrage, then deep discomfort that the Sacklers are getting away so easily from their potential liability.

The other side of the coin is that if the Sacklers are subject to litigation, what is going to happen is a rush to the courthouse, where the first few people to obtain a victory against the Sacklers are going to get large judgments, but then those judgments are going to quickly drive the Sacklers to bankruptcy, or it's going to deplete their funds. What this settlement is doing, is preventing a rush to the courthouse with respect to the Sacklers, that means that some, but not all, victims of the opioid crisis will benefit.

I think that the majority here is really thinking about this as a big guy versus little guy case. The centers here are thinking of this not as a matter of justice or of power, but as a matter of judicial administration. How do we prevent a rush to the courthouse? How do we manage a fair distribution under circumstances in which not everyone will get what is due to them?

Brian Lehrer: We're just about out of time. We're going to skip the one other decision that came down today, having to do with the Securities and Exchange Commission, so that I can ask you this. One of the bigger pieces of news to come out of the court today is that they will not get to all the remaining opinions tomorrow, which means, I'm sorry to tell you, you will have to come back and be with us again next week. How rare is this, that they've had to go into July?

We always think, even though there's no law or rule, that they end at the end of June. We think of the end of June as the time that they almost always do end. We're expecting, still, the presidential immunity ruling, the so-called Fischer January 6th obstruction case, which also affects Trump and hundreds of people charged in conjunction with January 6th, the sweeping Chevron doctrine cases, regarding whether courts can review federal agency rules. When can they get this all done in June?

Aziz Huq: It is relatively rare for the court's term to push into July. I would anticipate that the rulings will be early, not late next week. It is, I think, again, worth stressing that the presidential immunity ruling here is the one decision that has a time sensitivity that the other decisions do not. I think that the delay in the immunity decision is, again, regardless of how that decision comes out, incredibly consequential.

By delaying the decision as much as they have, they have made it more and more difficult to have any proceedings with respect to January 6th, and former President Trump's role in the violence of January 6th play out in a court, which I think is-- again, it speaks to the discretionary decisions of the court, about timing, about which suits happen when, about when to delay the resolution of a particularly hard issue.

All of these discretionary timing decisions, or many of them, are incredibly consequential, and they are inevitably political, and yet, they receive, I think, insufficient attention from the public, and certainly from my fellow legal scholars.

Brian Lehrer: There we leave it with University of Chicago law professor, Aziz Huq, also the author of the forthcoming book, The Rule of Law: A Very Short Introduction, and the person who will be a forthcoming guest on this show next week, obviously, with those cases still to be decided. Professor Huq, as always, thanks a lot.

Aziz Huq: Thanks, Brian.

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