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  • Writer's pictureThe Law Office of Dailey & Pratt

Opinion Season Begins in Earnest at the United States Supreme Court

After a historically slow year in terms of issuing opinions, oral argument season has ended and Court-watching, opinion-anticipation, rank-speculation season has begun. Rather than focus on a single opinion, this article reviews a handful of the high Court’s decisions in May 2023, a selection based entirely on the author’s personal interests and capability of explaining.


National Pork Producers Council v. Ross addresses everyone’s favorite topic: the Dormant Commerce Clause. That is the theory that there are certain kinds of state laws that so burden interstate commerce, they offend the Constitution. California passed a law regulating the in-state sale of eggs, pork, and veal products, which forbade the sale of pork from cruelly treated animals. National pork producers, not wanting to have to comply, sued. And they lost – the district court dismissed the complaint. The intermediate appellate court and the Supreme Court affirmed. The opinion is as dense as an overcooked porkchop, but the bottom line is that the Constitution does not prevent California from requiring humane treatment of animals. Unusual, here, is the the fact that the Court took this case at all, given that it overwhelmingly agreed with the lower courts. But I’m sure someone who knows more about the Dormant Commerce Clause than I do (which, honestly, is basically anyone) can educate me.


Twitter, Inc. v. Taamneh and Gonzalez v. Google LLC are cases that address the liability of social media platforms for bad actors using those platforms. Both cases, under different legal theories, alleged that Twitter and Google (through YouTube) aided and abetted terrorists. At the core of these cases, and codified in federal law, is the principle that platforms are not to be held liable for the bad acts of their users. These cases challenged that principle. During oral argument, Justice Kagan raised a good point about who decides these issues: “These [Supreme Court Justices] are not, like, the nine greatest experts on the internet.” The justices appeared to agree and were wary of issuing a ruling that would radically change how internet platforms work, denying the plaintiffs’ claim in the Twitter case and remanding the Google case in light of the Twitter opinion. Expect more on this issue to come, though there appears to be action in statehouses and Congress as well as the courts on this, so keep an eye out for shifting law here.


Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith concerns a Warhol print of a photograph of Prince, the iconic musician. The issue was whether Warhol’s modification of the photograph was “fair use,” such that Warhol did not need to pay the photographer or face a copyright infringement claim. In a 7-2 opinion, with Justice Sotomayor writing for the majority, the high Court disagreed with Warhol’s position and determined the derivative work was not “fair use.” Prince and Warhol fans will enjoy this opinion and the dissent, in particular, which contain examples of the photographs and art at issue. One unusual note here: Justice Kagan pulls no punches against her usual ideological counterpart, Justice Sotomayor. In one particularly sharp footnote, she writes, in part:

I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

Sick burn, your honor.


Tyler v. Hennepin County addresses an unusual situation: a party owed a tax debt of $15,000 (consisting mostly of late fees), so the county seized her house and sold it for $40,000. The county pocketed the $25,000 difference and provided no easy way (indeed, it appears no way at all short of a lawsuit) for the homeowner to ask for her money back. The Supreme Court decided this constituted a “taking” subject to the Due Process Clause. A couple of unusual notes about this opinion: one, it’s unusual to see a case over $25,000 make it to the Supreme Court. Legal fees just for filing a petition for certiorari in a private civil case can cost more than that. Second is the concurrence written by Justice Gorsuch and joined by Justice Jackson (hardly ideologically aligned, as a general matter) who both would have expanded further the plaintiff’s theories of recovery.


Finally is Sackett v. EPA. I’m going to do what all humble authors do and cite myself by suggesting that you read my previous column in this publication about this case, as it describes the facts and the stakes, here. The opinion narrowed the Clean Water Act to allow the EPA to regulate only those wetlands with a surface connection to waters otherwise covered by the Act. The unusual note about this opinion is that, even though it is a unanimous opinion in the judgment, it is actually a 5-4 opinion on the relevant reasoning, with Justice Kavanaugh joining the Court’s three Democrat-appointed Justices, who would have allowed the EPA broader authority under the Act to regulate wetlands.


More to come this year. Stay tuned

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