DATACENTERS vladeck doj citizen suits xai
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In Hunter v. United States, Justice Kagan held for an 8-1(ish) majority that a defendant’s agreement to give up his right to appeal his sentence—a standard feature of countless plea deals—isn't always the last word. Rather, such an appeal waiver becomes unenforceable when honoring it would produce a “miscarriage of justice,” meaning defendants can in some circumstances challenge a sentencing condition despite having signed away their appeal rights. There were lots of separate concurrences here (and a dissent by Justice Thomas). The upshot is that the justices don’t all agree on how a defendant can establish the circumstances in which an appeal waiver will be unenforceable, but eight of them agree that such a showing is possible.
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Finally, in a case only Federal Courts professors could love, a very unusual 5-4 majority in T.M. v. University of Maryland Medical System Corporation held that the “Rooker-Feldman doctrine” (a previously hyper-narrow rule that bars lower federal courts from hearing lawsuits that are tantamount to appeals of adverse state-court rulings by the party that lost in the rare circumstances in which ordinary preclusion doctrines don’t bar them) applies even when further proceedings in the state court are pending and/or possible. Justice Barrett’s dissent was joined by Chief Justice Roberts, Justice Kagan, and Justice Gorsuch. And I’ll confess to thinking that it has the better of the (nerdy, technical) arguments here.
Beyond those three rulings, the only other action on the merits docket last week came in Monday’s Order List, which included grants of certiorari in three new cases for next term, and two dissents by Justice Alito from denials of certiorari.
The Emergency Docket
There were no full Court rulings on emergency applications last week. But there are a pair of applications pending before the Court in which plaintiffs challenging Texas’s social media age verification law are asking the justices to put back into effect a district court injunction that had blocked a sweeping, new Texas law requiring age verification and parental consent for just about every mobile app (and app store) that’s accessible from anywhere in Texas. The Fifth Circuit had stayed the district court’s (pre-enforcement) injunction pending appeal, and the applicants are asking the justices to vacate that stay. Texas’s response to the applications is due by 4 p.m. (ET) today, so we may well get a ruling sometime this week.
The Week Ahead
Speaking of this week, we expect a regular Order List at 9:30 this morning. And the Court has already announced that it is expecting to take the bench to hand down more rulings in argued cases both tomorrow (Tuesday) and Thursday. We also know, because of what the Court did not say, that Thursday will not be the last hand-down day of the term. Given that there are still ~17 rulings to go, my best bet is that the Court will hold at least two more hand-down sessions after Thursday—probably across some combination of this Friday, next Monday, and next Tuesday. But all we know for now is that (1) we’re getting decisions Tuesday and Thursday; and (2) we’re almost certainly going into early next week before the Court rises for its summer recess.
The One First “Long Read”:
DOJ’s Limitless Arguments in the xAI Case
In trying to think about how to explain the importance of the xAI case, I was struck by how Earthjustice’s Laura Thoms (who used to work for the Department of Justice’s Environmental and Natural Resources Division—“ENRD”) opened her own piece in “The Watershed”:
Imagine living next to a factory that dumps waste into the river behind your house to save on treatment costs. Or a refinery that shuts off its pollution controls because no one is checking. You don’t need to care deeply about environmental laws to know that’s wrong. And you don’t need to be a legal expert to know that if you break the law, there should be consequences.
But the consequences for polluting are vanishing since Trump returned to office. And this week, his administration took an unprecedented step to derail environmental enforcement.
On the surface, the underlying dispute in NAACP v. x.AI Corp. is about gas turbines in northwestern Mississippi—the kind of dispute that tends not to receive national attention. But the legal theory the government is advancing reaches far beyond one (massive) data center and the power plants being built to power it. It is an Article II argument—rooted in the President’s duty to “take Care that the Laws be faithfully executed”—that, taken to its logical limits, would give the executive branch unilateral authority to shut down any citizen suit under any environmental statute, against any defendant, whenever the government decides that non-enforcement better serves its policy goals.
That claim, if accepted, would rewrite the enforcement architecture of the Clean Air Act, the Clean Water Act, RCRA, the Safe Drinking Water Act, and every other statute that contains a citizen-suit provision. It is a change not just in one case or one area of law, but in the basic relationship between the government, private industry, and the communities that have relied on these provisions as a last resort for half a century.