A busy day at the Supreme Court yesterday, with pages and pages of orders and writings—including one bombshell from Justice Thomas—and an oral argument that saw the return of Justice Ginsburg to the bench for the first time since December. Plus, the mystery surrounding the court's slow-walk of the pending DACA litigation. Today, another argument at the intersection of bankruptcy and trademark law will cap the court's session for the week. Thanks for reading, and contact us anytime at [email protected] and [email protected].

Thomas: Revisit Landmark Defamation Ruling

As soon as Justice Clarence Thomas suggested on Tuesday that New York Times v. Sullivan, a First Amendment landmark, be “reconsidered,” media lawyers and others shuddered.

>> “I felt a lot better yesterday than I do today,” said Ballard Spahr senior counsel Lee Levine, co-author of a book about Times v. Sullivan.

>> “Justice Thomas's opinion … is terrifying,” University of Texas School of Law professor Stephen Vladeck tweeted.

>> ”New York Times v. Sullivan has been the law of the land for over 50 years,” said Dorsey & Whitney media lawyer Steve Wells.

Justice Thomas

Thomas targeted the 1964 precedent in a solo concurring opinion in the court's decision to deny review of McKee v. Cosby. The lower court had invoked Times v. Sullivan to bar Kathrine McKee, who accused comedian Bill Cosby of sexual assaulting her, from recovering damages for alleged defamation. McKee's complaint targeted statements made by a lawyer representing Cosby.

“New York Times and the court's decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote on Tuesday.

The Sullivan decision made it very hard for public figures to sue and collect damages from journalists and others unless the disputed comments were written with “actual malice.” President Donald Trump is the latest official to claim the ruling's high bar has emboldened the media to ruin reputations with abandon.

For decades, though, Times v. Sullivan has been a pillar of First Amendment jurisprudence that the high court leaves alone and most plaintiffs don't challenge. “I can't recall a serious effort to overturn Times v. Sullivan since the Falwell case,” Levine said. He was referring to Hustler Magazine v. Falwell, a 1988 ruling in which conservative Chief Justice William Rehnquist shielded the Sullivan precedent from attack.

One big question: Will the Trump era and the high court's new composition topple the stature of Times v. Sullivan on the current court?

“Every fiber in my body is telling me no,” said Levine. “From where I sit, the vital importance of Sullivan continues.”

Even the late Justice Antonin Scalia, who criticized Times v. Sullivan often, stopped short of calling for its demise, Levine said. And Chief Justice John Roberts Jr. recently described himself as the court's “most aggressive defender” of the First Amendment, though that title does not guarantee he loves Times v. Sullivan.

What about the court's newest justices, Neil Gorsuch and Brett Kavanaugh?

In Von Kahl v. Bureau of National Affairs, a 2017 ruling by the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh embraced the precedent, stating that “defamation cases can hinder … unfettered interchange.”

Gorsuch, for his part, described Times v. Sullivan favorably in Bustos v. A&E Television Networks, a 2011 decision he wrote while on the U.S. Court of Appeals for the Tenth Circuit.

“That no other Justice joined in Justice Thomas's concurrence in McKee is a strong indication that the Court considers this to be settled law,” Dorsey's Wells said with hope.

Not-So-Fast-Track of DACA in the High Court

In early November, U.S. Solicitor General Noel Francisco filed three petitions for cert before judgment to ensure that the Supreme Court would consider this term the challenges to the legality of the Trump administration's plan to wind down the DACA (Deferred Action for Childhood Arrivals) program.

But it is increasingly unlikely the justices will hear the administration's case before the end of June. So what might be happening in these cases?

Some of the urgency lessened when—three days after Francisco filed his petitions—the U.S. Court of Appeals for the Ninth Circuit upheld a district court's preliminary injunction blocking the administration's plan.

But Francisco still pushed for review this term, even waiving the 14-day waiting period for distribution of the petitions to the court so that the justices could examine them at their Jan. 11 conference.

The petitions were distributed for the Jan. 11 conference and again for the Jan. 18 conference, but nothing after that date. And the usual mid-January cutoff for adding cases to the term's argument calendar has passed.

Here are some circumstances—based on our conversations with lawyers following the cases—that could be driving the decision-making process:

• President Trump has said several times he doesn't want to deport DACA recipients even though he thinks the program itself is unlawful. Since he is not in a hurry to deport recipients, the court may not see a great need for speed in resolving the legal questions.

• The preliminary injunction allows authorities to remove any DACA recipient that the government believes is a threat to national security or public safety—potential threats, then, are not a basis for urgent action by the court.

• DACA has been part of recent congressional negotiations involving funding for Trump's border wall. The justices may want to give Congress and the president time to resolve the fate of the DACA recipients before they get involved.

• The same legal questions about the program are pending before the Second, Fourth and D.C. circuits and the justices may want to wait for those decisions.

• The justices could still grant review before the term ends and hear arguments next term. Or the court could grant review and hear arguments whenever it suits the justices.

>>> The three petitions are: Department of Homeland Security v. Regents of the University of California (Covington & Burling partner Robert Long as Regents' counsel; Gibson, Dunn & Crutcher partner Theodore Boutrous for Garcia respondents, and California Deputy Solicitor General Michael Mongan for state respondents.); Nielsen v. Vidal: New York Solicitor General Barbara Underwood, counsel to the state respondents, and Michael Wishnie of the Jerome N. Frank Legal Services Organization for the non-state respondents; and Trump v. NAACP (Jenner & Block partner Lindsay Harrison, is counsel to Princeton, Microsoft and Maria Perales.)

Supreme Court Headlines: What We're Reading

• “Has the Supreme Court Already Decided the Wall Case?” From the report: “There is another recent case that tracks, issue-for-issue and beat-for-beat, the filed and impending litigation challenges to the wall—and Trump won it. That earlier case is the challenge to Trump's travel ban.” [Politico]

• “Roberts Again Sides With Liberal Supreme Court Justices in Disagreeing with Lower Court Interpretations.” From the report: “For the second time in as many weeks, Chief Justice John G. Roberts Jr. has sided with liberal Supreme Court justices to disagree with how lower courts have interpreted Supreme Court precedent.” [The Washington Post] More here from The Texas Tribune.

• “Supreme Court Ruling Means More Information on Mystery Mueller Grand Jury Case May Become Public.” From the report: “The justices, in an unsigned order, granted the administration's request to file redacted copies of briefs filed under seal at an earlier point in a case concerning a mystery company that is fighting a subpoena related to the grand jury. The ruling gives the potential that more information will eventually become public.” [CNN]

• “Kavanaugh, Gorsuch Question Feds' Use of America Invents Act.” Our colleague Scott Graham has the report: “The question in Return Mail is whether the government is a “person” within the meaning of the America Invents Act (AIA), and can therefore attack the validity of patents in covered business method review proceedings at the U.S. Patent and Trademark Office.” [NLJ]

• “Supreme Court Justice Refuses to Block Generic Suboxone Film.” From the report: “U.S. Chief Justice John Roberts cleared the way for Dr. Reddy's Laboratories Ltd. to resume selling a generic version of Indivior Plc's opioid addiction treatment Suboxone Film. Rejecting arguments from Indivior, Roberts left in force a ruling, set to take effect Tuesday, that lets Dr. Reddy's put the generic drug on market.” [Bloomberg]

• “Supreme Court to Rule on Contaminated Groundwater Under Clean Water Act.” From the report: “The Supreme Court agreed Tuesday to decide if contamination of groundwater that seeps into rivers, lakes and oceans violates the Clean Water Act. Dumping pollutants directly into navigable bodies of water is prohibited by the 47-year-old law, but it is less clear about indirect sources.” [USA Today]