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Supreme Court's TikTok dance: Justices to weigh in on ban, with Trump opposed

President-elect Trump's highly unusual intervention in the Supreme Court's TikTok case reads almost like a guy asking for a favor from an institution that still runs on formality.

The big picture: Trump's last-minute effort to give TikTok a stay of execution is one more twist in a case that already scrambles every ideological dividing line.


Driving the news: The court is set to hear oral arguments Friday over TikTok's future. A new, overwhelmingly bipartisan law requires the app's Chinese parent company, ByteDance, to either sell TikTok by Jan. 19 or shut it down within the U.S.

  • There's no simple partisan division on this one. Republicans in Congress supported the law, which President Biden signed, and GOP attorneys general have weighed in to help Biden defend the law in court.
  • Trump previously advocated for a ban, then flip-flopped. He filed an amicus brief on Dec. 27 urging the court to pause the law.
  • The actual parties in the TikTok case largely ignored Trump's filing, which is mostly about Trump, not the law.
  • Whether the justices give it more credence could say a lot about the overall direction of a conservative court that has handed Trump some enormous victories.

What they're saying: ByteDance and a group of TikTok users argue that the law violates the First Amendment, because it would shutter one of the country's most popular platforms for personal expression.

  • The Biden administration says the ban is rooted in national security concerns, and doesn't target any specific speech on TikTok. A new owner could still allow all the same content, it argues, so there's no First Amendment issue.

Between the lines: The conservative Supreme Court usually (but not always) sides with people making First Amendment claims. And it usually (but not always) sides with the federal government when the government says there's a national-security issue.

  • In this case, it won't be able to do both.

And then there's Trump. He has asked the justices not to let the law go into effect as scheduled on Jan. 19 โ€” but his argument is not rooted in any of the First Amendment or national-security concerns at issue in the case. It takes no position on those issues.

  • "President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government," his brief says.
  • The argument is essentially that the court should ignore the deadline Congress and the president decided on, and defer instead to Trump's force of personality.
  • "President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok," his brief says, arguing that he is uniquely well positioned to solve a social-media problem.

That may be a stretch, even for a court that has sided with Trump on any number of high-stakes issues.

  • He is, for now, still just an ordinary citizen with no formal role in this dispute, and there is a statutory deadline that was intentionally set before the next president would be sworn in.
  • But it's also a hard case, legally and politically, and any avenue that lets the justices avoid striking down a bipartisan law or banning a wildly popular app might have some appeal.

Supreme Court seems likely to uphold ban on gender-affirming care

The Supreme Court seemed inclined Wednesday to uphold laws that ban gender-affirming care for transgender youth.

The big picture: Medical authorities in the U.S. largely agree that treatments like puberty blockers and hormone therapy are safe, but the court's conservative justices indicated they do not want to overrule state laws banning them for children.


Driving the news: The court heard oral arguments Wednesday over a Tennessee law that bans gender-affirming care for minors. Roughly half the states have similar laws on the books.

  • The central question before the court is whether Tennessee is simply regulating the practice of medicine or discriminating on the basis of sex. If it's the latter, the state would have to clear a much higher legal bar to defend its law.

Three key conservative votes โ€” Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh โ€” all seemed to come down on Tennessee's side.

  • Kavanaugh cited medical disagreements and tight regulations in Europe, arguing that the science of gender-affirming care is unsettled and that the court should not "constitutional-ize" the issue.
  • "For us to come in and choose one side of that, knowing that either way people are going to be harmed โ€” there's no perfect way out," he said.
  • Two other conservative justices, Clarence Thomas and Samuel Alito, are very unlikely to oppose the bans.

The intrigue: Just four years ago, the court ruled that firing trans workers because they are trans is a form of illegal sex discrimination. Advocates argued that the same logic should apply to health care.

  • Justice Neil Gorsuch, a Trump appointee, wrote the majority opinion in that case, joined by Roberts and the court's liberals.
  • Gorsuch did not ask any questions Wednesday, so there's no way to know whether he thinks the two cases are aligned.
  • Even if he is inclined to side with the families challenging Tennessee's law, he would need to bring along at least one other conservative justice to achieve a majority.

Yes, but: Oral arguments are an indication of how the justices are thinking about a case, not a surefire prediction of how they'll ultimately rule.

Supreme Court's big trans rights case could come down to Gorsuch

President-elect Trump vowed to limit access to gender-affirming care, especially for children. But judges he appointed may have laid the groundwork to save it.

The big picture: The first major post-election referendum on trans health care is happening Wednesday at the Supreme Court โ€” and the issue has transcended the court's usual ideological divisions before.


  • The Court is hearing arguments this morning over a Tennessee law that bans puberty blockers, hormone therapy and surgery for transgender minors.
  • The justices' decision will also affect the 20-plus states with similar laws on the books, and it'll inform how the courts handle future cases on trans rights.

What we're watching: Trans people won a surprising victory in 2020, when the court โ€” in a decision by Justice Neil Gorsuch, a Trump appointee โ€” ruled that employers cannot fire workers because they're trans.

  • The big question today is whether the logic of that decision should also apply to Tennessee's ban on gender-affirming care.

How it works: In the 2020 case, Gorsuch wrote that firing someone after a gender transition is discrimination on the basis of sex.

  • "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," he wrote.
  • Chief Justice John Roberts joined that decision, along with the court's liberal members.
  • The families challenging Tennessee's law say the same thing is happening here โ€” that the state is singling people out based on their gender identity.
  • The first judge to hear the case โ€” also a Trump appointee โ€” agreed, ruling that the law is probably unconstitutional.

The other side: Tennessee argues that it's simply regulating medicine, based on patients' age and what the treatment is for, which falls well within states' power.

  • Both boys and girls can be denied these treatments, and both boys and girls can access them if it's for another use, the state says โ€” so the regulation doesn't draw a line based on sex.

Why it matters: If the Supreme Court decides that Tennessee law counts as sex-based discrimination, the state will have to clear a much higher bar to defend it.

  • If the justices say it's simply a medical regulation, it's much more likely to survive this legal challenge.

Between the lines: There are some key differences between the 2020 case and this one.

  • The earlier case hinged on a line in federal law that explicitly bans employment discrimination on the basis of sex.
  • Gorsuch cast his ruling as an exercise in textualism โ€” the statute prevents sex discrimination, and if you fire someone just because they changed their sex, that's sex discrimination.
  • The Tennessee case doesn't lend itself to the same kind of textual analysis, leaving plenty of room for the conservatives to carve out a new, more restrictive interpretation if they want to.

Even so, trans rights are 1-0 in major Supreme Court cases, and if there's a roadmap for another victory this time, it's one that Gorsuch drew up.

Go deeper: Trump win emboldens GOP's anti-trans blitz

How prosecuting Trump backfired

All the time and effort poured into prosecuting Donald Trump only ended up putting him โ€” and every future president โ€” further above the law.

The big picture: Efforts to prosecute Trump for his first-term conduct are officially on ice, and he's entering his second term with the knowledge that it'll be extraordinarily difficult for anyone to prosecute him for anything he does this time around.


Driving the news: Special counsel Jack Smith moved Monday to drop two cases against Trump, for subverting the results of the 2020 election and mishandling classified documents.

  • Sentencing for his conviction on 34 fraud-related charges in his New York hush money case was postponed indefinitely, and the case may be dismissed.
  • The election interference case in Georgia is technically still in limbo, but don't hold your breath.

By far the most significant outcome from all of those charges was the Supreme Court's ruling that former presidents are immune from prosecution for their "official acts."

  • Because the Justice Department won't continue trying to prosecute Trump while he's president, the courts won't fill in the details of what constitutes an "official act" until the next time a former president is indicted. That could be a while.
  • But the Supreme Court's initial definition was broad enough to give Trump, and the presidents who come after him, a whole lot of confidence that hardly anything they do while in office will land them in prison later.

What they're saying: The Justice Department should have moved faster to begin prosecuting Trump once President Biden took office, some Democrats and liberal legal experts argue.

  • Smith wasn't appointed until late 2022, and delivered his first indictment just over 6 months later.
  • If that process had moved faster, they say, Smith would have had time to keep litigating the definition of an "official act," and might have gotten some part of his Jan. 6 indictment to stick.

The bottom line: Trump was the first former president convicted of a felony. But after four trials and dozens of charges, he returns to office on firmer legal footing than ever.

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