Instant Analysis of the TikTok Oral Argument

A few moments ago, the Supreme Court wrapped oral argument in the TikTok case. It stretched nearly three hours, but could have easily been finished in one.

I do not think the Court can settle this matter one way or another in the next nine days. There are simply too many issues. Let me start with perhaps the most relevant question asked at the end: Justice Alito asked whether the Court could grant an administrative stay, that did not turn on the likelihood of success on the merits. That is precisely what I proposed last week. Solicitor General Prelogar groused, but would not say the Court lacked the power to issue such an administrative stay. And that’s all Alito needed to hear.

Justice Barrett and a few other members asked about President Trump’s brief. I know that elites widely ridiculed it, but Sauer’s submission was effective for precisely the reason I suggested: it gives the Court an out to not have to decide this case that could set a sweeping precedent. And that ties in directly with the purpose of the administrative stay.

On the merits, there are four votes clearly in support of the government. Chief Justice Roberts is squarely in support of the law. He asked many questions about the ability of China to inspect data on American devices. I told you this threat was on his mind in the year-end report. Justice Kavanaugh also asked several question along similar lines about national security. Justice Thomas did not see at all how TikTok has any speech interest here. And Justice Alito did now show any inclination that TikTok could prevail.

Justice Gorsuch was wearing his libertarian hat today, and was really worried about the precedent that could be set. He also asked a lot of factual questions, which suggests he would be uncomfortable allowing the law to go into effect. Justice Barrett seemed convinced there is some Firs Amendment interest at play, but couldn’t settle on the appropriate standard of scrutiny. She kept saying “Let’s assume I agree with you the First Amendment applies, what is the right test…” When ACB asks the lawyer to assume something, that means it is what she thinks. I think Barrett is finding the right way to rule against TikTok but isn’t sure.

Justice Kagan seemed a bit fluid. I’ve written before that her primary goal is to influence Justice Barrett. At one point, Justice Kagan tried to suggest what Justice Barrett was thinking, then stopped herself, and told us what she is thinking. I think she forgot which role she was playing.

Justice Sotomayor seemed squarely in support of TikTok, but wasn’t quite sure how to cobble together a majority. And Justice Jackson was a bit all over the place.

Anyway, bottom line, I think the Court issues some sort of administrative stay (really an administrative injunction). All of the professors who scoffed at my proposal and said it was not proper, or inconsistent with the All Writs Act, will have to respond accordingly. Then let’s see what kind of deal Trump can work out. Maybe China can trade TikTok for the Panama Canal.

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