Minimum Competence - Daily Legal News Podcast
Minimum Competence
Weds 10/11 - SCOTUS Declines to Take up GOP Issues, a Dissent Is Formatted as a Majority Opinion, Chevron Doctrine May Not Have Long and SBF Trial Rolls On
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Weds 10/11 - SCOTUS Declines to Take up GOP Issues, a Dissent Is Formatted as a Majority Opinion, Chevron Doctrine May Not Have Long and SBF Trial Rolls On
Today we have SCOTUS declining to take up a pair of GOP-led issues, a dissent is formatted as a majority opinion, Chevron Doctrine may not have long to live, and the trial of SBF rolls on.
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A pencil sketch of a baby as a Supreme Court Justice.

On this day in legal history, October 11, 1872, Chief Justice Harlan Stone was born – but he wasn’t born the Chief Justice. He was appointed much later when he was an adult. 

Harlan Fiske Stone was an American jurist who served as an Associate Justice of the U.S. Supreme Court from 1925 to 1941 and then as the 12th Chief Justice of the United States from 1941 until his death in 1946. Born on October 11, 1872, in Chesterfield, New Hampshire, Stone was initially a law professor and later the dean at Columbia Law School. He was appointed by President Calvin Coolidge to the Supreme Court and was later elevated to Chief Justice by Franklin D. Roosevelt.

One of Stone's significant contributions to American jurisprudence came in the case of International Shoe Co. v. Washington (1945). In this landmark decision, the mere name of which gives anyone who attended law school hives, Stone formulated the "minimum contacts" test, which has become a cornerstone in the area of personal jurisdiction in civil cases. The ruling clarified the circumstances under which an out-of-state corporation could be subject to the jurisdiction of local courts, thereby modernizing jurisdictional rules to fit a growing national economy.

Stone is perhaps best known for his "Footnote Four" in the landmark case of United States v. Carolene Products Co. (1938), which laid the groundwork for the modern tiers of judicial scrutiny and the protection of minority rights. He also authored the majority opinion in the case of United States v. Darby Lumber Co. (1941), which upheld the Fair Labor Standards Act and confirmed Congress's power to regulate labor conditions.

Another case that drew significant attention during Stone's tenure was Korematsu v. United States (1944). Although Stone did not write the majority opinion, he was part of the court that upheld the internment of Japanese Americans during World War II. This decision has been widely criticized for its stance on civil liberties and is often cited as a low point in the Court's history. Stone's own views on the case have been the subject of much scholarly debate, given his generally liberal leanings on civil rights issues.

Stone was known for his judicial integrity and liberal jurisprudence, often siding with Justices Louis Brandeis and Benjamin Cardozo on progressive interpretations of the Constitution. His tenure as Chief Justice was marked by a number of key decisions that expanded civil liberties and federal power, shaping American constitutional law for generations to come.


The U.S. Supreme Court has declined to hear an appeal from 12 Republican-led states challenging the Biden administration's estimates for the social cost of greenhouse gas emissions. The high court left in place a federal appeals court decision, stating that the states, led by Missouri, lacked the legal standing to sue as they hadn't suffered a concrete injury. The Biden administration's estimates are intended to guide federal agencies in assessing the climate impact of various projects and in formulating new regulations. These estimates could influence a wide range of sectors, including oil and gas, agriculture, and construction. The decision follows a previous Supreme Court action that blocked an attempt to reinstate former President Trump's less stringent cost-estimation policy.

Supreme Court Rejects GOP-Led States on Biden Climate Estimates


The U.S. Supreme Court has chosen not to review the Food and Drug Administration's (FDA) decision to reject Avail Vapor's application for marketing flavored e-cigarettes. Avail Vapor had argued that the FDA altered its application process for new tobacco products at the last minute, leading to a 99% rejection rate for e-cigarette applications. The U.S. Court of Appeals for the Fourth Circuit had previously sided with the FDA, stating that Avail failed to demonstrate that its products offered benefits to adults that outweighed the risks to young people. Avail contends that many adult smokers use e-cigarettes as a quitting aid. 

FDA Win on Flavored E-Cigarettes Won’t Be Undone by Justices


In an unusual legal move, Judge Jerry E. Smith of the US Court of Appeals for the Fifth Circuit added what he called the "opinion that should have been issued" to his dissent in a death penalty case. The majority decision had maintained a pause on a Texas man's scheduled execution, a decision Smith labeled as "grave error." Instead of elaborating on his dissent, Smith attached an opinion styled as a majority ruling, even including the names of the other two judges on the panel. Texas prosecutors later cited Smith's opinion in their request to the Supreme Court to proceed with the execution, which was subsequently granted.

Legal experts have noted that this approach is atypical. Tad Bartlett, an attorney who has reviewed all of the Fifth Circuit's decisions over the past three years, said he had never seen a dissenting opinion formatted this way. He speculated that Smith's opinion might have initially been a draft that became a dissent when it was clear he didn't have the majority support. Given the expedited nature of death penalty cases, Smith may have retained the original formatting to save time.

The majority ruling indicated that another judge on the panel, Judge James E. Graves Jr., would issue his own concurring opinion, which was later included in an amended majority opinion. Stacy Rogers Sharp, an adjunct professor at the University of Texas at Austin School of Law, warned that Smith's unusual approach could blur the lines between what is or is not the law, potentially undermining the majority opinion.

Fifth Circuit Judge Adds Alternate Majority Opinion to Dissent (2)


Legal experts predict that the U.S. Supreme Court may narrow or even overturn the Chevron Doctrine, a precedent that has significantly shaped the modern administrative state. The doctrine, established in Chevron v. Natural Resources Defense Council, allows courts to defer to federal agencies' interpretations of ambiguous statutes. Bertrall Ross, a law professor, suggests that the Court is also likely to use the major questions and non-delegation doctrines to further limit agency power. A ruling that diminishes Chevron deference would require courts to interpret statutes more frequently and could create additional legislative work for Congress.

Professor Allison Orr Larsen believes that the Court may limit Chevron deference to cases involving "genuine ambiguities" in statutory text. Ross adds that Congress might have to revisit statutes regularly if agencies can't resolve ambiguities. He also notes that the Court's recent decisions indicate a preference for major political issues to be handled by Congress rather than agencies. Meaghan VerGow, a legal partner, points out that another case, SEC v. Jarkesy, raises questions about the president's ability to remove administrative law judges, which could potentially create due process issues.

Avid fans of Minimum Competence will remember we did a special Max Min episode on both Chevron Deference and the Major Questions Doctrine

Expect Narrowing of Chevron Doctrine, High Court Watchers Say


The fraud trial of Sam Bankman-Fried, related to the collapse of his FTX cryptocurrency exchange, is set to continue with further testimony from Caroline Ellison, a key witness and former co-head of Bankman-Fried's hedge fund, Alameda Research. Ellison has already testified that she was part of a multi-billion-dollar conspiracy led by Bankman-Fried to defraud FTX customers, investors, and lenders. She is among three former insiders who have pleaded guilty to fraud and are cooperating with prosecutors. Ellison revealed that the hedge fund used about $10 billion in FTX customer funds to repay debts and make investments.

She also stated that Bankman-Fried, who is her former boss and occasional romantic partner, was indifferent to the risks associated with Alameda's lending and investment strategies. Prosecutors allege that Bankman-Fried misused billions in customer funds to support Alameda, purchase real estate, and donate over $100 million to U.S. political campaigns. Bankman-Fried has pleaded not guilty to the charges, arguing that while he made mistakes, he did not intend to steal funds.

In his opening statement, defense lawyer Mark Cohen urged jurors to question the credibility of cooperating witnesses like Ellison, suggesting they might be reinterpreting past decisions to appear more nefarious. Gary Wang, FTX's former technology chief, also testified that Bankman-Fried falsely claimed FTX was stable as it faced a surge in withdrawal demands. The trial, which could last up to six weeks, is also expected to feature testimony from another cooperating witness, former FTX engineering chief Nishad Singh.

Sam Bankman-Fried's trial to resume with more testimony from Caroline Ellison | Reuters

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Minimum Competence - Daily Legal News Podcast

Minimum Competence

The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at www.minimumcomp.com.

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