Had SCOTUS simply denied the emergency-docket application, things would have had the chance to proceed normally, and TikTok would have been held to account.
Had SCOTUS simply denied the emergency-docket application, things would have had the chance to proceed normally, and TikTok would have been held to account.
T ikTok seems to be safe and with it the Chinese Communist Party’s grip on American data and information consumption. It didn’t have to be this way.
Last spring, Congress passed and the president signed a law that required TikTok to be divested of its Chinese ownership by January 19, 2025, in order to continue operating in the United States. When TikTok predictably sued, a unanimous panel of the D.C. Circuit held that the law was constitutional, and the divesture requirement could go into effect a little over a month later.
When TikTok asked the Supreme Court to enjoin the enforcement of the act, I represented Senator Mitch McConnell, who argued that the Court should quickly deny the application. TikTok was clearly trying to move the divesture date into the next administration, which, company officials hoped, would be more amenable to their unprecedented lobbying campaign than the Biden administration was. McConnell urged the Court to treat the application like a dilatory death penalty appeal and simply reject it. The Court did not, and — as McConnell’s brief warned it might — TikTok was able to move its political appeal into a far more accommodating Trump administration.
Had the Court simply denied the application, TikTok and the Biden administration would have had almost a month to either move toward divesture or enforcement. It seems impossible to imagine the law not operating as intended under those circumstances, especially given the stated intent of the Biden Department of Justice to enforce the law. Instead the Court set the case for “rocket docket” expedited consideration with argument on January 10, 2025 — a mere nine days before the divesture date. It upheld the decision in an unsigned per curiam — unanimous — opinion on January 17.
With final legal clarity coming mere days before divesture, Joe Biden washed his hands of the issue and said he wouldn’t enforce the law he lobbied for and signed, leaving it to Trump. (He did this even though his Department of Justice was in court days before insisting on the importance of Biden’s being able to enforce this deadline.) Trump, in turn, declared that he wouldn’t enforce the law either, instead announcing some sort of speculative CCP–United States joint venture to circulate videos of cats and teenagers dancing. He followed this up with an executive order purporting to instruct the Justice Department not to enforce the law for 75 days — all while China hawks like Senators Tom Cotton and Pete Ricketts warned app purveyors to follow the law as enacted, not as enforced.
But the real failure here was with the Supreme Court. Had the justices simply denied the emergency-docket application, things would have had the chance to proceed in the normal course, and TikTok would have been held to account. But the Court has grown hesitant to make substantive decisions on the emergency docket — given the sinister epithet “shadow” docket by academics. Even though many cases percolating through the lower courts call out for rapid intervention by the Supreme Court — hence the “emergency” part — the Court’s use of this procedural mechanism has resulted in withering criticism at the hands of liberal law professors and activists, and the Court has grown increasingly gun-shy about using it.
The clearest example of this came in the Texas heartbeat act litigation in 2021, when the Court denied the DOJ’s emergency petition but set up a “rocket docket” merits adjudication. That is, instead of simply deciding the petition on the emergency docket, the Supreme Court set up a mini, hyper-expedited full consideration of the appeal on the merits. A process that could normally take months or years was condensed to mere weeks. Yet, for all that, no one remembers the outcome other than that Texas won.
A year later the Court did the same thing in the vaccine mandate case, NFIB v. Department of Labor, this time granting the requested relief in a similarly unmemorable unsigned opinion that stayed the mandate while the Sixth Circuit considered the case.
Fast cases make bad law, and you’d be hard-pressed to find anyone who thinks those experiments in a rocket docket were successful. It’s therefore baffling that the Court would do it again in TikTok, where — as before — the result was a quickly produced per curiam opinion that doesn’t break new legal ground. In all these cases — liberal law professors aside — the emergency docket would have reached similar legal outcomes in a more efficient way.
The TikTok case is especially egregious because this simple question of federal courts procedure was the likely difference, in and of itself, between a duly enacted law going into effect and not.
Supreme Court justices have life tenure for a reason. The “judicial power” is entrusted wholly to them and not to the liberal commentariat. They should learn from this tragic example and stick to their guns: grant worthy applications on the emergency docket and deny unworthy ones. Let the chips fall where they may and ignore the bleating of the Georgetown Law faculty.