SCOTUS AM

October 7, 2025 — SCOTUS AM

Oct 7, 2025

1007 AM TT

Loomer v. Meta 25-19

SCOTUS released its end-of-summer cert denial list. The headline: Ghislaine Maxwell's bid to overturn her conviction was denied. The less-noted story: Laura Loomer's lawsuit against Facebook — which alleged a conspiracy between Zuckerberg, a Prokhor and Gamble executive, and Hunter Biden's laptop to keep her out of Congress — was also denied. 49 pages of conspiracy. Flat out denied.

At the start of the fall term, SCOTUS issued a batch of cert denials covering the entire summer's backlog. The widely reported denial was Ghislaine Maxwell's attempt to overturn her conviction. Bryan flagged a less-noted companion: Laura Loomer's case against Meta/Facebook, which she alleged had deliberately sabotaged her congressional campaign through a conspiracy involving Mark Zuckerberg, Prokhor and Gamble, and Hunter Biden's laptop, among other elements. Loomer filed a 49-page petition for cert. It was denied. Bryan: "Her case will be remembered for the company it kept" — alongside Maxwell, Project Veritas, and Purdue Pharma, all denied the same day. No substantive legal issue ruled on; this is a procedural denial.

Certiorari

Constitutional question: None substantive from this denial. The underlying claim would have involved First Amendment and/or Section 230 issues; none were reached.

US. v. Garcia 25-cr-00115

While everyone was focused on the civil Abrego Garcia case — where the judge had a very short conversation with DOJ attorneys who claimed the government shutdown hamstrung them — something potentially more significant was happening in the criminal case in Tennessee. The judge there just built a near-airtight case for vindictive prosecution and handed the burden of proof to the government. Bryan's read: the prosecutor in that courtroom needs to start fighting for his career.

The news focus on October 7 was on Kilmar Abrego Garcia's civil case, where a federal judge ordered DOJ attorneys to stop using the government shutdown as an excuse and appear in court Friday with actual information. But Bryan flagged the Tennessee criminal case as the more interesting development. Garcia had filed a motion to dismiss on vindictive prosecution grounds — the claim that the prosecution was initiated to punish him for exercising constitutional rights (specifically, resisting removal). The judge released what appeared to be a discovery order but was actually structured as a near-complete proof of vindictive prosecution. The judge walked through two standards: (1) actual vindictiveness — the judge found the standard was met; (2) presumptive vindictiveness (lower burden) — the judge found this was clearly met. Once either standard is established, the burden flips to the government to produce evidence that the prosecution was not vindictive. The judge stated explicitly: if the government cannot provide that evidence, "he cannot proceed further with this case." Bryan: as an attorney, having a judge prove you prosecuted vindictively is roughly all a state bar needs to yank your license. The prosecutor has "nowhere to go" — there may simply be no evidence to the contrary because the case was brought without any. Bryan connected it to broader deterrence: a prosecutor in Virginia was being asked to bring similar baseless charges against Letitia James; courts were having difficulty finding a prosecutor for the Comey case. A career-ending dismissal for vindictive prosecution has deterrent value.

Fifth Amendment due processvindictive prosecution doctrineburden shifting

Constitutional question: Fifth Amendment due process as a structural constraint on prosecutorial power. The doctrine exists because the power to initiate criminal prosecution is among the most coercive tools the government possesses; when that power is used to punish lawful exercise of constitutional rights rather than to vindicate the law, it converts the criminal process into an instrument of retaliation. The practical implication Bryan flags — professional bar consequences for the individual prosecutor — is also a structural check: if vindictive prosecution leads to license discipline, the personal incentive to bring baseless retaliatory charges diminishes.

Chiles v. Salazar 24-539

The Supreme Court heard oral arguments today on whether states can ban licensed therapists from performing conversion therapy on LGBTQ+ clients. The key question isn't whether conversion therapy is good or bad. It's whether a therapist's words are speech — protected by the First Amendment — or conduct — regulable by the licensing board. Because for a talk therapist, the words are the medicine.

Oral argument day. Bryan spent the prior day reading SCOTUS cases about doctors' First Amendment rights to prepare. The circuit split: the 11th Circuit holds states cannot ban conversion therapy (it's protected professional speech); other circuits hold they can (it's regulable professional conduct). The central precedent is NIFLA v. Becerra (2018), which eliminated "professional speech" as a separate First Amendment category but preserved licensing boards' authority to regulate conduct, including "speech incidental to conduct." Bryan's framework: doctors can be told they can't perform certain procedures (that's conduct); when they're required to inform patients of risks, those words are part of the procedure (speech incidental to conduct, regulable); but for matters outside conduct, doctors still have full First Amendment rights. The conversion therapy problem: a talk therapist's entire practice is words. Is banning what they say banning speech (protected) or banning conduct (regulable)? Plaintiff's argument: it's speech — ban on conversion therapy restricts what the therapist can say. Defendant's argument: it's the equivalent of surgery performed with words — the speech *is* the conduct. If the Court finds it's speech, strict scrutiny analysis applies: has the state proven the law serves its stated purpose (protecting children) in a constitutionally adequate way?

First AmendmentNIFLA (2018)professional speechspeech incidental to conduct

Constitutional question: First Amendment free speech as applied to licensed professionals whose practice consists entirely of verbal communication. The constitutional question is whether the state's power to define the scope of professional licenses (and restrict dangerous or fraudulent practices) can extend to regulating purely verbal therapy when the state's theory is that the words themselves cause harm. Resolving this determines not just conversion therapy but the broader range of verbal therapies and professional speech regulations across healthcare.

MARGOT REVIEW NOTES

Barrett v. US 24-5774

Double jeopardy — the other side of what Bryan covered in the Mangione case. That was about one incident, two sovereigns (state and federal). This is about one incident, one sovereign, two statutes that are really the same statute. Can the government charge someone for both 924(c) and 924(j) when 924(j) literally *requires* a 924(c) conviction to even exist?

Oral argument day. The Blockburger double jeopardy question: when can two statutory charges arising from the same conduct result in consecutive punishments? Bryan walked through the specific statutes: 18 U.S.C. §924(c) punishes committing a crime while using a specified type of weapon; §924(j) punishes being convicted under §924(c) when the victim dies. The "Russian doll" problem: to convict under 924(j), you must first convict under 924(c); every element of 924(c) is nested inside 924(j). The Blockburger rule (Blockburger v. United States) says two statutes can carry consecutive punishment only if each requires proof of at least one element the other doesn't — if they're substantially the same offense, you can only punish once. On its face, since 924(j) includes all the elements of 924(c) plus one more (victim's death), the Blockburger test suggests they're the same offense and consecutive punishment is barred. The complication: an exception exists for cases where Congress clearly intended separate punishment for both statutes. So the Court must also examine whether the legislative history of §924(c) and §924(j) shows Congress intended cumulative punishment.

Fifth Amendment double jeopardyBlockburger v. United States (1932)consecutive sentencinglegislative intent

Constitutional question: The Fifth Amendment's double jeopardy clause prohibits not only successive prosecutions for the same offense but also multiple punishments for the same offense in a single proceeding. Blockburger operationalizes this — it is a constitutional requirement, not just a statutory default. When courts allow consecutive punishment for offenses that share all elements (plus one), they risk converting what is functionally one crime into two punishments. The legislative-intent exception raises the question of how much congressional intent can modify a constitutional guarantee.

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