December 10, 2025 — SCOTUS AM

Bryan covered the contempt phase of J.G.G. in detail. The court had ordered the government to explain what steps had been taken to comply with its prior orders regarding the deported Venezuelans. Secretary Noem filed a declaration. White House counsel Blanche filed a declaration. DOJ's Mazzara filed a declaration. The court reviewed all three and found them inadequate — they didn't answer the key questions about what the government actually did, what authority it claimed, and why the men remained in CECOT despite court orders. The court then ordered a government official named Reveni to appear in person at contempt hearings scheduled for December 15-16. Bryan explained the executive privilege dimension: the government had argued some of the requested information was protected by executive privilege. The court indicated that privilege does not extend to shielding contempt of court — the president cannot order non-compliance with a court order and then claim privilege to avoid accountability for that non-compliance.

The Eighth Amendment prohibits executing intellectually disabled individuals — that's the holding of Atkins v. Virginia (2002). But Atkins left implementation to the states, and states have been creative in how they define the 70 IQ threshold. Hamm had been tested five times. Every single test came back between 73 and 78. Alabama's argument: IQ tests have a margin of error of approximately plus or minus three to five points, so a score of 73 could represent a "true" IQ of 70 or below. Bryan used this to explain what the margin of error argument actually does: rather than providing protection for borderline cases, Alabama was using it as an offensive tool — arguing that a score above 70 might actually be below 70 and therefore warrant execution. Bryan noted the circular nature: the same margin-of-error logic that could protect someone with a score of 67 (might actually be 70) was being used to potentially execute someone with a score of 73 (might actually be 70). The SCOTUS case would address whether states can use statistical artifacts of IQ testing to get around Atkins's categorical ban.

Bryan used FS Credit v. Saba to explain the private-right-of-action doctrine — one of the most consequential shifts in federal statutory law over the last half century. The Investment Company Act of 1940 includes Section 47B, which says contracts that violate the Act are void and unenforceable. The question is whether an individual who loses money on such a contract can sue in court to have it declared void and recover damages — or whether Section 47B merely creates a defense (you can say the contract is void when someone sues you) rather than an affirmative cause of action (you can go to court proactively). Bryan traced the history: in Transamerica Mortgage Advisors, Inc. v. Lewis (1979), the Supreme Court first began limiting implied private rights of action — before that, courts had freely found that when a statute created a right, individuals could sue to enforce it. After Transamerica, the Court required express authorization from Congress. Today's Court is even more skeptical: if Congress didn't explicitly create a right to sue, the Court will almost never infer one. Bryan used FS Credit v. Saba to show what this means practically: a statutory provision that literally says a contract is void may not give individual investors any way to enforce that voiding in court.