Some humor was found in the fact that Justice Sotomayor, for the second day in a row, forget to unmute her phone when it was her turn to ask questions today in US AID v. Alliance for Open Society International. But that gaffe was trivial compared to the confusions embedded in her questions.
Her first question (emphasis added):
Mr. Michel, the long and the short of this is that a domestic agency that does not want to adopt a policy of being opposed to abortion but who is willing to not support it in a program, they can’t receive funds unless they affiliate with someone who will make the statement for them, correct? [Transcript, pp. 21-22.]
Uh, no. For starters, the case has nothing to do with abortion. It concerns, rather, prostitution and sex trafficking—a requirement that a recipient of federal funds to fight HIV/AIDS overseas have a policy explicitly opposing prostitution and sex trafficking.
Second, the case doesn’t involve “domestic” agencies. The challenged restriction, in the aftermath of the Court’s 2013 decision involving the same parties, doesn’t apply to domestic agencies. It applies only to foreign entities. Mr. Michel made that clear in his response, but Sotomayor repeated the confusion in her very next question (transcript, p. 22):
JUSTICE SOTOMAYOR: But the domestic corporation who doesn’t want to speak the government’s message but does want to do the program can’t, unless it finds a affiliate who will speak the government’s message?
MICHEL: Well, with respect, Justice Sotomayor, that — I think that was the issue in the case last time. But –
JUSTICE SOTOMAYOR: Exactly.
MICHEL: — that’s no longer true. Yeah.
I love that “Exactly”—yeah, she understood that all along, despite her two questions asserting the opposite.
And then came this further confusion (transcript, pp. 22-23):
JUSTICE SOTOMAYOR: Exactly. And the last time when you sought for cert before us, you said it was a facial — it was tantamount or amounting to a facial challenge. If we read our prior decision as basically facially addressing the restriction, do you win?
MICHEL: I think if you read it as truly facially invalidating the statute, then, no, we couldn’t win.