Thread by @RMFifthCircuit

I’m going to do a “live-read” of the SCOTUS transcript in today’s Cummings case. @adams_hurta and I wrote an amicus in this matter, and I’m interested. supremecourt.gov/DocketPDF/20/2…

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The question presented is, basically, can you recover emotional distress damages in some kinds of civil rights cases – for complicated reasons, some of these cases are analyzed by whether the remedy sought would have been available in contract law. /2

Justice Thomas comes out of the gate with that question - if we don’t think you could get emotional distress damages under traditional contract common law, do you have some other argument? /3

There’s an interesting exchange here about how close the analogy to an old contract case has to be before it works for these purposes. /4

J Sotomayor jumps in here to help focus counsel on Justice Kavanaugh’s question, which is, “the other statutes that allow emotional distress damages have caps, but this wouldn’t, isn’t that bad?” /5

Justice Alito presses on how much money the plaintiff wants for emotional distress /6

Justice Sotomayor again wants to help a justice she perceives as on the other side get their answer. /7

That’s us! /8

Colleen Roh Sinzdak for the US is pressed by Roberts on his pet question: what if there’s 1 or 3 or 5 cases allowing emotional distress damages, is that good enough?

Random note to say I like the notion of boiling many oceans. I usually say boiling the ocean, but of course there is more than one, so Colleen is quite right.

Here, we come back to an important question, which is what are the implicit limits keeping damages low in many emotional distress cases?

This is a good exchange between Justice Kagan and @KannonShanmugam about how a defendant would know they are potentially liable. But also note the elegant way Kannon handles “saying the thing I need to say before answering.” —> “let me get the necessary caveat out of the way”

I appreciate how Barrett often says what she’s actually thinking. She’s is very often asking real questions. (There are these innkeeper cases where emotional distress damages are awarded)

Interesting exchange here where Justice Kavanaugh suggests he at least somewhat agrees with Justice Barrett in the previous tweet

Another very interesting question from Justice Barrett - “look, people have been giving emotional distress damages for many years, why hasn’t this come up before”

The response is, among other things, to dispute that distress damages have been handed out for decades.

Justice Kavanaugh is very focused on this analogy to other discrimination statutes - if you can get emotional distress damages in Title VII, why not in the implied cause of action in these spending clause cases?

Interesting question from Justice Kagan - why don’t we just sort of tell courts these damages should be small?

Well, that’s it. Very interesting argument. Pretty much what I would have expected in terms of questions and tone.