Still no word from the Supreme Court on Kory v. Bonta. To recap: we filed for certiorari after the Ninth Circuit affirmed Judge Shubb’s denial of a preliminary injunction and upheld his determination—joined by two of the three appellate judges—that the plaintiffs lacked standing.

After we filed the cert petition, the California Attorney General’s office waived its right to respond. However, the Court ordered a response anyway. That’s significant—it means at least one Justice thought it worth hearing how the State would defend the fact that two levels of courts flatly ignored the Court’s core holding in NIFLA: that there is no separate category of “professional speech” excluded from First Amendment protection. California had floated that argument in NIFLA and lost. Yet both the district court and the Ninth Circuit resurrected it. The Supreme Court specifically rejected that theory—and criticized the Ninth Circuit and two other courts for previously embracing it.

So the AG filed its response and did its best to defend decisions that, in our view, directly contradict controlling precedent. The Court then distributed the case for its June 18 conference. Typically, cert grants or denials appear the following Monday. Most petitions are denied without comment, and a few—rarely—are granted. Occasionally, the Court issues a summary reversal or includes a dissent from the denial of cert.

Meanwhile, a key development occurred: the Court granted cert in Chiles v. Salazar, a case out of the Tenth Circuit involving whether a state can regulate counseling as “treatment”—there, the court had held that speech-as-treatment is unprotected, echoing the Ninth Circuit’s approach. This directly conflicts with the Eleventh Circuit, which holds that even treatment-related speech is protected unless it falls into a traditional First Amendment exception.

For context, there are roughly three kinds of “professional speech”: (1) public speech by licensed professionals (as in Stockton v. Ferguson, our pending Ninth Circuit case); (2) speech to patients that is treatment (like Chiles); and (3) speech to patients that involves information, advice, or recommendations—but not treatment per se. That last category defines Kory. We asked the Court to consider Kory alongside Chiles, but if that were happening, we suspect it would have been granted already.

Also telling: if the Court had intended to deny cert, it could have done so in the June 23 or June 30 order lists. The longer we go without a denial, the less likely a silent one-sentence rejection becomes. Justice Thomas, a likely author of any dissent from denial, has already published a few dissents this term—so delay likely isn’t due to Court backlog. Perhaps there’s something more going on.

Here’s my hope: that the Court has decided to summarily reverse with a per curiam opinion. The delay might reflect internal negotiations over concurrence language—maybe Thomas is refining his concurrence to draw one or more of the middle justices (Barrett, Roberts, Kavanaugh) into partial agreement. I’d like to imagine he also adds a paragraph or two on Stockton, describing it as a full-frontal assault on First Amendment doctrine.

Fingers crossed!

Rick Jaffe, Esq.