[cinFLA]

Then why is the SCOTUS hearing it?

You apparently have not read the briefs nor my explanation on this thread.

[Old Professer]

There is a more informative thread running that stresses the elements; the question I posed was simply a means to declare that the issue has not been settled.

We can all speculate and take sides, but the SCOTUS is charged with clarifying the conditions for upholding or striking the decisions of the lower courts and hence, the law.

Your opinion is not likely to sway their decision.