Justice Neil Gorsuch’s opinion for a unanimous court is as succinct as you would expect from the one-sided discussion at oral argument. He starts by pointing out that the court recently has considered the interstate transportation exception from the FAA “no fewer than three times,” and that it has “rejected efforts to cabin its reach” on each occasion. After summarizing the previous holdings he bluntly states: “Make this case the fourth.” The “sole theory” that the employer presents, he emphasizes, is that to qualify for the interstate transportation exception “a worker must either cross state lines or interact with a vehicle that does (say, by loading or unloading the goods it carries).”

Gorsuch basically makes two points. First, as you might expect, he suggests we “[s]tart with the statutory text,” which protects “workers engaged in … interstate commerce.” Because “engage,” when the statute was written (as now) means “to take part in” or to be “involved” with, “[n]othing … requires an individual to cross state lines or interact with a vehicle that does.” Although interstate commerce may require “transporting products ‘between points in one state and points in another state[,]’ … a person can ‘take part’ … or be ‘involved’ in that continuous journey without leaving a State or touching vehicles that do.”

Gorsuch offers a hypothetical (modeled on the highly successful products of the employer Flowers Foods) of a contract by a company in one state to purchase a truckload of Butterscotch Krimpets from a company that is based in and makes the Krimpets in another state. He posits the idea that the seller

hires three drivers to make the delivery. Driver 1 takes the Krimpets from [the] bakery right up to the border …. Driver 2 then picks up the Krimpets, drives ten feet across the border, puts the Krimpets down again, and heads off. Finally, Driver 3 picks up the Krimpets and delivers them to [the buyer]. Who was engaged in interstate commerce?

Under the rule the employer offers, only Driver 2. But for Gorsuch “that cannot be right. Each of the drivers played a direct, active, and necessary part in ensuring the Krimpets got from a point in [the state of the bakery] to a point in [the state of the buyer] as the contract required.”

Gorsuch’s second point is that this kind of multi-step transportation arrangement “is hardly a hypothetical at all,” as the court considered it in at least four cases in the 19th and early 20th centuries. Those cases all determined that particular transactions involved “interstate commerce” for purposes of the commerce clause of the Constitution, which grants Congress the power to regulate interstate commerce. For example, the earliest of the cases involved “a steamer transporting goods on Grand River operated ‘entirely within the limits of’ … Michigan.” Because the steamer “was employed in transporting goods destined for other states,” Gorsuch explains, the court held that it “was engaged in commerce between the states.”

Gorsuch acknowledges that various facts of the employee’s operations might support a conclusion that this particular transaction did not involve interstate commerce, but he stops short of considering their relevance, explaining that the employer “does not ask us to decide their legal significance,” because the employer “ventures it all upon one cast, asking us to adopt a bright-line rule that an individual can never qualify for [the] exemption unless he crosses state lines or interacts with vehicles that do.” For Gorsuch, “whatever other limits [the statute] may or may not contain, we do not see how the statutory text can support that one.”

On the issues before the court, I doubt this case will make a lot of waves, as it upheld the judgment of the lower court. At most, I would say, it will give lower courts caution in construing the exemption so narrowly. Also, Gorsuch’s pointed reference to four consecutive cases upholding the claims of employees to the exemption probably will not go unnoticed.

Some examples

Major questions and tariffs

The most striking recent example of the commonsense turn is the tariffs case, Learning Resources v. Trump. As one of us described the key facts last month:

[Learning Resources] featured not just debate over the major questions doctrine but also dozens of references to “common sense” or “commonsense,” even though the case featured a 6–3 lineup and seven sharply divergent opinions. Many of these uses of “common sense” did not reflect the plain meaning of statutory terms but instead represented controversial intuitions about the proper operation of government. … Remarkably, every justice in Learning Resources authored or joined a “common sense” opinion.

The jurist most skeptical of the “commonsense” turn was Justice Neil Gorsuch, whose concurrence forcefully criticized Justice Amy Coney Barrett’s quasi-canonical invocation of common sense in her own Biden v. Nebraska concurrence. As he put it, “if common sense really does go so far as to embrace a rule counseling ‘skepticism’ of claims by executive officials that Congress has granted them extraordinary powers, that is common sense in name only.” Gorsuch nonetheless joined the portion of the chief justice’s opinion that repeatedly invoked “common sense.”

Learning Resources thus illustrates not just the rise of common sense judging, but also the emergence of resistance to it.

Standing and Diamond Alternative Energy

In the 2025 decision in Diamond Alternative Energy v. EPA, in which the court held that fuel producers had standing to sue the EPA, Justice Brett Kavanaugh’s majority opinion repeatedly emphasized common sense.

Consider the following passage, which uses “commonsense” in four successive sentences:

In cases of [a certain] kind, this Court’s analysis of causation and redressability has recognized commonsense economic realities. When third party behavior is predictable, commonsense inferences may be drawn. Importantly, EPA agrees that “commonsense economic principles” can be useful when evaluating Article III standing. In this case, those commonsense economic principles support the fuel producers’ standing.

In dissent, Justice Ketanji Brown Jackson recognized the court’s distinctively commonsensical mode of argument and responded in part by challenging it:

I have no quarrel with relying on common sense as a general matter. But we should acknowledge that what counts as a “commonsense” inference to the Justices on this Court may not be viewed as such by others.

In total, “common sense” or “commonsense” appear over a dozen times in the Diamond Alternative Energy opinions.

The Second Amendment and Rahimi

In 2024’s United States v. Rahimi, in which the court upheld a federal law banning persons subject to a domestic-violence restraining order from possessing a gun, the chief justice’s majority opinion also invoked “common sense,” noting that certain practices “confirm what common sense suggests.”

That statement paired well with the court’s turn toward “principles” discernible from history, rather than specific historical analogues. In that vein, Barrett’s separate writing quoted one of her own lower court opinions: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” (Though she did not explain which is doing the work – history, or common sense.)

Much has been written about the pliability of history and tradition in Second Amendment doctrine. But the other opinions in Rahimi demonstrate the pliability of common sense as well. Justice Sonia Sotomayor invoked commonsense, including by quoting Justice Stephen Breyer’s dissent in New York State Rifle & Pistol Association v. Bruen. Had the court adopted a “rigid approach to [] historical inquiry,” she worried, it would have made it “‘nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.’”

And Justice Clarence Thomas’ dissent used commonsense, too. “If self-defense is ‘the central component of the [Second Amendment] right,’ then common sense dictates that it matters whether you can defend yourself with a firearm anywhere, only at home, or nowhere.” (Left unanswered: whether a particular “sense” can truly be “common,” when it is conditioned on knowing a somewhat arcane point of constitutional law.)

More

Recent scholarship confirms that common sense reasoning is spreading throughout public law. A forthcoming article by Brian Murray addresses “Common Sense Constitutionalism and the Fourth Amendment.” A forthcoming article by William Aceves criticizes Kavanaugh’s invocation of “common sense” in Noem v. Vasquez Perdomo, as did a post by Jennifer Chacón. We understand that more common sense scholarship is in the pipeline.

Is “commonsense” judging good?

This commonsense turn is understandable. But ultimately, we think, problematic.

Part of the problem comes from the plasticity of assertions of common sense. In principle, “common sense” could refer to true consensus – a sense held commonly by all, across ideological and other boundaries. Universally held precepts are an important part of legal reasoning. Traditional legal principles like the absurdity canon and the “golden rule” employ them. Arguably forms of unwritten law such as natural law, general law, and customary law can also derive from various kinds of consensus – though these forms of law become much more controversial and of questionable authority the more contested the supposedly common ground.

But today’s common sense turn is not limited to true consensus. Rather the justices (like many other people) often invoke “common sense” when asserting controversial views. They may do so naively, because they erroneously believe that everyone agrees with them; or they might do it more tactically. As a rhetorical maneuver, invoking common sense has the advantage of distancing oneself from a complicated, highfalutin legal analysis. Rather than parsing subsections, multiprong tests, or obscure legal authorities, a lawyer or judge might try to cut through the muck by positing, “It’s just common sense that X, Y, and Z!” But if that common sense is controversial, not truly common, then the rhetorical maneuver amounts to a form of table-pounding rather than an argument.

For decades, adherents to textualism and other formalist methodologies fought to diminish legal maneuvers such as the use of legislative purpose, judicial creation of exceptions for special circumstances, and so on. They made arguments about rules, the perils of judicial discretion, the legal legitimacy of enacted texts, and more. Invocations of common sense allow a judge to soften these commitments without explicitly saying so – and perhaps without fully thinking through the nature of the softness.

Thus one can see the turn to commonsense as a feature of our ongoing legal realignment. Justices long associated with more rigid judicial philosophies are pivoting to more discretionary modes of decisionmaking. Or, more modestly, even if there is not a complete realignment one could see the common sense turn as reflecting the way various rigid doctrines had overextended themselves through exaggerated rigidity and must be modestly trimmed back. Either way, common sense can seem attractive. It provides an unobtrusive cover for a retreat or realignment without coming to terms with what is going on.

In our view, commonsense judging is becoming too common. Even if judges should indeed have a good measure of common sense, and should use it sometimes, it has gone too far. Invocations of common sense have submerged important questions about legal interpretation – if textualism or standing doctrine need a nudge, it is probably time for the court to say so explicitly. The justices have obscured real disagreements with empty rhetoric, and as a result passed up opportunities to forge meaningful compromises.

The act of translating one’s own views (including common sense intuitions) into legal arguments can be difficult, in part because it is disciplining. When justices (or judges, clerks, lawyers ...) are tempted to invoke common sense, they should pause and reflect on what claim they really intend to make. An assertion of consensus? (And if so, is it really true?) A tweak of a too-rigid doctrine? (And if so, what tweak, and with what possible downstream consequences?) A distracting bluster? (And if so, distracting from what?)

And when all of us hear unconvincing assertions of common sense, we can gently push back. “Have you thought about how I might think about this?”, one might ask. “And if we disagree, what legal rule supports your sense over mine?”

At the Court

On Thursday, the court released its opinions in Fernandez v. United States, Rutherford v. United States, Pitchford v. Cain, and Flowers Foods v. Brock.

• In Fernandez, which was decided 8-1, the court wrote on the avenue one must use to seek to challenge the validity of a conviction and concluded that doubts about the validity of a conviction do not qualify as “extraordinary and compelling reasons” for relief under a federal statute that authorizes district courts to shorten prison sentences. Justice Amy Coney Barrett wrote the majority opinion; Justice Sonia Sotomayor wrote an opinion concurring in the judgment, joined by Justice Elena Kagan; and Justice Ketanji Brown Jackson dissented alone.
• The court also considered “extraordinary and compelling reasons” to shorten a sentence in Rutherford and held, 6-3, that a sentencing disparity created by Congress’ nonretroactive change to the mandatory penalties for using and carrying a gun during a crime of violence does not qualify as such a reason. Barrett wrote the majority opinion, and Sotomayor wrote a dissenting opinion, joined by Kagan and Jackson.
• In Pitchford, the court held, 5-4, that the Mississippi Supreme Court unreasonably determined that Terry Pitchford, who is currently on death row in that state, had waived his opportunity to rebut the prosecutor’s asserted race-neutral reasons for peremptory strikes of four Black prospective jurors. Justice Brett Kavanaugh wrote the majority opinion, and Justice Neil Gorsuch wrote a dissenting opinion, joined by Justices Clarence Thomas, Samuel Alito, and Barrett.
• In Flowers Foods, the court, in an opinion from Gorsuch, unanimously held that the Federal Arbitration Act’s exemption from compelled arbitration for workers “engaged in ... interstate commerce” can apply to a worker who transports goods on an intrastate leg of an interstate journey and who does not cross state lines or interact with vehicles that do.

After the opinion announcements, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from Thursday’s conference are expected on Monday at 9:30 a.m. EDT.

The court has indicated that it may announce opinions on Thursday, June 4, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30 a.m.

Morning Reads

Court Orders Customs Chief to Address Compliance on Refunding Tariffs

Tony Romm, The New York Times (paywalled)

On Wednesday, the Court of International Trade “ordered Rodney S. Scott, the head of U.S. Customs and Border Protection, to appear at a hearing next month on the Trump administration’s handling of roughly $166 billion in tariff refunds,” according to The New York Times. “The unexpected demand ... hinted at a judge’s ongoing concern that the government has not fully complied with a directive to return all of the money amassed under duties that were declared illegal by the Supreme Court earlier this year.”

Supreme Court May Upend Congress Power Over Trump’s Iran War: Republicans

Mandy Taheri, Newsweek

As conflict continues in Iran, “Republicans defending President Donald Trump’s military actions” are contending that “a growing fight over the War Powers Resolution could ultimately land before the Supreme Court,” according to Newsweek. “The 1973 War Powers Resolution allows Congress to direct the president to withdraw U.S. forces from hostilities not authorized by lawmakers.” In recent weeks, it has been raised by Democrats as a way to end military strikes against Iran, which were not authorized by Congress. Members of the Trump administration have described the resolution as unconstitutional. Newsweek noted that “[i]f the administration did try to bring a lawsuit over the War Powers Resolution to the Supreme Court, the court would first have to decide whether to hear the case. Historically, courts have often avoided ruling” in such disputes “by saying they are political questions better resolved by Congress and the president, or by finding lawmakers lacked standing to sue.”

A Low-Profile Supreme Court Ruling Stands to Change How Cities Build

John Surico, Bloomberg (paywalled)

One year ago, in Seven County Infrastructure Coalition v. Eagle County, Colorado, the court “blunt[ed]” the powers of the National Environmental Policy Act, which “requires federal agencies to perform environmental impact statements (EIS) or environmental assessments (EA) to gauge the so-called upstream or downstream impacts of any project before work begins,” by limiting the scope of the environmental review required to satisfy it. Today, “cities and states interested in infrastructure projects are still trying to figure out” what the decision means for those projects, according to Bloomberg, but some experts believe they’ll face less government red tape than they did in the past. “Now we just want to tell the world: ‘You’ve been wanting to build. Now you can actually do it,’” said Sarah Feinberg, who served as an administrator of the Federal Railroad Administration under President Barack Obama.

Samuel Alito’s Son Has Been Quietly Working for Trump’s Treasury Department

Jose Pagliery, NOTUS

Justice Samuel Alito’s son, Philip Alito, “quietly landed a political appointee job as a lawyer in the Treasury Department early last year … posing a potential conflict of interest,” including in challenges to the Trump administration’s new anti-weaponization fund, according to NOTUS, which cited “four former government officials.” “Alito has been working as an attorney with the Treasury’s office of the general counsel, which provides legal and policy advice to Secretary Scott Bessent.” In a statement to NOTUS, the Treasury Department said that “Philip Alito is currently detailed from the U.S. Attorney’s Office for the Eastern District of Virginia ... and his portfolio covers a broad range of topics. As a matter of both professional and personal judgment, Phil does not counsel on any matters reasonably expected before the Supreme Court.” Similarly, Patricia McCabe, the Supreme Court’s public information officer, told NOTUS in a statement that Philip Alito “has not worked on any matter related to the tariffs imposed by the federal government. As a result, Justice Alito has not recused in those cases.”

On Site

Court News

Justice Barrett targeted in “swatting” incident

Justice Amy Coney Barrett was the target of a “swatting” incident – a false call reporting gunshots intended to provoke a response from law enforcement officials – on Wednesday night, according to a report on social media that was later confirmed by police in Fairfax County, Virginia, in a statement to the National Review.

Opinion Analysis

Supreme Court sides with death row inmate in challenge to racial discrimination in jury selection

The Supreme Court on Thursday threw out a Mississippi man’s conviction and death sentence. By a vote of 5-4, the court in Pitchford v. Cain agreed with Terry Pitchford that the judge at his 2006 trial had not properly analyzed whether the prosecutor in Pitchford’s case violated the Constitution’s ban on racial discrimination in jury selection.

Contributor Corner

How often do courts actually cite emergency docket orders?

Taraleigh Davis analyzed the “precedential weight” of the Supreme Court’s emergency docket orders. She found that 53% of 475 substantive emergency applications filed between 2000 and 2024 have been cited by at least one federal court as of October 2025, and contended that a “precedent system is developing through practice, case by case, citation by citation, without the transparency that normally accompanies precedent-setting.”

A Closer Look

Justice Joseph Story

The youngest associate justice in Supreme Court history, Joseph Story, was also by some accounts one of the most consequential. Born in September 1779, in Marblehead, Massachusetts, – a coastal town north of Boston – Story was the son of a physician who had participated in the Boston Tea Party.

Story enrolled at Harvard at 16 (he was forced to leave his primary school early due to conflicts with one of his classmates and the schoolmaster), and studied hard to the detriment of his health (he would be afflicted by stomach problems throughout the rest of his life). Story nevertheless managed to finish second in his Harvard class in 1798, and then read law under Samuel Sewall, who would go on to become chief justice of the Massachusetts Supreme Judicial Court.

Story was admitted to the Massachusetts bar in 1801 and built a reputation in commercial and maritime law. Personal hardship followed him through these early years: his first wife died a little over six months into their marriage, and his father died a few months later. His second marriage brought seven children, though only two survived to adulthood; the deaths of his children sent Story into spells of deep depression, and he memorialized such losses in poetry.

Before returning to law, Story spent time in the political arena – serving in the Massachusetts Legislature beginning in 1805, winning a seat in Congress in 1808, and eventually becoming Speaker of the Massachusetts House in 1811 – all before turning 32. He ultimately decided to leave politics, saying party allegiance forced him to sacrifice his own views.

President James Madison nominated Story in November 1811 to fill the vacancy left by Justice William Cushing’s death, and Story was confirmed just three days later. At 32, Story is the youngest person ever to join the court. He also ranks among the longest-serving justices in the court’s history. Although Madison had hoped Story would serve as an ideological counterweight to Chief Justice John Marshall, he became one of Marshall’s closest intellectual allies on the bench instead, siding with him on nearly all of the era’s landmark decisions. Story’s judicial philosophy was grounded in what he called “legal science” – a conviction that the uniform application of law would make the nation stronger. (Andrew Jackson, suspicious of Story’s support of nationalism, reportedly called him “the most dangerous man in America.”)

Story authored a fair number of opinions between 1816 and 1823, with him and Justice William Johnson writing 113 between them (because Chief Justice John Marshall took the lion’s share, the remaining four justices were left with just 65). One of Story’s first significant opinions came in 1816’s Martin v. Hunter’s Lessee, in which he authored the opinion establishing the Supreme Court’s appellate authority over state courts in federal matters – a ruling now regarded as “a fundamental principle in the function of the Supreme Court.”

Story’s record on slavery is complicated, given that he personally regarded the institution as repugnant to the principles of justice and humanity but felt constitutionally bound to uphold it; this produced two pivotal decisions late in his career. In 1841’s United States v. The Amistad, Story wrote the majority opinion freeing a group of Africans who had seized a Spanish slave ship, reasoning that because they had been illegally kidnapped, they were free individuals entitled to their liberty. (As a sidenote, Story was portrayed in Steven Spielberg’s 1997 film adaptation of the Amistad case by Justice Harry Blackmun — the only known instance of one Supreme Court justice portraying another on screen). The next year in Prigg v. Pennsylvania, Story authored the opinion upholding the federal Fugitive Slave Act and striking down Pennsylvania’s protective state law, which critics have argued gave slavery a constitutional foothold it had not previously held so explicitly.

Story’s influence was also apparent off the bench. Beginning in 1829, while still serving as an associate justice, he became a professor of Law at Harvard. His Commentaries on the Constitution of the United States, published in 1833, “set forth a philosophy of judicial restraint,” became a staple in American law schools, and was cited in two 1980 Supreme Court cases. Future Justice Oliver Wendell Holmes said that Story had “done more than any other English-speaking man in this century to make the law luminous and easy to understand.”

Story died unexpectedly on Sept. 10, 1845, at the age of 65, in Cambridge, Massachusetts, and was buried at Mount Auburn Cemetery, where he had delivered a dedication address years before. In 2009, Story was commemorated on a stamp souvenir sheet issued nationally by the U.S. Postal Service – per the USPS: “Joseph Story ranks as one of the nation’s most influential jurists … [h]is devotion to the uniform enforcement of federal regulations by all the states helped establish the preeminence of the Supreme Court.”

SCOTUS Quote

JUSTICE SCALIA: “ … That at least is logical. I'm not sure it's right. But it's logical.”

MR. KRAMER: “Well, I'm halfway there.”

— Smith v. United States  (2012)

Police in Fairfax County, Virginia, outside Washington, D.C., confirmed the incident in a statement to the National Review.

Leyden’s post on X included audio from the police department, which he said had been redacted under media guidelines intended to reduce copycat incidents. The audio noted that the address had “24-hour security coverage for a high-priority resident of the county.” An officer then reported that he had “made contact with security that’s on scene” at the house and the security detail hadn’t “heard anything.”

The justices have had around-the-clock security since at least 2022, when the leak of the court’s draft decision in Dobbs v. Jackson Women’s Health Organization, which would overturn the constitutional right to an abortion recognized in Roe v. Wade, led to protests outside several of the conservative justices’ homes, including Barrett’s. In June of that year, a California man was arrested and charged with attempting to assassinate Justice Brett Kavanaugh at his home in Maryland.

Last year, Barrett’s sister, who lives in South Carolina, was the target of a bomb threat. As CNN reported, an email sent to the Charleston County Sheriff’s Office indicated that a pipe bomb had been placed in her mailbox, but no bomb was found there.

Justice Brett Kavanaugh wrote for the majority, in a nine-page opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Quoting a 2019 opinion in which the court threw out the conviction of Mississippi inmate Curtis Flowers in a case that involved the same prosecutor, Kavanaugh acknowledged that “‘America’s trial judges operate at the front lines of American justice’ and ‘the job of enforcing’” the Supreme Court’s 1986 decision in Batson v. Kentucky, holding that the use of peremptory challenges (that is, challenges for any reason) to remove potential jurors based on race violates the Constitution, “‘rests first and foremost with trial judges.’” But in Pitchford’s case, Kavanaugh wrote, “the Mississippi trial court erroneously omitted” a key part of the Batson inquiry.

Justice Neil Gorsuch dissented, in a 10-page opinion joined by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. In his view, Kavanaugh’s “opinion errs on the law and the factual record alike.”

Pitchford, who was 18 at the time, was charged with murder for his role in the 2004 shooting death of a shopkeeper. A 16-year-old, Eric Bullins, fired the shots that actually killed Reuben Britt; he pleaded guilty and was sentenced to 20 years in prison.

At Pitchford’s trial, the local district attorney, Doug Evans, used his peremptory challenges to excuse four potential jurors, all of whom were Black.

Pitchford’s lawyers objected, arguing that the strikes violated Batson. The trial judge (who had also presided over Flowers’ case) rejected that argument, resulting in a jury with just one Black juror in a county with a population that is 40% Black.

The Mississippi Supreme Court upheld Pitchford’s conviction and sentence. A Batson challenge has three parts. At the first step, the defendant must make an initial showing that a peremptory strike of a juror was based on race. At the second step, prosecutors must provide a reason for the strike that is not based on race. And at the third step, the defendant’s lawyers have a chance to show that the prosecutors’ race-neutral reason is in fact pretextual – that is, fabricated to cover up the real reason. The state supreme court concluded that Pitchford had waived his right to make his Batson claim because he had not offered any arguments to the trial court at the third step to rebut the prosecutor’s race-neutral explanations – for example, that one potential juror was late to court and another had a relative who committed a “similar offense” to Pitchford.

Pitchford went next to federal court in Mississippi to seek post-conviction relief. U.S. District Judge Michael Mills agreed with Pitchford that the juror strikes violated Batson and ordered the state to either retry Pitchford or release him.

The state appealed to the U.S. Court of Appeals for the 5th Circuit, which reversed. It held that under the Antiterrorism and Effective Death Penalty Act, the federal law governing post-conviction claims, the dispositive question was not whether the Mississippi Supreme Court’s ruling was correct but instead whether the decision was “an ‘objectively unreasonable’ application of a Supreme Court ‘holding[]’” – which, the court of appeals concluded, it was not.

On Thursday, the Supreme Court reversed the 5th Circuit’s decision and sent the case back to the lower courts. Kavanaugh’s analysis in his opinion for the majority was succinct. “After a prosecutor asserts race-neutral reasons for a peremptory strike,” he explained, “the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual. Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual.” But in Pitchford’s case, Kavanaugh continued, “whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred—notwithstanding the repeated efforts of Pitchford’s counsel to pursue and preserve the Batson objection.”

Kavanaugh conceded that, in cases involving AEDPA, federal courts normally are “deferential to the state court. But deference does not mean abdication,” he stressed. And here, “the Mississippi Supreme Court’s conclusion that Pitchford waived his opportunity to rebut the prosecutor’s proffered race-neutral reasons was unreasonable.”

In his dissent, Gorsuch emphasized the high bar that an inmate like Pitchford, who was convicted in state court, must clear to obtain federal post-conviction relief under AEDPA. “Showing legal error, we have said, isn’t enough” to obtain relief, he wrote. “Instead,” he said, an inmate “must demonstrate that ‘no fairminded jurist could reach the state court’s conclusion under this Court’s precedent.’” And when it comes to factual findings, he continued, the state court’s finding “must have so little support in the record that only an ‘unreasonable’ jurist could make it.” In Gorsuch’s view, Pitchford “has failed to satisfy either of these standards.”

So what are lower courts actually doing with emergency docket orders? I went to the data to find out.

Turns out: quite a lot

I conducted a citation analysis of 475 substantive emergency applications filed between 2000 and 2024 and found that 53% had been cited by at least one federal court as of October 2025. The Supreme Court itself cited 11% of these decisions in subsequent rulings, including in major merits opinions. In West Virginia v. EPA, for example, the court cited Alabama Association of Realtors v. Department of Health and Human Services, an eight-page emergency order blocking the CDC's eviction moratorium, as part of the body of cases supporting the major questions doctrine.

Of course, not all cases get cited equally. Roman Catholic Diocese of Brooklyn v. Cuomo leads all categories with 627 federal court citations. There, during the heart of COVID, the court issued a written opinion and established two concrete, frequently applicable rules: that restrictions singling out religious entities while allowing comparable secular businesses to operate likely violate the First Amendment, and that even brief losses of First Amendment freedoms constitute irreparable harm. Every court facing a COVID-era restriction challenge had reason to cite it. Courts also cite emergency orders for reasons beyond their core holdings. Pascale v. Chrysler, decided during the 2008 financial crisis, continues to receive citations 16 years later, not for its bankruptcy holding but for its articulation of stay standards that courts apply repeatedly.

Both reasoned and unreasoned orders get cited

Emergency docket cases with written opinions are more likely to be cited: 68% received at least one citation, compared to 50% of cases without opinions. Furthermore, emergency docket cases accompanied by written opinions averaged 45 citations each, compared to 10 citations for minimally reasoned orders. That is nearly a five to one difference. And that pattern makes intuitive sense: more reasoning gives lower courts more to work with.

But cases without written opinions still collectively accumulated 3,957 citations. That means courts are extracting precedential value even from one-line orders. What does that look like in practice? In one case, Care One, LLC v. NLRB, the U.S. Court of Appeals for the 2nd Circuit cited Trump v. Slaughter, an emergency stay granted without explanation, as authority for the proposition that the Supreme Court had continued to allow the president to remove statutorily protected officers without cause. The reasoning may be absent. The signal is not.

And the number of citations is growing

When I compared citation counts for the same 342 substantive cases available in both April 2023 and October 2025, total citations increased by 63%, from 3,558 to 5,804. The median number of citations per case doubled. Courts are not approaching equilibrium on emergency precedent. They are accelerating.

It is not just one circuit

Finally, this is not just taking place in one or a handful of circuits: it is happening across the board. Indeed, every federal circuit cited emergency applications between 2023 and 2025. The U.S. Court of Appeals for the 5th Circuit saw the steepest growth rate, adding 355 citations, an 89% increase. The 9th Circuit (which handles the greatest volume of federal cases overall) had the highest raw total with 1,209 citations, up 86% from 2023. This is especially notable because the 9th Circuit had one of the most contentious relationships with the emergency docket during the COVID era, repeatedly having its decisions stayed by the Supreme Court. Rather than pulling back from emergency precedent, however, it responded by incorporating it more heavily. The U.S. Courts of Appeals for the 2nd, 4th, and D.C. Circuits all showed substantial growth as well. Again, this is not a regional phenomenon. It is judiciary-wide.

So what does this tell us?

The debate over whether emergency orders should count as precedent is largely theoretical at this point. Courts have already decided the practical question. A precedent system is developing through practice, case by case, citation by citation, without the transparency that normally accompanies precedent-setting.

Lower courts are not the problem here. They are doing exactly what they should, following signals from the Supreme Court. But because emergency orders often contain little or no reasoning, courts applying them must guess at their scope and limits. Indeed, when the Supreme Court itself cannot agree on whether a prior emergency order controls a current dispute, that guesswork becomes harder still. Despite Gorsuch’s claim otherwise, that is not an “anarchy” problem. It is a clarity problem. And the data suggests it is getting more urgent, not less.

At the Court

On Wednesday, Alabama again asked the Supreme Court to allow it to use the congressional map it adopted in 2023 in the 2026 midterm elections. For more on the latest chapter of a long-running dispute, see the On Site section below.

After the possible announcement of opinions this morning, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from today’s conference are expected on Monday at 9:30 a.m. EDT.

Morning Reads

$20 billion in tariff refunds paid so far, with more on the way

Steve Kopack, NBC News

In a Tuesday filing with the Court of International Trade, Brandon Lord, executive director of trade programs at the U.S. Customs and Border Protection agency, stated that the “Trump administration has refunded more than $20 billion so far in tariffs to importers and shippers ... after the Supreme Court struck down the cornerstone of President Donald Trump’s trade policy in February.” Lord also said that a total of “[a]pproximately $85 billion” in refund requests “have been accepted for processing.” NBC News noted that “[h]undreds of companies have lined up to get their money back, including Costco, Walmart, Home Depot, Target, General Motors, Ford Motor Company, FedEx, UPS and DHL.”

US Supreme Court settles long-running water dispute over dwindling Rio Grande

Susan Montoya Bryan, Associated Press

In a brief order on Tuesday, the Supreme Court “approved a settlement package designed to rein in groundwater pumping along one of North America’s longest rivers and ensure enough water reliably makes it from New Mexico to Texas, ending a long-running dispute over management of the Rio Grande,” according to the Associated Press. “The settlement calls for reducing groundwater pumping along the dwindling river and retiring water rights from irrigated farmland in southern New Mexico.” It was “first proposed last year by New Mexico, Texas and Colorado” and recommended by a court-appointed special master.

Appeals court ruling will prevent Mahmoud Khalil's removal while he seeks Supreme Court review

Armando Garcia, ABC News

On Tuesday, the U.S. Court of Appeals for the 3rd Circuit granted Mahmoud Khalil’s request to temporarily pause its ruling against him in order to “prevent the Trump administration from detaining Khalil while he seeks to have his case reviewed by the Supreme Court,” according to ABC News. Khalil is “a green card holder who is married to an American citizen” who was detained by ICE last year over his participation in pro-Palestinian campus demonstrations at Columbia University but then released after filing a federal lawsuit alleging First Amendment violations. The 3rd Circuit ruling that is now on hold cleared the way for Khalil’s case to proceed in immigration court and for him to be detained again.

Police hypnotized a witness. Now a Texas man faces death.

Jennifer Thompson, The Washington Post (paywalled)

In a column for The Washington Post, Jennifer Thompson described her experience accusing the wrong man of raping her, which she said resulted from “trauma and suggestive police procedures.” That man, Ronald Cotton, was convicted of the crime and “spent more than a decade behind bars before DNA evidence revealed the truth – he was innocent of the crime, and the real perpetrator was someone else,” Thompson wrote. She went on to highlight the case of Charles Flores, who is on death row in Texas and who she believes was the victim of similarly suggestive investigative tactics – namely, “investigative hypnosis.” Thompson noted that she wrote a brief supporting Flores’ effort to have the Supreme Court review his case and urged the justices to “ensure that Flores is not wrongfully executed based on unreliable eyewitness identification.”

On Site

Court News

Alabama urges Supreme Court to allow for use of congressional map struck by lower court as racially discriminatory

Just over two weeks after the Supreme Court cleared the way for Alabama to use a congressional map that a lower court had blocked as racially discriminatory, Alabama returned to the court on Wednesday and asked the justices to pause a new ruling by a panel of federal judges that once again barred the state from using the map.

Relist Watch

New York Times v. Sullivan, service, and sentence credits

In his Relist Watch column, John Elwood highlighted three newly relisted petitions for review, including Harvard Law professor emeritus Alan Dershowitz’s request for the court to revisit 1964’s New York Times v. Sullivan, holding that the First Amendment prohibits allowing a public figure from recovering for defamation absent “actual malice,” meaning a showing that the defendant knew the statement was false or was reckless in publishing it.

Contributor Corner

The Roberts court’s record on the First Amendment

In his Empirical SCOTUS column, Adam Feldman analyzed the Roberts court’s record in cases involving free speech and religious freedom claims. He found that the “court is often pro-speech, strongly pro-religion, and most consistent when speech overlaps with religious identity or conscience.”

Contributor Corner

Criminal law update: some defense-friendly rulings and a big case that wasn’t

In his ScotusCrim column, Rory Little offered an update on how the court is handing its criminal cases this term and brief descriptions of the “big” criminal cases that still await decision. He also discussed the court’s decision to dismiss Hamm v. Smith as “improvidently granted,” which he had previously described as “one of the most important criminal law cases facing the court this term.”

Podcasts

Amarica's Constitution

Unrehearsed Answers

Akhil Amar and Andy Lipka answer listeners’ questions about pardons, illegal military orders, simultaneous office holding, and the Trump administration’s supposed weaponization slush fund.

A Closer Look

Harris v. Bessent

Last year on its interim docket, the court considered multiple disputes over President Donald Trump’s firing of independent agency heads. The justices agreed to hear argument in one of those cases – Trump v. Slaughter, on the president’s effort to remove Rebecca Slaughter from the Federal Trade Commission without cause – as well as in Trump v. Cook, on the president’s effort to remove Lisa Cook, a member of the Federal Reserve’s Board of Governors, for cause. The court cleared the way for several of the firings, including Slaughter’s (but not Cook’s), to take effect while the lawsuits play out.

The court’s eventual rulings in Slaughter and Cook, which are expected by early July, may redefine the limits of executive power and determine the future of independent agencies. And the Slaughter decision will likely also influence how the court responds to the petition for review in Harris v. Bessent, which addresses Trump’s February 2025 firing of Cathy Harris from the Merit Systems Protection Board and which is scheduled to be considered during the justices’ private conference on Thursday.

Harris was appointed to the MSPB, which oversees the federal government’s personnel practices, in 2022 by then-President Joe Biden, and she was set to serve on the board until 2028. But on Feb. 10, 2025, Trump terminated her. Harris filed a federal lawsuit the next day, emphasizing that, under federal law, members of the MSPB can only be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.”

U.S. District Judge Rudolph Contreras sided with Harris, holding that MSPB leaders can only be removed “for cause” and that such removal protections are constitutional. The Trump administration appealed his ruling to the U.S. Court of Appeals for the District of Columbia Circuit, where it was consolidated with a dispute over Trump’s effort to remove Gwynne Wilcox from the National Labor Relations Board. (Like Harris, Wilcox had won the right to return to her job before a federal district court.) A D.C. Circuit panel initially granted the administration’s request to be able to fire Harris and Wilcox while their lawsuits continue, but the full court vacated the panel’s order and denied the government’s request.

In April 2025, the Trump administration came to the Supreme Court on its interim docket and asked the justices to pause the orders allowing Harris and Wilcox to continue working. The court granted that request in late May in a two-page, unsigned order that included a brief discussion of the majority’s views on executive control over federal agencies – views that will likely be more fully fleshed out in the upcoming Slaughter and Cook rulings.

“Because the Constitution vests the executive power in the President ... he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” the order said. “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” (At the same time, the court noted that the Fed, as “a uniquely structured, quasi-private entity,” is distinct from these other federal agencies, and that the for-cause removal protections for Fed governors should therefore not be viewed through the same lens.)

Justice Elena Kagan dissented from the court’s decision, in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, and described the order as “nothing short of extraordinary.” “The President,” Kagan wrote, “has no legal right to relief. Congress, by statute, has protected members of the NLRB and MSPB (like Wilcox and Harris) from Presidential removal except for good cause.”

In December 2025, the D.C. Circuit issued its ruling in Wilcox’s and Harris’ cases. Echoing the Supreme Court’s interim order, the court held that “Congress may restrict the President’s ability to remove principal officers who wield only quasi-legislative or quasi-judicial powers.” However, the court continued, “Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power,” and thus Trump could remove Wilcox and Harris without cause.

In her petition for review, Harris contends that the D.C. Circuit failed to recognize the difference between policymaking agencies, like the FTC, and agencies, like the MSPB, “that do[] not make policy, and instead appl[y] the law to facts in discrete cases.” Those two categories of agencies wield significantly different amounts of executive power, according to the petition, and Congress can offer leaders of agencies that fall into the latter group for-cause removal protections without limiting the president’s authority to control the executive branch. Even if leaders of the MSPB wield some executive power, Harris adds, the appropriate legal remedy is not to invalidate the removal protections, but to adjust the MSPB’s scope of authority.

Harris presents her case to the justices as a natural follow-up to Slaughter that will allow them to determine “whether Congress may enact a for-cause removal statute for a purely ‘adjudicatory body.’” At the very least, she contends, her case should be remanded to the D.C. Circuit for reconsideration once the Slaughter ruling is released.

In the government’s reply to Harris’ petition, U.S. Solicitor General D. John Sauer counters that the D.C. Circuit’s decision was correct because the MSPB “plainly exercises executive power” and further argues that Harris’ suggested exception for “adjudicatory bodies” “is flawed in principle and contrary to precedent.”

The justices are scheduled to consider Harris v. Bessent for the first time during Thursday’s conference, but they will likely wait until the Slaughter ruling is released to take action on it.

SCOTUS Quote

CHIEF JUSTICE ROBERTS: “Well, just in terms of your position, do you think they could pull the car over?”

MR. KLEVEN: “No, Your Honor …”

CHIEF JUSTICE ROBERTS: “Really? Okay.”

MR. KLEVEN: “Because, again, it's just the – the seriousness of the claim should not affect whether there is, in fact, reasonable suspicion.”

JUSTICE KENNEDY: “You get an A for consistency. I'm – I'm not sure about common sense.”

— Prado Navarette v. California (2014)

Unless the lower court’s decision is put on hold, Alabama Solicitor General A. Barrett Bowdre told the justices, both “Alabama and the public face irreparable harm … because they will be unable to use the State’s ‘duly enacted plans’ for the 2026 election. Worse still, voters will be forced to vote under a court-drawn racially gerrymandered map that does not meet Alabama’s legitimate districting goals.”

Wednesday’s filing was the latest chapter in a dispute that began in 2021, when the state enacted a new congressional map. A group of Black voters and civil rights organizations went to federal court to challenge the map. They contended that the new map violated Section 2 of the Voting Rights Act, which bars racial discrimination in voting, because it spread Black voters in southern Alabama across three congressional districts, leaving them a minority in each.

The lower court agreed that the 2021 map likely violated Section 2, and it prohibited the state from using the map. In 2023, the Supreme Court upheld that decision, prompting Alabama to draw a new map. That map also drew a challenge in federal court, leading to a ruling that the 2023 map also likely violated Section 2. The lower court once again barred Alabama from using its map, and the Supreme Court declined to put that order on hold.

A court-appointed special master eventually created a new map, which the lower court ordered the state to use in future elections. That court ruled last year after a trial that the 2023 map did indeed violate the VRA. It concluded that the map was “an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.”

Alabama appealed the lower court’s ruling to the Supreme Court, which on May 11 – one week before the state’s primary election was originally scheduled to take place – sent the case back to the lower court for another look in light of its decision in Callais. It did so in an unsigned, one-paragraph order, in which the justices did not provide any additional explanation for their decision. In the interim, the Alabama Legislature passed a law allowing “a special primary election for affected Congressional districts” if a federal court permits the state to restore the 2023 map.

Justice Sonia Sotomayor dissented from the court’s order, in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor argued that there was “no reason” for the court to send the case back to the lower court because that court had also concluded that “Alabama violated the Fourteenth Amendment by intentionally diluting the votes of Black voters in Alabama. That constitutional finding of intentional discrimination is independent of,” she wrote, “and unaffected by, any of the legal issues discussed in Callais.”

When the case returned to the lower court, the panel of three judges – which included one Clinton appointee and two Trump appointees – again barred the state from using the 2023 map and instead instructed Alabama to use the map created by the special master. The panel wrote that “we cannot see our way clear to requiring Alabamians to cast their votes in the 2026 elections under a districting plan tainted by intentional race-based discrimination. And under the unusual circumstances of this case,” the judges wrote, “we conclude that a limited order requiring the Secretary” of State “to continue using this Court’s race-blind map will not disrupt Alabama’s elections.” Finally, the judges explained that they did not “lightly intrude in state affairs,” but there was “no doubt that Alabama’s legislatively enacted plan … intentionally discriminated based on race in violation of the Constitution. Our re-examination in light of Callais yields the same conclusion.”

In its filing on Wednesday, Alabama urged the court to freeze the lower court’s ruling and allow it to use the 2023 map in the upcoming elections. That map, Bowdre wrote, “addressed this Court’s concerns about the State’s prioritization of core retention” – the principle of trying to have districts resemble their earlier iterations as closely as possible – “at the cost of splitting the Black Belt region,” an area in central Alabama originally named for its rich, dark soil but now named for its large Black population, the descendants of formerly enslaved people. The 2023 map, Bowdre said, divided the Black Belt “as little as possible, while also keeping together the Gulf Coast as the State had done for 50 years.”

“Callais,” Bowdre continued, “vindicates Alabama’s position on the lawfulness of the 2023 Plan, yet the district court decided in one week that Callais changed nothing.” The district court, Bowdre stressed, did not require the challengers to offer alternative maps that would achieve Alabama’s goals while still maintaining two majority-Black districts, as the Supreme Court suggested it should have, and “[i]t did not matter to the district court that drawing an additional race-based district came at the cost of sacrificing communities of interest and pairing incumbents.”

“Worse,” Bowdre concluded, the district court’s conclusion that the state intentionally violated the Constitution rests on the idea “that Alabama intentionally discriminated by refusing to intentionally discriminate.”

Alabama asked the Supreme Court to put the lower court’s ruling on hold temporarily while it considers the state’s request – an order known as an administrative stay – and it asked the justices to act by 10 a.m. on Monday, June 1. In the alternative, it suggested, the court could go ahead and either reverse the lower court’s ruling now or take up the dispute and hear oral argument in the fall.

The Supreme Court has done a substantial amount of house cleaning this week, disposing of six relists.

The justices summarily reversed in Margolin v. National Association of Immigration Judges, a fight over whether immigration judges’ challenge to a government speech policy had to proceed through the Civil Service Reform Act’s administrative-review scheme rather than in district court. In a per curiam opinion, the court said the U.S. Court of Appeals for the 4th Circuit violated the party-presentation principle by deciding a broader question the parties had not raised – namely, that the CSRA’s administrative-review scheme was not to be employed if current conditions suggested this was not “functioning as Congress intended” (because tenure protections for such judges was being challenged by the administration and the Merit Systems Protection Board lacked a quorum).

Justice Clarence Thomas, joined by Justice Amy Coney Barrett, concurred to say the 4th Circuit was wrong on the merits too, because the court’s precedents already made clear that this dispute belonged in the CSRA process. One of last week’s relists, Walters v. Coleman, is a petition also challenging a claimed 4th Circuit departure from the party-presentation principle, so we may be hearing more on the subject soon. The court also denied review on the judges’ companion cross-petition in National Association of Immigration Judges v. Margolin, asking whether a pre-enforcement challenge to a broad speech restriction on federal employees can bypass the CSRA altogether.

The rest of the cleanup was quieter, though not silent. The court denied review in Florida v. California and Washington (Florida’s effort to invoke the court’s original jurisdiction to block California and Washington from issuing commercial driver’s licenses to undocumented immigrants with poor English), over a dissent from denial by Thomas joined by Justice Samuel Alito, reprising their argument (which seems to be correct!) that the Supreme Court “cannot refuse to hear suits between States.”

The court also denied review in Reinink v. Hart (a qualified-immunity case involving whether an officer’s mistaken use of greater-than-intended force should be analyzed under deadly-force rules, and whether the officer was entitled to qualified immunity), with Thomas and Alito noting they would have granted and summarily reversed; in New York Football Giants v. Flores (whether an NFL arbitration agreement is unenforceable under the Federal Arbitration Act because it names the commissioner as the default arbitrator and lets him shape the procedures), with Justice Brett Kavanaugh indicating he would have granted; and in Union Carbide Corp. v. Sommerville (a fight over whether challenges to the factual basis of expert testimony go to admissibility or merely weight), which was denied without comment.

On to new business: There are 85 petitions and applications on the docket for this week’s conference. Three are being considered for a second time.

Overruling New York Times v. Sullivan?

Dershowitz v. Cable News Network, Inc. asks the court to revisit one of the press’ favorite precedents and one of Thomas’ least favorite: New York Times v. Sullivan, holding that the First Amendment prohibits allowing a public figure from recovering for defamation absent “actual malice,” meaning a showing the defendant knew the statement was false or was reckless in publishing it.

Harvard Law professor emeritus Alan Dershowitz sued CNN over commentary criticizing his argument, made while representing President Donald Trump at his first impeachment trial, that a president who acts partly to help his reelection does not commit an impeachable offense if he believes his reelection serves the public interest. CNN commentators characterized the argument as a claim that presidents can do essentially anything to get reelected; Dershowitz says that ignored his explicit carveout for “purely corrupt” conduct involving personal pecuniary gain, such as demanding kickbacks. The U.S. Court of Appeals for the 11th Circuit affirmed the district court’s summary judgment for CNN, concluding that even if the commentary was wrong, overheated, or uncharitable – imagine that, on cable news! – Dershowitz had not shown actual malice because the record showed the commentators believed their interpretations were accurate. Judge Barbara Lagoa concurred but wrote a lengthy originalist critique of Sullivan, saying the opinion was inconsistent with Founding-era practice; Judge Charles Wilson also concurred, defending Sullivan as a cornerstone of First Amendment law.

Dershowitz’s petition asks whether deliberate omission of qualifying language suffices to show actual malice; whether Sullivan should be overruled or not applied to private citizens; and whether its clear-and-convincing-evidence rule should be relaxed. CNN responds that this case is less a clean vehicle than a cable-news pileup: Florida law independently requires actual malice, the court of appeals found no evidence that CNN’s speakers actually doubted their characterizations, and CNN aired the full remarks and later gave Dershowitz time to explain himself. And plus, CNN says, Sullivan was correctly decided. While Thomas has repeatedly written cert-stage opinions that criticized Sullivan, as has Justice Neil Gorsuch, the other justices have not shown much interest in revisiting that case. So this petition seems more likely to produce separate writing than a grant.

Service in immigration cases

United States v. Rivera-Valdes is the solicitor general’s effort to persuade the court that the U.S. Court of Appeals for the 9th Circuit has converted a modest due-process rule into an immigration-administering headache. Leopoldo Rivera-Valdes, a Mexican citizen, was served in 1994 with an order to show cause advising him that a deportation hearing would be scheduled at a future date and that notice would be mailed to his last-provided address. As then specified by statute, the government later mailed the hearing notice by certified mail to that address containing the time, place, and location of his hearing. But the letter was “Returned to Sender” “unclaimed,” and the immigration court proceeded without him and ordered Rivera-Valdes deported in absentia. After he was removed in 2006 and later reentered the country, Rivera-Valdes was charged with illegal reentry and collaterally attacked the old deportation order.

Sitting en banc, the 9th Circuit held by a six-to-five vote that Jones v. Flowers – a 2006 tax-sale case holding that the due process clause requires the government to take additional reasonable steps when certified-mail notice of a tax sale is returned unclaimed – applies in immigration removal proceedings too, and remanded for the district court to decide whether further practicable steps were available and whether Rivera-Valdes can satisfy the other requirements for a collateral attack under 8 U.S.C. § 1326(d) (the “Reentry of removed aliens” statute).

The government argues that Jones v. Flowers does not justify requiring the government do more than Congress specified in attempting to serve immigrants with the hearing notice. It argues that Congress’ certified-mail scheme for in absentia deportation orders was constitutionally adequate and that demanding immigration officials go beyond the statute whenever mail comes back will encourage evasion and unsettle old removal orders. Rivera-Valdes responds that there is less here than meets the eye: there is no circuit split, as all 11 en banc judges agreed that Jones supplies the governing due-process framework, the case is interlocutory (non-final), the district court has not yet resolved what additional steps were practicable or other § 1326(d) issues, and the particular certified-mail statute at issue was superseded three decades ago (now the statute provides for service by regular mail). That of a government petition on an immigration matter and a closely divided 9th Circuit en banc decision is usually enough to get attention. But the absence of a clean split, the changed statutory setting, and the remand posture may leave the court wondering whether this is the case to decide how far Jones travels once it leaves the tax collector’s office.

A pro se prisoner petition with legs

Maxwell v. Thomas presents the sort of humble-looking prisoner case that occasionally hides a real cert-worthy issue under a mountain of administrative-remedy paperwork. William Maxwell, a federal prisoner, filed a pro se petition – and, it must be said, a remarkably good one, complete with a circuit-split argument and an eye for vehicle problems (issues that might prevent a clean legal resolution) – arguing that the Bureau of Prisons wrongly refused to credit him under the First Step Act in a way that would have allowed earlier transfer to a halfway house or home confinement. As relevant here, the district court dismissed his claims for failure to exhaust administrative remedies/adhere to the correct legal procedure. The U.S. Court of Appeals for the 5th Circuit did not reach the exhaustion issue; instead, relying on its “bright-line rule” from the 2020 case of Melot v. Bergami, it held sua sponte that Maxwells’ habeas petition is unavailable unless success would automatically shorten the prisoner’s sentence, rather than merely reduce the level of custody.

Maxwell argues that the 5th Circuit’s decision cannot be squared with language in 2022’s Jones v. Hendrix stating that habeas relief is available for a prisoner to argue that he is “being detained in a place or manner not authorized by the sentence” or that he “has unlawfully been denied parole or good-time credits,” as well as with other decisions allowing habeas challenges to the execution, place, or manner of confinement. He also alleged his case implicated a circuit split. The government waived its right to file a response, but the court ordered it to do so anyway. The government needed four extensions before filing.

The government concedes that the 5th Circuit’s determination that petitioner could not challenge BOP’s execution of time credits under the First Step Act through a habeas petition was “inconsistent with language in … Jones v. Hendrix.” It nevertheless states that review is unwarranted for two reasons: Maxwell failed to exhaust his administrative remedies, and the decision below reflects intracircuit tension between Melot v. Bergami and an unpublished decision in Cheek v. Warden, holding that a Section 2241 habeas petition (like this one) is an appropriate vehicle to raise a home-confinement request under another act (the CARES Act).

After the court called for a response, Masha G. Hansford of Davis Polk (joined by lawyers from her former firm Paul Weiss) swooped in to file the reply brief, which gives the case a more conventional Supreme Court polish while preserving the basic point Maxwell had already spotted. The reply argues that the government essentially concedes both a conflict and the merits: the U.S. Courts of Appeals for the 1st, 2nd, and 3rd Circuits allow prisoners to use Section 2241 to seek a less restrictive form of custody, while the U.S. Courts of Appeals for the 5th and 8th Circuits require such claims to proceed, if at all, through civil-rights litigation – an especially unpromising route for federal prisoners.

That’s all for this week. Check back on Monday to see whether the court serves up some grants or just another helping of relist purgatory.

New Relists

Dershowitz v. Cable News Network, Inc., 25-770

Issues: (1) Whether a defendant’s systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice under New York Times Co. v. Sullivan, sufficient to survive summary judgment; (2) whether the actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify Sullivan’s clear-and-convincing and burden-of-proof evidentiary standards.

(Relisted after the May 21 conference.)

United States v. Rivera-Valdes, 25-972

Issue: Whether service of a notice of the time and place for deportation proceedings, sent by certified mail to an alien’s self-reported address consistent with statutory notice procedures under the Immigration and Nationality Act, is constitutionally adequate to support the entry of an in absentia deportation order as contemplated under 8 U.S.C. 1252b(c).

(Relisted after the May 21 conference.)

Maxwell v. Thomas, 25-5930

Issues: (1) Whether disputes regarding the calculation of an inmate’s earned First Step Act time credits, enabling the inmate to transfer into a halfway house or home confinement earlier, are actionable under 28 U.S.C. § 2241; and (2) whether, given all the obstruction of the administrative remedy process that took place in this case, under Perttu v. Richards, exhaustion of administrative remedies is interwoven into the underlying claims, creating a fact issue for a jury.

(Relisted after the May 21 conference.)

Returning Relists

Gator’s Custom Guns, Inc. v. Washington, 25-153

Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Duncan v. Bonta, 25-198

Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Viramontes v. Cook County, 25-238

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

National Association for Gun Rights v. Lamont, 25-421

Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Grant v. Higgins, 25-566

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Whitton v. Dixon, 25-580

Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.

(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

City of Los Angeles v. Estate of Hernandez, 25-538

Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.

(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Florida v. California and Franchise Tax Board of California, 22O163

Issue: Whether Title 18, Section 25137(c)(1)(A) of the California Code of Regulations violates the Constitution’s commerce clause, import-export clause, and due process clause.

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Alabama v. Sykes, 25-847

Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Alabama v. Powell, 25-848

Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

E.D. ex rel. Duell v. Noblesville School District, 25-906

Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, and May 21 conferences.)

Smith v. Kind, 25-943

Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.

(Relisted after the Apr. 17, April 24, May 1, May 14, and May 21 conferences.)

McCarthy v. Hernandez, 25-748

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.

(Relisted after the Apr. 24, May 1, May 14, and May 21 conferences.)

Walters v. Coleman, 25-867

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act and the party-presentation principle by granting habeas relief based on its de novo review of the state court’s decision; and (2) whether the 4th Circuit violated AEDPA and the party-presentation principle by granting habeas relief on a state-court judgment that was not before it.

(Relisted after the May 14 and May 21 conferences.)

Overview: the numbers, and a surprising(?) observation

By my count, about half (30 of the cases that the court will decide this term after full briefing and oral argument (about 58 total)) are what I call “criminal law and related” (CLAR). That is, they involve either issues that are important to criminal law litigators, or they involve facts that speak to “criminal” behavior. If you add five criminal law “summary” decisions already announced (that is, cases decided without oral argument, usually issued “per curiam” without an identified justice as the author), that makes 34 CLAR decisions for the October Term 2025. (The Supreme Court’s annual term begins in October of one year and runs until October of the next year.)

Thirteen of this term’s cases involve what I call “pure” criminal law issues, and another five are important for immigration law, a topic often bound together with criminal law implications. Thirteen of the 30 argued criminal cases have already been decided. So the coming weeks, starting this Thursday, should reveal a large number of decisions important to anyone interested in criminal law.

Of the 19 CLAR cases that remain to be decided, I would say that six are “big” cases that should draw your attention (briefly summarized below). Another four immigration cases still await decision (including the birthright citizenship case). This is undoubtedly going to be a big term for immigration cases, unsurprising in the wake of the Trump administration’s intensified focus on both lawful and unlawful immigrants.

This term, like last term, does not match popular tropes

Here’s one final observation that may surprise some current court critics. As I explained after last year’s term ended, the results in criminal law cases often quietly go, these days, in directions that liberals might prefer. Last term this was true in 10 of the 14 “pure” criminal law cases. This term, so far, 10 of the 13 decided criminal law decisions have gone in either the defenses’, or the “liberal,” direction. Here is a shorthand list of the 10, with hyperlinks to the SCOTUSblog case pages: Villarreal v. Texas; Barrett v. United States; Bowe v. United States; Ellingburg v. United States; Case v. Montana; Hencely v. Fluor Corporation; Rico v. United States; GEO Group v. Menocal; Urias-Orellana v. Bondi; First Choice v. Davenport; Olivier v. City of Brandon; Havana Docks v. Royal Caribbean; and Hamm v. Simth. 

Some decisions not involving pure criminal law issues can be hard to characterize: for example, should the decision in favor of an American company regarding property seized after the 1959 Cuban Revolution be described as liberal or conservative these days? And of course, the liberal imbalance may not continue as more controversial decisions that often occupy the end of a term roll out; current immigration cases seem to lean decidedly against immigrants. Still, the presence of “wild card” justices, and careful case selection decisions influenced by the three liberal justices behind the scenes (something I need to further write about), present a more defendant-friendly picture in criminal cases than the court’s liberal critics might imagine. I’ll be back this summer to report on the final term results. 

Important criminal law cases awaiting decision

More decisions will be released this Thursday, and three cases argued in November have not yet been issued (an unusually long wait). You can follow the court’s opinion announcements on SCOTUSblog’s live feed starting at 9:30am eastern – shamefully, there is no live audio or video of opinion announcements even though the justices publicly take the bench when they deliver them. Watch for decisions in Landor v. Louisiana Department of Corrections and Public Safety (civil damages in prisoner religious civil rights lawsuit), and Rutherford v. United States and Fernandez v. United States (permissible grounds for re-sentencing in compassionate release cases).

Two important gun rights cases should also be decided soon. In United States v. Hemani, the defendant was charged with violating a federal law prohibiting possession of a weapon by “an unlawful user of or addicted to any controlled substance.” The U.S. Court of Appeals for the 5th Circuit held that provision unconstitutional under the Second Amendment, and at oral argument, the justices seemed skeptical about applying this broad statute to, at least, the facts of this case (Hemani told FBI agents that he used marijuana roughly every other day). Expect a pro-defendant decision narrowing the statute’s interpretation if not striking it down entirely (would that be a liberal or conservative result?). Meanwhile, in Wolford v. Lopez, the court is examining a Hawaii law prohibiting possession of a firearm on private property that is open to the public (imagine gas stations, restaurants, etc.) unless the property owner has expressly given permission. As in Hemani, many hypotheticals offered at oral argument point toward a decision favoring gun owners.

Three other criminal cases involving very different questions will likely resolve significant questions. In Abouammo v. United States, the justices will announce how the Constitution’s venue rules – that is, the Article III and Sixth Amendment requirements that criminal cases be tried in the district where the crimes “have been committed” – apply to a case where the defendant acted outside the state where he was charged, but with knowledge that his actions would be received and felt in the district that ultimately charged him. And in Hunter v. United States, the court will decide when a waiver of appeal given by criminal defendants in return for a plea bargain should have an implied exception for “miscarriages of justice.”

Meanwhile, Pitchford v. Cain involves, like most habeas corpus challenges to death penalty convictions, very specific facts in a very lengthy record. The underlying issue is whether four of five potential Black jurors were stricken based on their race – by the same local prosecutor who was found to have unlawfully struck Black jurors in the 2019 case of Flowers v. Mississippi, with the same trial judge and the same “W” and “B” markers next to jurors’ names. The Mississippi courts ruled, however, that Pitchford’s lawyer had waived the issue by not objecting vociferously enough, and Mississippi now argues that that technical ruling blocks federal courts from reaching the issue of race discrimination. The idea that Terry Pitchford was sent to death row in Mississippi 20 years ago by a racist prosecutor is strong. Yet the intricacies and federalism implications of federal habeas review of state court judgments are also a serious thicket. The court’s decision in Pitchford is likely to be deeply divided as the justices try once again to clarify rules for the evaluation of claims of racial bias in jury selection.

Finally, in what is likely to be one of the last decisions issued this term, in Chatrie v. United States the justices are struggling over how the quarter-millennium-old Fourth Amendment should apply to modern wireless location data, when used by the government to issue “geo fence” search warrants issued to cellphone data carriers. The carriers then go through the data files of millions of customers, to pin down specific individuals who were at a particular location at a particular time and day. Two hours of oral argument revealed mainly that no one is quite sure how to write perfect rules, with a “go slow and narrow” viewpoint perhaps controlling.

One big case that wasn’t

Back in September I previewed Hamm v. Smith as one of the most important criminal law cases facing the court this term. The court had already granted and remanded this Alabama death penalty case back to the U.S. Court of Appeals for the 11th Circuit in 2024, and then granted full review after the appellate court affirmed a finding that Joseph Clifton Smith was too intellectually disabled to be constitutionally executed. Three justices appeared ready to overrule the 2002 precedent (Atkins v. Virginia) that set the constitutional prohibition on executing the “mentally retarded” (the term then used). Initially, 14 states filed to support that result; on the second go-round 18 states asked the court to “scal[e] back” Atkins if not overrule it. At oral argument last December, former Attorney General Seth Waxman forcefully argued for Smith, and assistants to the solicitor general of the United States and Alabama both argued for a result that would allow Smith to be executed. The divided justices gave no hint of a firm result.

Then last week the court dismissed the case as “improvidently granted” (a DIG order), a rare result that happens once a term or fewer. A DIG has no precedential effect; it is as though the court had never granted review of the case in the first place. Nevertheless, Justices Sonia Sotomayor, concurring, and Thomas and Alito, dissenting, provided 62 pages of explanation of their competing views. This DIG seems clearly to be based on an inability to find any consensus position on precisely how to consider and evaluate IQ tests (which seem to embody a fair amount of imprecision) for establishing mental disability in an execution case.

Although the procedural foundation or details about the effect of a DIG (is it the same as a denial of certiorari?; do similar time limits or other quirks apply?) are unexplained in the Supreme Court’s rules and unexplored in the literature, the result seems to be clear and undisputed: it leaves in place the 11th Circuit’s ruling, which was to affirm the district court’s judgment that Smith cannot be executed. This is of course a “big” deal for Smith, and also for capital penalty litigators. One imagines that the lack of consensus among the justices is clear enough that they are unlikely to grant review in an intellectual disability case anytime soon. So capital litigators may now feel some freedom in making highly individualistic arguments for mentally disabled clients without fear of certain high court reversal.

Conclusion

The foregoing addresses just a few of the 19 criminal law and related cases remaining to be decided by the Supreme Court this year, almost certainly by the end of June (although I personally would like to see the birthright citizenship executive order struck down on July 2, the day before our recognized Independence Day holiday weekend). The next five weeks will be packed with Supreme Court decisions and commentary. Like many – last week there were over 3,000 live participants, and that number will rise as final opinion days arrive – I will be tuning in to SCOTUSblog’s live online coverage on decision days to get immediate information, as well as comments, about case results and opinion details. “See” you there!

But these two First Amendment stories are not the same. The court’s speech cases are often favorable towards speakers, but speech claimants do not win uniformly. Religion is more consistent. Across the Roberts court, religious claimants have done unusually well. That pattern predates Justice Amy Coney Barrett, but it has become sharper since she joined the court. And when cases sit at the boundary between speech and religion, the claimant often fares especially well.

The takeaway is that the Roberts court, particularly post-Barrett, is not simply pro–First Amendment. It is more precise to say that the court is often pro-speech, strongly pro-religion, and most consistent when speech overlaps with religious identity or conscience. That distinction is fundamental for understanding the court’s current direction, including its decision to hear the case of St. Mary Catholic Parish v. Roy, which challenges long-standing religious precedent. 

The basic pattern

In seeking to understand the Roberts court’s First Amendment jurisprudence, I separated cases into three categories.

First are formal religious cases, which include free exercise, establishment clause, Religious Freedom Restoration Act, Religious Land Use and Institutionalized Persons Act, ministerial-exception (a doctrine which bars ministers from suing churches and other religious institutions for employment discrimination), religious-accommodation, and religious public-benefit cases.

Second are “pure” speech cases, which include campaign finance, retaliation, government speech, student speech, commercial speech, public-employee speech, donor disclosure, trademark, compelled-speech, and online platform cases.

Finally are what I call religion-adjacent speech cases, or speech cases that involve religious speakers, religious institutions, conscience-based claims, or religiously inflected expression; that is, speech claims connected to religious identities or religious institutions.

Religious claimants triumphant

The win-rate contrast is the article’s cleanest empirical point. Before Barrett joined the court, from 2005-2019, religious claimants or parties won 10 of 12, or 83%, of formal religious cases – a very high, although not perfect, percentage of cases. (If one does not count Zubik v. Burwell as a religious case, in which certain religious institutions challenged the Affordable Care Act’s birth control provisions, this number rises to 10 of 11, or 91%.) In the Barrett era, formal religious claimants are six for six.

The broader religion-related category is even stronger. When religion-adjacent speech cases are included, pre-Barrett claimants won 12 of 15, or 80%, of such cases. In the Barrett era, they have won 10 of 10 of these.

By contrast, speech-primary claimants won 25 of 46, or 54%, pre-Barrett cases and 10 of 19, or 53%, Barrett-era cases. Pure speech cases, excluding religion-adjacent disputes, are even more mixed: 23 of 43, or 53%, pre-Barrett claimant wins, and 6 of 15, or 40%, Barrett-era claimant wins.

These numbers show a court whose speech jurisprudence is thus a good deal more conditional than its religion jurisprudence.

Religion as the more consistent track

As noted above, the majority’s siding with religion-related claimants began before Barrett joined the court. In the 2006 case of Gonzales v. O Centro, the court protected sacramental religious practices, including the use of hallucinogens, under RFRA. In 2012’s Hosanna-Tabor v. EEOC, it recognized the ministerial exception, protecting religious employers from employment discrimination suits. In the 2014 case of Burwell v. Hobby Lobby, it applied RFRA to closely held corporations objecting to the Affordable Care Act’s contraceptive mandate. In 2015’s Holt v. Hobbs, it protected prisoner religious exercise under RLUIPA. In the 2017 case of Trinity Lutheran v. Comer, the court held that a church could not be excluded from a public-benefit program because of its religious status. Espinoza v. Montana Department of Revenue then extended that logic to religious schools, and Our Lady of Guadalupe v. Morrisey-Berru strengthened religious institutional autonomy.

The Barrett-era cases make the pattern more categorical. 2020’s Tanzin v. Tanvir allowed damages under RFRA against federal officials for violating persons’ free exercise rights. Ramirez v. Collier, decided in 2021, protected religious touch and prayer in the execution chamber. 2022’s Carson v. Makin protected religious schools from exclusion when it came to state tuition assistance. That same term, Kennedy v. Bremerton School District protected a coach’s ability to pray at a public school event. Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, decided last term, rejected a state’s narrow definition of when an entity operates for “religious purposes.” And Mahmoud v. Taylor, also decided last term, sided with religious parents challenging a school policy that denied opt-outs for readings of “LGBT+-inclusive storybooks.”

This shift may be described as a move from “accommodation” to “priority.” Accommodation implies limited carve-outs from general rules; that is, drawing narrow lines to protect religious institutions but not reconsidering the rules themselves. Priority better captures the current pattern: when religious identity, religious institutional autonomy, or religious participation in public programs is at stake, the court increasingly supports the legal framework of the religious claimant’s position, questioning the rules themselves rather than simply how they have been applied.

One important feature of these cases is that the Roberts court’s First Amendment shift has not always (or even often) occurred through formally overruling precedent. In the case coding (by the Supreme Court Database) relatively few decisions are marked as openly altering existing case law. The court has more often changed First Amendment law by invalidating statutes, narrowing old tests, or reclassifying the dispute. The result is a court that transforms the field by deciding anew what counts as religious accommodation or exercise that is to be protected from state interference.

Speech is protective but context-dependent

Speech is the larger set of cases, but it has been less uniformly protected. The Roberts court has issued major pro-speech rulings in campaign finance and political spending cases, such as (most famously) Citizens United v. FEC and McCutheon v. FEC. It has also protected donor privacy in Americans for Prosperity Foundation v. Bonta; offensive or controversial expression in Snyder v. United States, Matal v. Tam, and Ianca v. Brunetti; claimants that claimed they were retaliated against for their speech in Heffernan v. City of Paterson, Lozman v. City of Riviera Beach, NRA v. Vullo, and Gonzalez v. Trevino; and student off-campus speech in Mahanoy Area School District v. B.L.

But the court has also rejected many speech claims in a range of areas. Garcetti v. Ceballos limited public-employee speech. Morse v. Frederick upheld discipline for student speech. Beard v. Banks upheld prison restrictions. Pleasant Grove v. Summum and Walker v. Texas Division treated contested expression as government speech, allowing this to be regulated. Williams-Yulee v. The Florida Bar upheld a judicial-campaign solicitation rule. Houston Community College v. Wilson rejected a First Amendment claim based on official censure. City of Austin v. Reagan National Advertising upheld a sign regulation. United States v. Hansen kept an immigration-related statute in place criminalizing "encourag[ing] or induc[ing]" illegal immigration (after narrowing it). Vidal v. Elster upheld a trademark-registration limit. Free Speech Coalition v. Paxton upheld Texas’ adult-content age-verification law. And TikTok v. Garland upheld the federal TikTok divestiture statute against a First Amendment challenge.

These decisions make sense given the court’s current trajectory. The majority of justices are especially skeptical of viewpoint discrimination (that is, bans on a particular opinion or perspective), campaign-finance restrictions, compelled speech, donor-disclosure burdens, and retaliation based on one’s speech. But it is more deferential when the government is an employer, educator, prison administrator, program manager, regulator, or acting on the basis of national security.

That is the key contrast with religion. Speech claimants win often, but their success depends heavily on context. Religious claimants, by contrast, have prevailed across a much wider range of institutional settings.

Barrett, religion-adjacent speech, and the new priority

Of course, Barrett did not create the Roberts court’s religion trajectory. As described, the pre-Barrett court had already decided many major cases for religious claimants. But Barrett’s arrival gave the court a stable six-justice conservative majority, making religion-protective outcomes even more secure in contested cases. Indeed, per term, formal religion cases rose from about 0.80 before Barrett to about 1.00 after Barrett. Religion-adjacent speech cases rose from about 0.20 per term to about 0.67 after Barrett. And the combined religion and religion-adjacent category rose from about 1.00 case per term to about 1.67 after Barrett.

The new majority obviously matters in cases like Carson, Kennedy, and Mahmoud, where the court divided 6-3. But the story extends beyond bloc-based voting. Some religion or religion-adjacent wins have been unanimous or near-unanimous. The result is a court whose religion-protective direction is sometimes ideologically divided and sometimes broadly shared.

St. Mary and the future of Smith

That brings the story to St. Mary Catholic Parish v. Roy. That case concerns Catholic preschools excluded from Colorado’s universal preschool program because they follow Catholic teachings in admissions and related policies. The grant is important because it gives the court another opportunity to address the reach of 1990’s Employment Division v. Smith, a much-debated decision that held the First Amendment’s free exercise clause is not generally violated when a challenged law is not generally applicable; that is, it does not target a specific faith group or religious practice.

The court did not grant review on the broadest question: whether Smith should be overruled. That might seem like restraint. But, as explained, in the Roberts court’s religion jurisprudence, formal restraint often coexists with practical transformation.

That is why St. Mary matters even if Smith survives. For example, the court could rule that Colorado’s program is not generally applicable because it contains exemptions or discretionary features. It could treat the exclusion as discrimination against religious participation involving a public benefit. Or it could blend those approaches. But any of those paths would leave Smith formally standing while making it less important in practice.

And that outcome would fit the Roberts court’s broader First Amendment jurisprudence. Its protection of speech remains significant, but uneven. Religion has become more consistent, more prioritized, and increasingly central to the court’s constitutional identity. Since Barrett joined the court, formal religion claimants and religion-adjacent speakers have prevailed with remarkable regularity. The court may not describe this as a religious-liberty revolution. But the data points only in that direction.

The future of the First Amendment is therefore likely to remain bifurcated. Speech claimants will continue to win in important areas, especially where the court sees censorship, retaliation, compelled speech, or viewpoint discrimination. Yet religious claimants will remain among the most favored litigants before the court, particularly when public benefits, religious schools, parental rights, religious conscience, and institutional autonomy are involved. St. Mary may not kill Smith. But it will likely further demonstrate why the court no longer needs to.

At the Court

The Supreme Court on Tuesday sided with the Trump administration in a dispute over immigration judges’ speaking engagements, declined to serve as the court of first review in Florida’s challenge to other states’ policies on driver’s licenses for immigrants, and denied a few notable petitions for review. For more on Tuesday’s order list, see the Morning Reads and On Site sections below.

The court has indicated that it may announce opinions on Thursday at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.

Morning Reads

Court Rejects Alabama House Map, Calling It Unfair to Black Voters

Emily Cochrane and Abbie VanSickle, The New York Times (paywalled)

“A panel of federal judges on Tuesday rejected Alabama’s effort to use a new voting map for the November midterm elections, saying that the districts discriminated against Black people and could not be used so shortly before a vote,” according to The New York Times. The Supreme Court had sent the dispute over Alabama’s map back to the panel for another look in light of the court’s ruling in Louisiana v. Callais, which “sets a high standard to challenge maps for race discrimination.” “The lower court judges made clear that they had reviewed the arguments through the lens of” Callais “but maintained that the state’s map failed under the new standard by intentionally discriminating against Black voters.” “Alabama’s attorney general, Steve Marshall, announced in a court filing Tuesday afternoon that he would immediately appeal to the Supreme Court.”

South Carolina Senate blocks redistricting plan in blow to Trump

Julia Mueller, The Hill

After the Supreme Court released its Callais ruling, “Republicans in the South Carolina state House voted ... to approve new congressional lines,” according to The Hill. But on Tuesday, state senators blocked the House plan, “putting a pin in the state’s GOP-led redistricting push amid the national back-and-forth ahead of the midterms.” “I can no longer support the passage of this bill for one simple reason: South Carolina citizens are going to the polls today,” Republican state Sen. Richard Cash said in a press release. “Neither my conscience nor common sense will allow me to stop an election that has already begun.” The Hill noted that “Tuesday’s move effectively blocks the plan from further action before the midterms, but the state Senate could pick the matter up again next session.”

Supreme Court rejects Michigan police officer's bid to toss out an excessive force claim from a George Floyd protest

Lawrence Hurley, NBC News

On Tuesday, the court announced that it will not weigh in on “a Michigan police officer’s attempt to evade an excessive force claim arising from an incident that took place during a protest in the aftermath of the George Floyd killing,” according to NBC News. Sean Hart sued officer Phillip Reinink after being hit and injured by a tear gas canister that was “designed to be fired into the air,” not toward protesters. Reinink contends that the suit should be barred by the “legal doctrine of qualified immunity, which often protects police officers from civil rights claims alleging they violated individuals’ constitutional rights.” As a result of the Supreme Court’s decision, a May 2025 ruling from the U.S. Court of Appeals for the 6th Circuit holding that Hart’s case against Reinink can proceed will remain in place. “Two conservative justices, Clarence Thomas and Samuel Alito, noted they would have ruled in favor of Reinink.”

Supreme Court rejects NFL's bid to step into coach Brian Flores' racial discrimination suit

Melissa Quinn, CBS News

In early 2022, coach Brian Flores filed a “landmark racial discrimination lawsuit” against the NFL and three of its teams, alleging that “the league had discriminated against him and other Black coaches based on their race and denied them coaching and general manager positions.” Soon thereafter, the suit expanded to include two other coaches and additional teams. “In response to the lawsuit, the NFL and teams sought to compel arbitration based on the coaches’ employment contracts and a provision of the NFL Constitution that gives the NFL commissioner, [Roger] Goodell, authority to arbitrate disputes between coaches and member clubs,” according to CBS News. A federal judge and then the U.S. Court of Appeals for the 2nd Circuit sided in part with the league and in part with the coaches, holding that some of Flores’ claims could move forward in federal court. On Tuesday, the Supreme Court denied the NFL’s request for it to review the 2nd Circuit’s ruling, clearing the way for part of the case “to move forward in open court instead of arbitration.”

Supreme Court Clerk Hiring Watch: Feeder Frenzy

David Lat, Original Jurisdiction (paywalled)

In a post for his Substack, David Lat offered an update on Supreme Court clerk hiring. Among the takeaways is that Yale Law School, the University of Chicago Law School, Stanford Law School, the University of Notre Dame Law School, and Harvard Law School “sent the most grads to coveted clerkships in 2025” (based on a percentage of the class, rather than the raw number of clerks). (The actual names of the latest hires are behind Original Jurisdiction’s paywall.)

On Site

From the SCOTUSblog Team

Court sides with Trump administration in dispute over immigration judges, declines to hear Florida suit against other states over immigrant driver’s licenses

The Supreme Court on Tuesday morning reversed a ruling by a federal appeals court that had revived a dispute over a policy governing speaking engagements by immigration judges. In a list of orders from the justices’ private conference last week, the court also declined to serve as the court of first review for Florida’s contention that California and Washington are allowing undocumented immigrants to obtain commercial driver’s licenses.

From the SCOTUSblog Team

The Supreme Court’s drug test

The Supreme Court is expected to rule soon in United States v. Hemani, a closely watched case addressing drug users’ gun rights. When it does, the ruling will likely reignite not just the debate over how the court approaches the Second Amendment, but also the debate over how justices rule in cases involving drugs, and whether they apply a different standard in such cases.

SCOTUS Outside Opinions

How Callais broke the Voting Rights Act and weaponized the equal protection clause: part 1

Much of the reporting on Louisiana v. Callais suggests the court stopped short of finding Section 2 of the Voting Rights Act (which prohibits racial discrimination in voting) unconstitutional. According to Issa Kohler-Hausmann and Kevin Z. Yang, Callais did something far more extreme: it rewrote the VRA, and in doing so, made vote-dilution claims impossible.

Podcasts

Advisory Opinions

SCOTUS Through the Decades | Interview: Nina Totenberg

Sarah Isgur and David French discuss an anticlimactic DIG from the Supreme Court over IQ tests and the death penalty, as well as challenges to the Trump administration’s $1.8 billion slush fund on weaponization. Plus, they talk with NPR’s Nina Totenberg about covering the Supreme Court.

Ask Amy

On Tuesday's order list, Justice Ketanji Brown Jackson recused herself from the decision whether to grant review in U.S. Conference of Catholic Bishops v. O'Connell, citing "prior judicial service.” But on the same day, Justice Samuel Alito recused himself in Union Carbide Corp. v. Sommerville without providing any explanation. Are the justices required to explain their decisions to recuse themselves and, if not, why do some do so but not others?

The justices are not required to explain why they do not participate in a particular case, although some do, as this example from Jackson – who served on the district and appeals courts in Washington, D.C., for nine years before joining the Supreme Court – illustrates. Justice Elena Kagan, who served as the U.S. solicitor general for a year before she was confirmed to the court, also often attributes her recusals to "prior government service."

In an appearance at the SCOTUSblog Summit last fall, Justice Amy Coney Barrett discussed the reasons why the justices might not want to explain why they are recusing. She noted that sometimes the decision to recuse can also affect (and bring attention to) a justice's friend or family member. As a result, she said, she was inclined to err on the side of not providing any explanations, because you "don't know what might arise in the future."

SCOTUS Quote

JUSTICE SCALIA: “Well, so, if there is one State that would not have an adequate remedy for any – any single bad thing that could happen in prison, there's a Bivens action for everybody for everything? Is that what you're saying?”

MR. PREIS: “Yes, Your Honor, we are.”

JUSTICE SCALIA: “Wow.”

MR. PREIS: “I think if the Court were to write an opinion in that case –”

JUSTICE SCALIA: “I certainly wouldn't want to hold that.”

(Laughter.)

MR. PREIS: “I'm not surprised that you wouldn't want to hold that, Your Honor.”

(Laughter.)

JUSTICE BREYER: “I would find that rather surprising, too, actually.”

— Minneci v. Pollard (2011)

The justices did not add any new cases to their docket for the 2026-27 term. They will meet again for another conference on Thursday, May 28. 

The dispute over speaking engagements at the center of Margolin v. National Association of Immigration Judges began several years ago, when the National Association of Immigration Judges went to federal court in Alexandria, Virginia, to challenge the policy, which requires immigration judges to obtain permission before making any “official” speeches – such as presentations at immigration conferences and pro bono training. Immigration judges are not required to obtain clearance for speeches that they make in their personal capacity, such as speaking before community groups on topics that are not directly related to immigration. The group contended that the policy violates the First Amendment by (among other things) prohibiting “judges from sharing their private views on immigration law or policy issues, or about the agency that employs them.”

U.S. District Judge Leonie Brinkema granted the government’s motion to throw out the case. She pointed to the Civil Service Reform Act, a federal law enacted in the wake of the Watergate scandal that sets up a scheme to review federal employees’ claims that they have been subject to prohibited conduct, such as discrimination or retaliation. When it passed the CSRA, she wrote, Congress intended to take away district courts’ power to consider claims like the NAIJ’s.

The U.S. Court of Appeals for the 4th Circuit sent the case back to the district court. Although it agreed with Brinkema’s conclusion that, under the CSRA, district courts normally would not have the power to review claims like the NAIJ’s, it questioned whether the two entities where the CSRA would normally channel the NAIJ’s claim – the Office of Special Counsel and the Merit Systems Protection Board – are still working as Congress intended. Specifically, the court of appeals observed, when it issued its opinion in June 2025, the MSPB did not have enough members to take action, which would prevent it from acting on petitions for review. Moreover, the 4th Circuit wrote, although Congress intended the MSPB and the Office of Special Counsel to be independent, the Trump administration now argues that the president can remove both the Special Counsel and members of the MSPB for any reason.

The court of appeals therefore instructed the district court to determine “whether the CSRA continues to provide a functional adjudicatory scheme.” By a vote of 9-6, the full 4th Circuit on Nov. 20 rejected the government’s request to reconsider the case.

The Trump administration came to the Supreme Court in December, asking the justices to temporarily pause the lower court’s ruling while it appealed. In a brief, unsigned order, the court declined to do so.

The Trump administration soon returned to the Supreme Court, calling the case a “clear candidate for summary reversal” – that is, overturning the lower court’s decision without additional briefing or oral argument – “twice over.” The 4th Circuit, U.S. Solicitor General D. John Sauer argued, wrongly relied on an argument that the NAIJ had not made (and, he said, had in fact affirmatively waived). Moreover, Sauer said, the Supreme Court “has already held that the CSRA channels federal personnel claims to the MSPB.”

In Tuesday’s five-page, unsigned order, the justices granted the government’s request to reverse the 4th Circuit’s decision since that decision was based on an argument that the parties had not made. “Federal courts are not ‘roving commissions,’” the opinion explained, “licensed to ‘“sally forth each day looking for wrongs to right.”’ The Court of Appeals lost sight of those principles here.”

Justice Clarence Thomas, joined by Justice Amy Coney Barrett, wrote a concurring opinion in which he explained that he believed “the Fourth Circuit’s decision was also wrong on the merits.” “Neither the President’s view that he can remove federal officials, nor his having done so, change the meaning of the statute or the binding nature of this Court’s interpretation of it,” Thomas argued.

When the Trump administration appealed to the Supreme Court, the NAIJ filed its own brief, known as a cross-petition. If the court were to grant the Trump administration’s appeal, the group said, it should also weigh in on whether federal employees can file challenges to restraints on their speech directly in district court before the restraints are enforced against them. The justices denied that cross-petition on Tuesday without comment.

Elsewhere in Tuesday’s order list, the court turned down a request from Florida to file an original action – that is, a lawsuit effectively treating the Supreme Court as a trial court – against California and Washington. Such cases are rare and normally involve disputes between states over issues like water rights or boundaries.

This case involves immigration. Florida contended that the two states have not complied with federal safety regulations governing commercial driver’s licenses for (among other vehicles) 18-wheelers – and, in particular, have allowed undocumented immigrants “without proper training or the ability to read road signs” to obtain such licenses.

California urged the justices to deny Florida’s motion to file a complaint. It countered that Florida’s claims are “patently meritless”: “California law requires DMV to verify legal presence and test for English proficiency, and DMV in fact does so.” The case also does not meet the high bar required to bring a case directly in the Supreme Court, California argued: Florida cannot, for example, show that the dispute can only be resolved in the Supreme Court.

Washington called the lawsuit “a political stunt, not a real claim,” and it told the justices that Florida is guilty of the same conduct of which it now accuses California and Washington. Florida also does not have a legal right to sue, known as standing, Washington contended, because it had not shown either that Washington’s actions had harmed it or that its lawsuit could redress the problems it targets.

Thomas, joined by Justice Samuel Alito, dissented from the decision not to allow Florida’s lawsuit to go forward, writing “we cannot refuse to hear suits between States.” But even if the court has discretion to decide whether to hear such states, Thomas continued, it still should have granted Florida’s motion, because of the seriousness of the issue and because Florida has nowhere else to turn.

The justices also denied several noteworthy petitions for review, including:

• Meta Platforms v. Vermont, which stemmed from Vermont's lawsuit alleging that Meta intentionally designed Instagram to be addictive to teens. The question presented at this stage, however, related to whether Meta could be sued in Vermont based on its “business model” – specifically, selling online advertising space to others – even if the claims involved in the lawsuit do not involve that advertising.
• U.S. Conference of Catholic Bishops v. O'Connell, which arose from a lawsuit brought by a parishioner who contends that he was misled by the description of how money collected in an annual offering in the Catholic Church known as Peter's Pence would be used. As the case came to the court, the bishops had asked the justices to weigh in on issues related to church autonomy over its affairs. Justice Ketanji Brown Jackson did not participate in the case.
• New York Football Giants v. Flores, which began when former Miami Dolphins head coach Brian Flores filed a racial discrimination lawsuit against the NFL, the Miami Dolphins, the New York Giants, and the Denver Broncos. As the case came to the court, the NFL and the teams had asked the justices to decide whether an agreement to arbitrate disputes can be enforced if it designates the NFL commissioner as the arbitrator and allows him to develop the procedures for the arbitration. Justice Brett Kavanaugh indicated that he would have granted the petition for review.

The justices did not act on a petition by Harvard law professor Alan Dershowitz, who alleges that CNN defamed him by "deliberately and systematically misrepresenting his Senate floor statement" when he was serving as a lawyer for President Donald Trump during Trump’s first impeachment. Dershowitz is asking the court to overturn or modify the standard outlined in the 1964 case of New York Times v. Sullivan, in which the justices ruled that a plaintiff in a defamation case can only recover if he can show that the allegedly defamatory statement was made with “actual malice” – “that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The court will consider Dershowitz’s petition again at their conference on Thursday.

Much of the reporting on Louisiana v. Callais suggests the court stopped short of finding Section 2 of the Voting Rights Act (which prohibits racial discrimination in voting) unconstitutional. The opinion’s author, Justice Samuel Alito, took great pains to suggest as much. The court, he wrote, was not “abandon[ing]” the prior framework, that, for decades, authoritatively construed Section 2’s sweep. Instead, Alito insisted, Callais was merely an “update” to the evidence required under Section 2 to challenge racial vote dilution – the drawing of electoral districts in a way that divides or submerges minority voting power.

In truth, Callais did something far more extreme: it rewrote the VRA, and in doing so, made vote-dilution claims impossible. Perhaps even more radically, Callais may have turned the Fourteenth Amendment into a tool to undo the legacy of this transformative statute.

In this two-part series, we unpack Callais piece by piece. In Part 1, we describe how Callais eviscerated the VRA’s ability to shield against the dilution of minority voting power. In Part 2, we will explain how the case turns racial gerrymandering claims under the Fourteenth Amendment into a sword against maps enacted to comply with the VRA.

Vote-dilution claims before Callais

The Voting Rights Act of 1965 has been described as the “most important civil rights bill [ever] enacted by Congress.” For our purposes, what is relevant are the 1982 amendments to the act that Congress passed in response to Mobile v. Bolden, which held that the Constitution and the VRA outlawed exclusionary voting practices “only if motivated by a discriminatory purpose.”

The 1982 amendments sought to undo Bolden’s intent requirement. And Congress did so by outlawing voting practices that “result[]” in an abridgement of the right to vote “on account of race or color.” Such a violation occurs if “a class of citizens protected by subsection (a) . . . have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Put together, then, Section 2 (as amended) requires that the class of citizens “protected by subsection (a)” – those classified by “race or color” – have an opportunity to elect “representatives of their choice” equal to “other members of the electorate.”

This enacted what others (including the Supreme Court) call a “results” or “effects” test for vote dilution claims. Such a test requires a benchmark relative to which district boundaries dilute minority votes. If a Section 2 plaintiff claims that how a state’s congressional districts are drawn dilutes the number of House representatives that minority voters can elect, we need to know how many representatives they should be able to elect. The amended Section 2 expressly disavows perfect proportionality as a benchmark (for instance, requiring 30% of congressional districts to be majority-Black if 30% of the state is Black). But below that limit, how do we know if district boundaries unlawfully dilute minority electoral opportunity?

Enter Gingles v. Thornburg, the seminal precedent interpreting the 1982 amendments. Gingles operationalized a benchmark for Section 2 cases by laying out a series of “preconditions,” or requirements that VRA plaintiffs must meet to successfully prove racial vote dilution. The first precondition required minority voters to be sufficiently numerous and compact to constitute a “reasonably configured district” without violating “traditional districting criteria.” Traditional districting criteria include principles like compactness (roughly speaking, the shape of the district is not too weird), contiguity (all parts of the district touch; there are no disconnected islands), and the preservation of political subdivisions (keeping towns and counties in the same districts). This first precondition requires plaintiffs to produce an “illustrative map” – a proposed map that demonstrates how minority voters could constitute a majority in a district that is reasonably shaped under these criteria.

The second and third Gingles preconditions asked whether there is (what the court interchangeably called) “racially polarized voting” or “racial bloc voting.” Racial bloc voting exists if “minority group members constitute a politically cohesive unit and [] whites vote sufficiently as a bloc usually to defeat the minority’s preferred candidates.” Another way to think of racial bloc voting is just the presence of some (unspecified) high level of “voting in the districts [that is] racially correlated” – that is, white citizens tend to vote for one type of candidate and Black citizens for another. Finally, after satisfying these preconditions, the final step is an open-ended “totality of the circumstances” inquiry that asks whether the political process is “equally open” to minority voters.

Without these conditions, the shape of the district (and therefore what voters the district encompasses) cannot be responsible for the minority population’s inability to elect candidates of its choice, as opposed to the fact that the group was too geographically dispersed or that the group simply did not have discernible “representatives of their choice.” Suppose that a state wants to disadvantage the political power of Black voters vis-à-vis white voters in a jurisdiction where white and Black voters have the same distribution of political preferences. Even if the Black communities were split across different districts, the electoral outcomes wouldn’t change, because the white voters (with the same preferences) would express the same distribution of votes.

Putting these requirements together, for the past 40 years, the Supreme Court has set the benchmark for vote-dilution claims by (roughly) asking: Is it possible to draw additional districts where minority voters would elect their representative of choice, without violating traditional districting criteria?

How Callais rewrote the Voting Rights Act

With that background in hand, we can now see how Callais contorted this framework beyond recognition to extinguish Section 2’s protections. It did so by issuing two new demands, misleadingly framed as evidentiary requirements.

First, Callais held that “[t]o satisfy the second and third [Gingles] preconditions—politically cohesive voting by the minority and racial-bloc voting by the majority—the plaintiffs must provide an analysis that controls for party affiliation”; they “must show that voters engage in racial bloc voting that cannot be explained by partisan affiliation.” In other words, Alito asks for an analysis of racial bloc voting that “controls for party.” Which is to say, don’t look at whether racial groups have different preferences between parties – look at whether they have different preferences within party. Or put graphically, don’t look at Chart 1 below, look at Chart 2. He claims that this will prove whether racial bloc voting is “explained by” partisanship as opposed to race.

But these evidentiary demands about racial bloc voting either misunderstand or misrepresent Gingles. Recall that Gingles asked whether racial bloc voting was occurring because it was necessary for minorities’ diluted opportunity to elect their preferred candidates to be explained by the map design – how the district boundaries are drawn (rather than, for example, a lack of common political preferences among the minority group). Alito’s majority opinion in Callais now asks what explains racial bloc voting, demanding that plaintiffs show that racial bloc voting is “explained” by race rather than party.

But that demand is nonsensical. As we saw above, racial bloc voting is usually operationalized as white voters preferring one party and Black voters preferring another – a correlation between race and party. It makes no sense to ask whether race or party is more responsible for the correlation between the two. Conditioning the analysis on party does not prove that racial bloc voting is “explained by” partisanship as opposed to race. It just changes what kind of racial bloc voting we are looking at – from inter-party (Chart 1) to intra-party (Chart 2). So, Callais effectively declares that one kind of opportunity for minority voters – the opportunity to elect the party of their choice – cannot be a right secured by the VRA.

Second, Callais demands that plaintiffs’ illustrative maps – the maps that demonstrate a reasonably configured majority-minority district can be drawn – “must meet all the State’s legitimate districting objectives, including traditional districting criteria and the State’s specified political goals.” These “specified political goals” require the plaintiffs to accommodate a state’s preference for “a specific margin of victory for certain incumbents” or a “target partisan distribution of voters.” In other words, if Louisiana wants a 6-0 Republican map that preserves certain incumbents, Section 2 plaintiffs have to create a map that includes an additional majority-minority district – yet still produces that 6-0 result and keeps those incumbents in power.

This demand for illustrative maps that meet a state’s “specified political goals” makes Section 2 claims impossible whenever there is (1) racially polarized voting and (2) partisan gerrymandering. Imagine a state that has drawn all six of its congressional districts to be Republican despite the fact that 30% of its population is Black, and over 90% of that population votes Democratic. In that state, a Section 2 violation is logically impossible because, as Justice Elena Kagan points out in dissent, “[a]ny map with a majority-Black district will not be a map with all Republican seats.”

Alito’s stated basis for “control[ling] for party affiliation” is the court’s 2018 decision in Rucho v. Common Cause, which held that “claims of partisan gerrymandering are not justiciable in federal court.” Alito reads this holding on non-justiciability into an absolute right of paramount importance: the right of state legislatures to engage in partisan gerrymandering. Of course, nothing about Rucho compelled this outcome. Rucho was premised on the supposed lack of a legal standard to adjudicate partisan gerrymandering, because the question – “How much partisan dominance is too much?” – raised a fundamentally political, not legal, question. But in racial vote-dilution claims, there was such a standard: Section 2 of the VRA, as interpreted by Gingles. Therefore, even if we grant that Rucho was correct on justiciability, the VRA question remained – as it has always been – whether states are free to partisan gerrymander in a way that dilutes the opportunity of minority voters to elect representatives of their choice.

Alito says the answer must be yes, because otherwise “litigants can[] circumvent [Rucho] by dressing their political-gerrymandering claims in racial garb.” Alito is correct that any partisan gerrymander will automatically produce a racial gap in electoral opportunity if race and party are “closely correlated.” But Congress knew that race and party were “closely correlated”; that is the very premise upon which they legislated – to grant some measure of political power by race, below which a districting scheme would be called dilutive. Callais thus overrides Congress’ goal – that is, the VRA’s design – in favor of another principle that the court invented: the right to partisan gerrymandering.

Imagine applying that same logic in another context. Take the Religious Freedom Restoration Act of 1993, another so-called effects test that, like the 1982 VRA amendments, Congress passed to override a Supreme Court decision. Specifically, RFRA says that the federal government may not “substantially burden” a person’s exercise of religion even via neutral, generally applicable laws unless it demonstrates that the burden is the least restrictive means of furthering a compelling government interest.

Assume that the federal government passes a rule making people who do not work on Sundays ineligible for Medicaid. Assume that federal courts have held that the government may impose work requirements as a condition of Medicaid. Alito’s logic demands that to establish a RFRA violation we must “control for Sunday work compliance.” After all, the government is free to impose work requirements on any day they choose, just as states are free to gerrymander on the basis of partisanship (by way of non-justiciability). Alito’s rule would hold that there is no RFRA violation if Christians and non-Christians who both refuse to work on Sundays lose Medicaid at equal rates. But that defeats the congressional purpose of RFRA, just as Alito’s alterations to Gingles defeat the congressional purpose of the VRA.

With the VRA, Congress answered the political question that Rucho said courts were not equipped to answer: Partisan gerrymandering is “too much” when it gives minority voters less opportunity than other voters to elect representatives of their choice. A majority of the Supreme Court evidently did not like that answer. But they are only empowered to reject Congress’ answer if it violates the Constitution. And if the court believes that the VRA as written is unconstitutional, they must say that and defend the position on the merits. Here, the court utterly failed to discharge that duty. Callais purports to uphold the VRA while – at every juncture – dismantling it.

That question has come up multiple times. It emerged about 20 years ago, after the court in Gonzales v. Raich held that Congress, under the Constitution’s commerce clause, had the authority to criminalize personal, medical use of marijuana even in states where it was legal. As Anastasia Boden noted in an October 2025 SCOTUSblog column, the 6-3 ruling embraced an expansive view of federal power, and it was joined by justices who in other contexts had criticized the federal government’s effort to use the commerce clause to regulate local activity.

In particular, the Raich ruling led to a wave of commentary about whether at least some of the justices in the majority – most notably, Justices Antonin Scalia and Anthony Kennedy – were engaged in something of a war on drugs. In other words, court watchers questioned whether these justices were willing, in drug-related cases, to abandon their views on federalism or preferred methods of constitutional interpretation to ensure that drug users would lose.

After Scalia’s death in February 2016, Jacob Sullum revisited his record in such cases and analyzed whether Scalia actually deserved his reputation as an anti-drug crusader. Sullum argued that while Scalia did seem to be “driven by anti-drug fervor” in some cases, he was not a blind supporter of the federal government’s effort to end illegal drug use.

For example, in multiple Fourth Amendment cases concerning the circumstances in which law enforcement officers may conduct a warrantless search, Scalia defended the privacy rights of drug users or dealers, arguing that officers must obtain a warrant before they use “infrared technology” to search a home for heat patterns indicating indoor marijuana growth, attach a GPS device to an alleged dealer’s car, or use a drug-sniffing dog on a home’s doorstep. Scalia also wrote a fiery dissent in 1989’s National Treasury Employees Union v. Von Raab, in which the court upheld the United States Custom Service’s drug testing program, describing the service’s rules for drug testing as “a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”

But in several other, similar drug-related cases, Scalia sided with law enforcement officers or other government officials. This included Employment Division v. Smith, a major (and much criticized) free exercise case, in which Scalia penned the court’s opinion allowing Oregon to deny unemployment benefits to two men who had been fired after ingesting peyote during a Native American Church ceremony.

Sullum suggests that in Raich, specifically, it’s difficult to square Scalia’s vote with his stance in past cases unless you assume “that he shared the pharmacological phobias at the heart of the war on drugs.”

The Raich ruling also prompted a discussion of Kennedy’s votes in drug-related cases, including by SCOTUSblog’s Lyle Denniston. In a column about the ruling, Denniston observed that Kennedy’s vote against the marijuana growers “may be baffling” to those aware of “his accustomed role in supporting state power against overreaching congressional legislation.” But it’s not that surprising, Denniston continued, if you consider Kennedy’s low “tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures,” which he had established – or at least hinted at – in previous drug-related cases.

Indeed, Kennedy’s (lack of) experience with drugs was a talking point during his confirmation process, because he was nominated after Douglas Ginsburg withdrew from consideration while facing intense scrutiny for admitting to using marijuana during the 1960s and 1970s. After he was announced as the replacement nominee, a reporter asked Kennedy if he had ever smoked marijuana. “The answer,” Kennedy said, “was no, firmly no.”

After Raich, Denniston highlighted comments Kennedy made during oral argument in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, a 2002 case in which the court upheld a drug testing requirement for any public-school student seeking to take part in any extracurricular activity. Kennedy observed that “it’s hardly a revelation that the government is concerned about what drugs do to our culture. Not exactly rocket science.” Kennedy went on to join the majority opinion by Justice Clarence Thomas.

During a 2016 University of Chicago event titled “The Sweet Mystery of Anthony Kennedy,” Ilya Shapiro briefly reflected on Kennedy’s votes in drug-related cases, noting that he did not appear interested in defending the dignity of drug users (or people who did not use drugs but did not want to be subjected to drug testing) with the same urgency that he defended the dignity of others. “The only way to explain these votes is that Kennedy doesn’t see any nobility in drugs, so their users merit little constitutional protection even if they don’t hurt anybody and are confined to the privacy of the home,” Shapiro said.

Still, Kennedy, like Scalia, did not always support anti-drug measures as a jurisprudential matter. For example, in Safford Unified School District #1 v. Redding, a 2009 case in which the court held that school officials violated the Fourth Amendment when they strip-searched a 13-year-old student suspected of possessing drugs, both Kennedy and Scalia were in the majority.

The current court on drugs

The current justices have faced less scrutiny over their approach to drug-related cases, although that may have more to do with when they joined the court than what they have said and written. Many of the court’s highest-profile decisions in this area, including Raich, came between the late 1980s and early 2000s. Thomas joined the court in 1991, but no other current justice arrived before 2005.

As for Thomas, he dissented in Raich and wrote separately to criticize the majority’s view of federal power. The challengers in the case “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers,” Thomas wrote.

Thomas’ overall record in drug-related cases is complicated. He was with Scalia in the majority in the cases barring warrantless searches of suspected drug users’ homes with infrared technology and drug-detecting dogs, but dissented when the court later restricted the use of such dogs during traffic stops. And in Redding, Thomas concurred in part and dissented in part. He explained that he did not believe the challenged search violated the Fourth Amendment and emphasized that school officials should have broad authority “to maintain discipline in their schools and ensure the health and safety of the students in their charge.”

Although Chief Justice John Roberts and Justice Samuel Alito disagreed with Thomas in Redding, they have often voted in support of public officials and law enforcement officers in cases involving drugs. For example, both justices would have allowed warrantless searches with drug-detecting dogs on doorsteps, and they joined with Thomas, Scalia, and Kennedy in Morse v. Frederick, the famous “Bong Hits 4 Jesus” case, to hold that school officials did not violate the First Amendment when they confiscated a banner carrying that phrase and suspended a student who had refused to take it down. “[W]e hold that schools may take steps to safeguard those entrusted to their case from speech that can reasonably be regarded as encouraging illegal drug use,” Roberts wrote for the majority.

Among the court’s Republican-appointed justices, Justice Neil Gorsuch is perhaps the most likely candidate to rule against the government in cases involving drugs because of both his libertarian instincts and what The New York Times once described as his “relatively moderate” position on “the Fourth Amendment’s protections against unreasonable searches.” But, as noted above, the court’s most notable cases involving drugs were decided before the latest justices joined the court, which explains why Gorsuch’s – as well as Justices Brett Kavanaugh’s and Amy Coney Barrett’s – drug-related jurisprudence is still taking shape.

Depending on how the court rules, Hemani may trigger a reassessment of the court’s reputation in this area. The case centers on a federal law that prohibits gun possession by users of illegal drugs. Ali Danial Hemani, who was charged with violating it after he told FBI agents that he smoked marijuana about every other day, contends that the law violates his rights under the Second Amendment.

Going into the Hemani oral argument on March 2, it seemed likely that the discussion would include at least a few Kennedy-like observations about the dangers of illegal drug use. But as Amy Howe noted in her argument analysis, the court appeared to be more skeptical of the federal government’s position than Hemani’s, with several justices, including Thomas, raising concerns about the law’s broad scope.

At oral argument, the justices put forward a colorful array of hypothetical scenarios involving the use of THC gummies, anabolic steroids, sleeping pills, and psychedelics. For example, Gorsuch urged Principal U.S. Deputy Solicitor General Sarah Harris to explain why the government believes someone who takes a THC gummy every other night in a state where such gummies are legal is a habitual drug user who can be barred from possessing a gun. And Justice Elena Kagan asked Erin Murphy, who argued on behalf of Hemani, about whether someone using ayahuasca – which Kagan described as “a very, very, very intense hallucinogen” – could be prevented from having a gun even though it is not considered addictive and would not affect someone’s behavior once the “episode” is over. Barrett later sparked a burst of laughter in the courtroom when she referred back to Kagan’s question and asked whether ayahuasca is a real drug.

Although the justices stumbled at times over drug-related terms, they did not sound quite as judgmental as some of their predecessors.

At the Court

On Thursday, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from that conference are expected this morning at 9:30 a.m. EDT.

The court has indicated that it may announce opinions on Thursday at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.

Morning Reads

Oral arguments are taking forever. Supreme Court justices have had enough

John Fritze, CNN

Oral argument sessions at the Supreme Court are getting longer, and it’s prompting a debate about whether something needs to change. “The average length of arguments in the current term clocked in at just under 90 minutes, according to a CNN analysis. That’s up nearly 10 minutes from the term that began in 2020, when the court heard arguments remotely because of the pandemic.” Chief Justice John Roberts and Justice Samuel Alito recently have shared their interest in finding a way to shorten arguments, while Justice Clarence Thomas has joked that he could sit in the courtroom “all day.” Emory University law professor Tonja Jacobi told CNN that part of the value of argument sessions is that they help regular people better understand the court’s work but noted that longer arguments “become a little less accessible.”

Supreme Court’s John Roberts Faces Impeachment Resolution from Democrat

Jason Lemon, Newsweek

On Thursday, Rep. Steve Cohen, a Democrat from Tennessee, introduced a “long-shot effort” to impeach Chief Justice John Roberts “centered on allegations that the Supreme Court under his leadership has acted in a partisan and inconsistent manner,” according to Newsweek. “In a statement announcing the resolution, Cohen said that Roberts has led the court to be ‘understood as biased: with decisions designed to benefit Republicans at the expense of representative government, seemingly contradictory and unexplained orders, and a pattern of ethical breaches that raises questions about the role of the wealthy.’”

US Companies Shamed by Trump Tiptoe Into Tariff-Refund Race

Laura Curtis, Rachel Phua, and Ignacio Gonzalez, Bloomberg (paywalled)

According to a Bloomberg analysis, “[o]nly about 5% of the 3,000 largest publicly traded US companies mentioned refunds in the context of President Donald Trump’s now-illegal tariffs in recent comments and regulatory filings.” Bloomberg noted that such companies are staying quiet about tariff refunds in hopes of reducing “the risk of political and legal jeopardy” that comes with claiming them. That risk became clear when President Donald Trump “paint[ed] refund backers as unpatriotic after the Supreme Court struck down” his signature tariffs. “Saying too much about refunds invites not just Trump’s scorn but also legal challenges from consumers clamoring for a piece of the payout.”

Mahmoud Khalil to Appeal to Supreme Court in Effort to Halt Deportation

Jonah E. Bromwich, The New York Times (paywalled)

On Friday, the full U.S. Court of Appeals for the 3rd Circuit declined to review the case of Mahmoud Khalil, “a Columbia University graduate who was arrested by Immigration and Customs Enforcement agents last March and quickly became the face of President Trump’s crackdown on pro-Palestinian campus demonstrators.” Khalil, “a legal permanent resident who is married to an American,” had asked the full 3rd Circuit to revisit a panel’s decision allowing his case to proceed in immigration court without a federal district court first weighing in on the constitutional issues involved, according to The New York Times. “Mr. Khalil’s lawyers have already asked the Third Circuit to halt the impact of its Friday decision while they appeal to the Supreme Court on those jurisdictional issues.”

Lawyers challenge Roundup cancer settlement as Supreme Court ruling nears

Maureen Groppe, USA Today

As Monsanto awaits a Supreme Court ruling that may bar users of its Roundup weedkiller from suing it for not including a cancer warning on Roundup’s product label, the company is pursuing a separate effort to resolve such lawsuits: a $7.25 billion class-action settlement. Initially, that settlement was on track to be finalized this summer, around the time the justices issue their ruling, but now the lawyers behind the Supreme Court case “are trying to derail” it by seeking to move the settlement proposal from state to federal court and by contending that it “won’t adequately compensate people who believe they’ve been sickened by Roundup,” according to USA Today. Bayer, which acquired Monsanto in 2018, “hopes that both the Supreme Court and the pending settlement will limit the extent of future lawsuits.”

On Site

From the SCOTUSblog Team

A history of Supreme Court leaks

Last month, The New York Times published a major scoop: the inside story of the Supreme Court’s 2016 order blocking then-President Barack Obama’s Clean Power Plan on its interim docket. The story was made possible by a leak of internal memos. How common are such leaks in the court’s history?

Opinion Analysis

Justices agree that actuaries can use up-to-date assumptions in assessing costs of leaving a multi-employer pension plan

Thursday’s decision in M&K Employee Solutions v. Trustees of the IAM National Pension Fund was pretty much exactly what you would have expected given the argument: a brisk rejection of the idea that the Employee Retirement Income Security Act of 1974 obligates actuaries to use out-of-date assumptions when they work on pension plans.

SCOTUS Outside Opinions

The Supreme Court and social media

The Supreme Court shapes constitutional and statutory meaning in an era defined by rapid technological change. But, despite presiding over disputes that involve online conduct, the court itself is strikingly absent from that world. This absence is especially notable in social media. Can – or should – the court continue to remain so disconnected?

Podcasts

Divided Argument

Ninja Court Packing

Will Baude and Dan Epps are joined by Professor Pam Karlan for a live show at the American Law Institute Annual Meeting to work through a busy stretch of the interim docket and looming merits decisions on executive power. They then answer audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.

A Closer Look

Bench vs. Slip Opinions

It’s time to delve into our favorite thing – SCOTUS minutiae. As SCOTUSblog readers know, we host a live blog on opinion days. Almost immediately after an opinion is announced, it becomes available on the court’s website, and a member of the SCOTUSblog team will then post a link to it on the live blog. This is labeled a “slip opinion.” However, as we’ve explained, Amy is typically in the court’s press room when opinions come down, and she (along with the other reporters present) receives paper copies of the opinions from the court’s Public Information Office staff. The paper copy that Amy receives (which is also available to members of the public about 30 minutes after opinion announcements) is labeled a “bench opinion.”

But what in the world is the difference between a “bench” and a “slip” opinion? Why the heck aren’t they just called ... opinions?

Let’s start with bench opinions. This practice emerged when the court moved into its current home in 1935 and adopted a “hand-down” approach to issuing decisions. Specifically, several members of the press sat at desks between the justices sitting on the bench and the counsel’s podium. When a justice announced a decision, members of the court’s staff would hand paper copies to these journalists. The journalists would then send the copies of the opinion down a floor to their coworkers in the press room through pneumatic tubes (picture the tubes used at a bank drive-up window – or in the movie Brazil). From there, the reporters would write their stories about the case (or cases) as quickly as possible for publication. Although the pneumatic tubes and reporters’ desks in the courtroom are gone (Chief Justice Warren Burger had them – and the reporters – removed in 1971 when he had a curved bench installed), the term bench opinion remains.

So what is a slip opinion? Slip opinions were originally opinions printed on loose “slips” of paper that could be inserted into printed volumes of cases. The slip opinion typically came out later then the bench opinion and might have corrections or edits that did not appear in the bench opinion – although now that a version of the slip opinion is posted online they are generally identical. That said, the online slip opinion may be updated from time to time for any errors as the publication process is completed, which occurs when these are placed into the volumes of the United States Reports. Slip opinions are also available in the Public Information Office (at least those from the current term).

But what, today, is the substantive difference between a bench and slip opinion? The answer is not much. While historically there was some delay between the bench opinion being distributed and the release of slip opinions a few days later, technology has shortened that delay to become almost nonexistent. So then why keep that particular distinction at all? Because, above all else, as the court’s website states, the Supreme Court “is deeply tied to its traditions.”

SCOTUS Quote

JUSTICE KENNEDY: “And that if there was fraud on the market, that is a materiality question addressed at the certification stage, but if the class isn't certified, the investor can still show that he had had direct reliance that was reasonable?”

MR. WAXMAN: “Yes.”

JUSTICE KENNEDY: “Am I – am I right about that? Or –”

MR. WAXMAN: “You are – you are either right or wrong, depending on how I understood you. Let me –”

(Laughter.)

MR. WAXMAN: “Let me start with you're right, Justice Kennedy, you're absolutely right.”

JUSTICE KENNEDY: “Do the first part.”

— Amgen Inc. v. Connecticut Retirement Plans and Trust Funds (2012)

The Supreme Court shapes constitutional and statutory meaning in an era defined by rapid technological change. But, despite presiding over disputes that involve online conduct, the court itself is strikingly absent from that world. This absence is especially notable in social media. Can – or should – the court continue to remain so disconnected?

This is not idle speculation. Across the globe, high courts have begun to embrace social media as a tool for transparency and civic engagement, offering real-time updates, summaries of their decisions, and direct communication with the public. By contrast, our Supreme Court continues to rely on traditional methods – written opinions, limited audio of oral arguments, transcripts, and occasional public appearances – to convey its work. At the same time, the justices have acknowledged the profound influence of digital platforms on speech, governance, and public perception and have expressed concerns about misinformation and the real-world harms that can stem from online ignorance.

The court needs to bridge this gap. To so, it should adopt a semi-limited, institutional approach to things like social media – using official, nonpartisan channels to communicate clearly with the public while preserving judicial neutrality, in a manner comparable to how some state court judges have used their platforms in furtherance of their official duties. This model would enhance transparency and accessibility without exposing individual justices to the risks associated with certain kinds of online engagement. In other words, the judiciary should recognize that thoughtful participation – not complete disengagement, as is the case now – is the best path forward. And it should do so sooner rather than later.

SCOTUS’ mixed relationship with social media

The Supreme Court maintains a striking institutional distance from social media. As far as we know, none of the nine sitting justices operate public personal accounts on platforms like X, Facebook, or Instagram, a choice that reflects longstanding norms of judicial neutrality and a desire to avoid even the appearance of impropriety. (Of note: in 2020, Justice Elena Kagan did say she "lurks[s] on Twitter.")

Although some close relatives of the justices maintain limited and largely private presences online, they are careful to maintain personal and professional identities without implicating the court. One notable exception is Ginni Thomas, the wife of Justice Clarence Thomas. In the aftermath of the 2020 presidential election, Thomas used social media and private communications to promote claims of election fraud and to urge political officials to take action related to the certification of the election results. Her outspoken online activity and broader political advocacy brought renewed attention to the potential risks posed by even indirect connections between the court and online discourse.

These activities, which became public through reporting and congressional investigation, sparked widespread debate over judicial ethics, recusal, and the extent to which a justice may be affected by the political conduct of a justices’ close family members. But, above all, they made one thing clear: while the justices themselves remain absent from social media, the realities of modern communication inevitably reach the court’s orbit.

Perceptions of social media at the high court

As for the court’s engagement with social media through its opinions, this has not amounted to any sort of unified doctrine, but a collection of various concerns that cut across ideological lines.

During oral argument in Moody v. NetChoice in 2024, for example, Justice Amy Coney Barrett candidly acknowledged that the regulatory landscape surrounding digital platforms makes her “a little bit nervous.” That hesitation was not simply about the novelty of this medium, but about the difficulty of applying traditional First Amendment frameworks to a space shaped by private actors, algorithmic enhancement, and global reach. This in turn has led the court to question how far regulation can – or should – go in such a rapidly developing area.

In Biden v. Knight First Amendment Institute, decided in 2021, a GVR (grant, vacate, and remand) decision, Thomas, in a concurring opinion, suggested that dominant social media companies may function as “common carriers,” and raised alarms about their ability to control access to speech in what increasingly resembles a modern public square. In contrast, the court’s other members have tended to focus more on social media as a source of misinformation and real-world harm, emphasizing the risks of under-regulation. At a 2021 event, Justice Sonia Sotomayor warned that the digital information ecosystem poses an “extraordinary challenge” to how Americans receive news. At the same event, Justice Neil Gorsuch echoed those concerns, emphasizing that misinformation can erode democratic stability from within – highlighting that anxieties about social media’s impact on democracy are not confined to one ideological perspective but reflect a broader, bipartisan concern. Building on this theme, Justice Ketanji Brown Jackson in 2024 suggested that an overly rigid application of the First Amendment could “hamstring” the government’s ability to respond to harmful content, particularly in high-stakes contexts like public health crises.

Social media among judges not on the Supreme Court

The justices’ concerns have played out, albeit in very different ways, throughout the judiciary. Although, as noted, the Supreme Court’s engagement with social media has been sparing (to put it lightly), that is not the case with the judiciary in general.

For federal judges, there isn’t a defined code of conduct explicitly for social media, though judges are supposed to uphold the same standard online that they would in person. In many states, however, judges are generally permitted under codes of conduct to operate on social media within carefully constructed ethical frameworks that prioritize impartiality, restraint, and public confidence. In Texas, the Texas Code of Judicial Conduct permits online engagement so long as judges avoid political activity, public commentary on pending cases, and any conduct that undermines the judiciary’s integrity. Similarly, Illinois allows judges to maintain a presence on platforms like Facebook or LinkedIn but cautions against connections or communications that could suggest bias or improper influence. California takes a slightly different approach, explicitly recognizing social media as a permissible tool for outreach while warning against ex parte communications and online interactions with attorneys or litigants. And New York emphasizes an “appearance of impropriety” standard, instructing judges to use social media cautiously to avoid any perception that their neutrality could be compromised. Taken together, these jurisdictions reflect a consistent principle: social media is not prohibited, but it is tightly regulated so as not to damage judicial legitimacy.

With this in mind, some state court judges are beginning to explore how digital platforms can translate complex legal processes into accessible information. Georgia Court of Appeals Judge Stephen Dillard, for instance, recently argued that social media, when used carefully, offers a way for judges to explain procedures, highlight court operations, and humanize the judicial role without compromising judicial impartiality. In this sense, judges can act as interpreters not only of the law, but “legalese” itself, making the work of the courts more transparent and understandable to the communities they serve.

This is not without its dangers, somewhat highlighted by the example of former Texas Supreme Court Justice Don Willett. Prior to becoming a judge on the U.S. Court of Appeals for the 5th Circuit, Willett was widely known for his active and often engaging presence on social media, using Facebook and X (then Twitter) to promote civic education and make the judiciary more accessible to laypersons. But during his 2017 nomination to the circuit court, Don Willett’s social media presence – though widely regarded as humorous and accessible – subjected him to increased scrutiny. That attention highlighted a broader concern that even well-intentioned, informal posts can be removed from their original context and, in a judicial setting, raise questions about impartiality and judicial bias. In response, Willett indicated that he would step back from social media use as a federal judge to avoid any potential issues and to preserve the appearance of neutrality.

Other judges have demonstrated how social media can be used to meaningfully enhance public trust in the judiciary. One of the most prominent examples is Rhode Island Judge Frank Caprio, whose courtroom clips – widely circulated on platforms like Facebook and YouTube – have reached millions of viewers. Through these videos, Caprio explains legal outcomes in plain language, often emphasizing fairness, compassion, and judicial discretion. In doing so, Caprio has acted as a bridge between the public and the often-opaque language of the law, reinforcing the idea that social media, when used thoughtfully, can strengthen confidence in judicial institutions rather than undermine it.

At the same time, more recent examples illustrate how digital and visual communication can raise new concerns. In a dissent in Duncan v. Bonta, U.S. Court of Appeals for the 9th Circuit Judge Lawrence VanDyke included a self-produced video demonstrating firearm mechanics – an unusual form of judicial expression that circulated widely online. VanDyke framed this as an effort to clarify the factual basis of his argument. Critics, however, dismissed it as a stunt, which cheapened the judiciary. Earlier this year, Delaware Chancery Court Chancellor Kathaleen McCormick reassigned several cases involving Elon Musk after Musk’s attorneys alleged that her LinkedIn activity reflected bias against him. The controversy stemmed from a LinkedIn “support” reaction tied to a post celebrating Musk’s loss in separate litigation (McCormick denied any bias and stated she may not have intentionally engaged with the post). Both incidents demonstrated how online activity can generate intense scrutiny and complicate public perceptions of judicial impartiality in the digital age.

The Supreme Court and the online world

As the examples above demonstrate, the judiciary’s engagement with social media has begun, even if it is still in its infancy. And whether it likes it or not, the Supreme Court cannot remain immune from this. This is especially true as Millennials and Gen Z, many of whom have lived much of their life on social media, come to fully dominate the legal profession – and eventually the judiciary itself. 

So where does this leave us?

First, as some state courts have done, the justices should adopt official, nonpartisan social media channels to provide plain-language summaries of opinions, highlight oral arguments, and explain procedural developments. Such an approach would enhance transparency without compromising judicial neutrality or inviting the risks associated with personal commentary. Judge Caprio provides a great example here, explaining his opinions and courts processes in plain language while avoiding any partisan or inflammatory rhetoric.

Second, justices’ family members should remain free to express themselves online without being pressured into silence due solely to their proximity to the court. A justice should not automatically be viewed as endorsing or aligning with every statement, opinion, or post made by a spouse, child, or other relative, particularly where the activity is personal, nonpolitical, or unrelated to matters before the court. At the same time, situations involving direct political advocacy, active involvement in matters connected to pending litigation, or online activity that creates a substantial appearance of bias may reasonably raise serious ethical and recusal concerns.

Third, and perhaps most controversially, I would encourage Supreme Court justices to go beyond purely institutional communication and, within appropriate ethical boundaries, use social media to express limited aspects of their personality and public identity. While official court accounts can improve transparency and procedural understanding, carefully managed personal accounts could help make the judiciary appear more human and accessible to the public. For example, justices could share educational interests, civic initiatives, historical reflections on the court, or moments from public events that allow the public to better understand the individuals behind the institution. At a time when many Americans perceive the judiciary as distant or opaque, this type of measured personal engagement could strengthen public trust by reinforcing that even those on the highest court are not abstractions, but flesh-and-blood public servants operating within the realities of modern civic life.

The question is not whether social media will shape public understanding of the judiciary – it already does – but whether the courts, and the Supreme Court in particular, will play an active role in informing that understanding or remain defined by it from the outside.

The case involves a multiemployer pension plan, a common arrangement in which a group of employers in a particular industry band together, collectively agreeing to provide specifically defined benefits to all covered employees. A natural question under those arrangements is what happens when one employer decides to leave the group. Under ERISA, the departing employer must make a payment to the plan equal to the employer’s share of any benefits attributable to past work that are unfunded, based on an actuary’s calculation “as of” the “measurement date,” the last day of the year before the employer withdraws.

Because the calculation necessarily is made after the date of the employer’s withdrawal, but “as of” the “measurement date” in the preceding year, the statute contemplates a gap between the state of contributions and obligations that set the departing employer’s responsibility and the date on which the responsibility is calculated. The issue in this case is whether the background economic assumptions – in particular the discount rate of interest that is crucial to the amount of liability – are supposed to be accurate on the date of calculation or based on assumptions the actuary was using during the preceding year (before the employer withdrew). The question often matters a lot. In this case, for example, the departing employer owed more than three times as much under the interest rate that was current on the date the actuary made the calculation as it would have owed under an interest rate set the previous year.

Justice Ketanji Brown Jackson’s brisk opinion for a unanimous court is squarely on the side of accuracy as of the date that the actuary in fact makes the calculation. Jackson’s take on the statute is that the requirement to make the calculation “as of” the measurement date “means two things. First, the hard data about the plan that feeds the … calculation must be fixed on the measurement date. Second, … the actual … calculation can be performed after the measurement date.” For her, “the key question is whether actuarial assumptions [like the proper discount rate] are akin to the facts about the plan that must be fixed on the measurement date, or whether they are a part of the … calculation itself and can therefore be selected after the measurement date.”

Once she has posed that as the question for decision, the case is pretty much over. Jackson explains that “actuarial assumptions … are not factual inputs. Instead, they are predictive judgments about a plan’s anticipated future performance—tools actuaries use to calculate the plan’s [unfunded future obligations].” In practice, she points out, “actuarial assumptions are adopted for the purpose of a particular calculation or measurement; they are not generally ‘in effect’” for some particular time period. In short, “[b]ecause actuarial assumptions are tools used to calculate [unfunded future obligations] rather than hard data about the plan, they cannot be ‘frozen’ on the measurement date.” Thus, Jackson concludes, the statutory “as of” requirement only “sets the reference point for the factual inputs into the … calculation. It has no bearing on when actuaries must select the tools, including assumptions, they use to calculate a plan’s [unfunded future obligations].”

Jackson buttresses her conclusion by pointing out that the statute requires only that the actuary’s assumptions must be “reasonable,” “tak[e] into account the experience of the plan and reasonable expectations,” and “offer the actuary’s best estimate of anticipated [future] experience under the plan.” It did not, though, directly specify that actuaries should select assumptions as of any particular date. For other calculations under the statute, in contrast, Congress did much more to specify the relevant assumptions. Congress’ failure to specify the relevant assumptions here, Jackson “presume[s,] is intentional.”

In the grand scheme of ERISA litigation, I doubt this will be an important decision. The justices needed to decide it because courts in New York were applying a contrary rule, but it seems unlikely to shed light on the general provisions governing plan administration that spark the great bulk of ERISA litigation.

In the story, Jodi Kantor and Adam Liptak suggested that the order “marks the birth … of the court’s modern ‘shadow docket,’ the secretive track that the Supreme Court has since used to make many major decisions.” But Kantor and Liptak’s story was notable for another reason: it relied on a series of confidential internal memos that the Times had obtained from an undisclosed source. This was a rare leak from an institution that prides itself on keeping its internal workings out of the public eye – and has mostly, but not entirely, succeeded.

Perhaps the leak that will come to most readers’ minds was also one of the most significant leaks in Supreme Court history. On May 2, 2022, Politico reporters Josh Gerstein and Alexander Ward published what they described as a draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization that would overturn the constitutional right to an abortion recognized in Roe v. Wade.

The Supreme Court confirmed that the draft opinion was authentic and announced that the court’s marshal, Gail Curley, would lead an investigation into the leak. In January 2023, however, the court released a report in which it revealed that Curley’s team had “to date been unable to identify a person responsible” for the leak “by a preponderance of the evidence.”

The draft opinion itself sparked protests around the country, including at the Supreme Court building and some justices’ houses. Justice Brett Kavanaugh was also the target of an attempted assassination in June 2022. The would-be assassin, who cited the leak of the draft opinion as a motive, pleaded guilty last year and was sentenced to eight years in a federal prison.

Although the Dobbs leak was one of the most dramatic leaks in Supreme Court history, leaks of confidential information (without confidential documents accompanying that information) have been significantly more common – if not commonplace – for more than a century.

Some of these leaks occurred before the decisions involved were released. Shortly after the Dobbs leak, for example, law professor Jonathan Peters noted that in the 1850s, the New York Tribune revealed the outcome of the Supreme Court’s decision in a dispute between Pennsylvania and the Wheeling & Belmont Bridge Company not once but twice – in 1852 and then again when the case came back to the court in 1854.

In 2002, John Owens, now a judge on the U.S. Court of Appeals for the 9th Circuit, recounted the story of Ashton Embry, a former law clerk to Justice Joseph McKenna who was indicted in 1920 on charges that he had leaked the results of the Supreme Court’s decision in a case involving Southern Pacific Railroad to investors, who made money by selling the company’s stock before the decision was released. Embry’s indictment was dismissed nearly a decade later.

Although the draft opinion itself was not leaked in Roe, there were two different leaks disclosing the machinations behind the scenes, and ultimately the results, in that case. The first leak, Peters noted, was an unsigned 1972 article in The Washington Post that described the “internal court struggle over” the case, including the results of the initial vote and efforts by then-Chief Justice Warren Burger to delay the court’s decision. The story also discussed the substance of several private notes and memoranda exchanged among the justices, although it did not publish the notes and memoranda themselves.

And in 1973, a law clerk revealed the results of the decision to a reporter for Time magazine, giving him the information "on background” to use after the opinion was released. But the opinion was delayed, and Time instead published the story shortly before the opinion announcement on Jan. 22, 1973. According to Peters, the incident led to Burger’s creation of what became known as the “20-second rule” for law clerks: any law clerk seen talking to a reporter would be automatically fired within 20 seconds.

Court insiders have also disclosed confidential information to reporters after decisions have already been released, often shedding new light on the court’s decision-making process even if the results in a particular case are already public. In 1979, journalists Bob Woodward and Scott Armstrong published The Brethren, a detailed, behind-the-scenes look at the first few years of Warren Burger’s tenure as the court’s chief justice. Closed Chambers, published in 1998 by Edward Lazarus, pulled back the curtain on his year as a law clerk to Justice Harry Blackmun.

And in October 2004, law clerks who were working at the court when the justices issued their 5-4 decision in Bush v. Gore, which ended the presidential election recount in Florida and allowed for the victory of George W. Bush, spoke with reporters for Vanity Fair. The clerks, who were not identified, offered a detailed look behind the scenes of the court’s handling of the litigation and criticized the court’s decision as driven by partisanship on the part of the court’s conservative justices; the article, and the clerks’ decision to speak with Vanity Fair, in turn drew criticism from other former law clerks and judges. 

Eight years later, Jan Crawford of CBS News broke the story of an about-face by Chief Justice John Roberts on the validity of the Affordable Care Act’s individual mandate, which required nearly everyone in the United States to buy health insurance or pay a penalty. Roberts, Crawford wrote, “initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, … but later changed his position and formed an alliance with liberals to uphold the bulk of the law.” Crawford attributed her reporting to “two sources with specific knowledge of the deliberations.”

In 2019, CNN’s Joan Biskupic reported that Roberts had changed his vote in the challenge to the inclusion of a question about citizenship on the 2020 census, ultimately agreeing with the court’s (then) four Democratic appointees that there was “a significant mismatch between the decision the Secretary made and the rationale he provided.” Much like Crawford, Biskupic wrote that her information came from “sources familiar with the private Supreme Court deliberations.”

Just over a year and a half after the leak of the draft opinion in Dobbs, Kantor and Liptak reported on the “inside story” of the Dobbs decision. Among the many details revealed for the first time in their story was that Justice Amy Coney Barrett, who eventually joined Alito’s opinion overturning Roe, at one point voted against taking the case. Moreover, they wrote, although the justices agreed in early January 2021 to grant review, the court delayed its announcement that it would hear oral argument in the case until May, at Kavanaugh’s suggestion.

In 2024, Kantor and Liptak pulled back the curtain on yet another set of proceedings at the court that had already concluded, this time involving (among others) the court’s decision granting President Donald Trump broad immunity from criminal prosecution for his acts as president. Roberts, Kantor and Liptak reported, had sent his colleagues “a confidential memo that radiated frustration and certainty.” “He wrote,” they continued, “not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it.”

In a recent appearance on Fox News Sunday to promote his new children’s book, Justice Neil Gorsuch criticized the recent spate of leaks, saying that the court needs to be able to “leave room for candid conversations and deliberations with one another.” But with the current divisions on the court, and the aggressive efforts by outlets like The New York Times to uncover more information about what is going on behind the scenes, we may well see even more leaks in the years to come.

At the Court

On Thursday, the Supreme Court released its decisions in Havana Docks Corporation v. Royal Caribbean Cruises and M&K Employee Solutions v. Trustees of the IAM National Pension Fund. It also dismissed Hamm v. Smith as improvidently granted.

• In Havana, the court, by a vote of 8-1, ruled in favor of a U.S. business that, in a lawsuit against several cruise lines, is seeking to recover for its losses under a 1996 law that targets the Cuban regime. Justice Clarence Thomas wrote the majority opinion, and Justice Elena Kagan penned a rare solo dissent.
• In M&K, a unanimous court held that ERISA provisions governing the calculation of withdrawal liability from an underfunded multiemployer pension plan do not require that actuaries use assumptions adopted prior to the measurement date. Justice Ketanji Brown Jackson authored the opinion of the court.
• In Hamm, the court considered how and whether to assess a claim under Atkins v. Virginia (which prohibited the execution of people who are intellectually disabled) when a defendant has taken multiple IQ tests. The vote was effectively 5-4, with Justices Thomas, Samuel Alito, and Neil Gorsuch and Chief Justice John Roberts opposing the decision to dismiss the case as improvidently granted.

After the opinion announcements, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from Thursday’s conference are expected on Tuesday at 9:30 a.m. EDT.

Also on Thursday, the court denied three additional requests for a stay of execution from Tony Carruthers, whose previous request was denied on Tuesday. Tennessee began his execution, but called it off after officials failed to find a vein.

The court also denied two requests for a stay of execution from Richard Knight, who was sentenced to death in 2006. Knight was executed in Florida hours later.

The court has indicated that it may announce opinions on Thursday, May 28, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.

Morning Reads

House Democrats take on the Supreme Court shadow docket

Benjamin S. Weiss, Courthouse News Service

On Thursday, Rep. Jamie Raskin, a Democrat from Maryland, “unveiled a package of legislation he said would shine a spotlight on the Supreme Court’s shadow docket and demystify the justices’ secretive and often unexplained emergency orders,” according to Courthouse News Service. The legislation “would attempt to address the opaque nature of the shadow docket by requiring the Supreme Court to issue public legal justification for orders issued from the emergency pool within seven days.” “Courts don’t lose authority when they explain themselves – that’s where their legitimacy comes from,” Raskin said to Courthouse News Service.

Trump fires warning shot at SCOTUS as major citizenship showdown looms: ‘It will be a disaster’

Ashley J. DiMella, Fox News

Speaking Thursday from the Oval Office, President Donald Trump predicted a loss for his administration in the Supreme Court’s birthright citizenship case, which addresses his “January 2025 executive order seeking to limit automatic citizenship for some children born in the U.S.” Such a ruling “would be a disgrace,” the president said, adding that the justices will “probably rule against me because they seem to like doing that.” “You know, frankly, I’m not happy with some of the decisions,” Trump said.

Gun activists ask Supreme Court to block Maryland’s ban on firearms at ‘sensitive places’

Stephen Dinan, The Washington Times

In a petition for review filed this week, a “coalition of gun-rights groups has asked the Supreme Court to step in and block a Maryland law that bars even concealed-carry permit holders from carrying firearms at ‘sensitive places’ such as state parks, museums and mass transit,” according to The Washington Times. The groups contend that “the heart of the Second Amendment’s right to bear arms is personal protection” and that “states can abridge that right in locations only when the state itself provides armed guards and screening, such as a courthouse.”

An Early Look at Scalia-Ginsburg Friendship

Ed Whelan, Confirmation Tales

In a post for his Substack, Ed Whelan revisited “the remarkable story” of how Patrick Schiltz, who is now chief judge for the U.S. District Court for the District of Minnesota, came to clerk for then-Judge Antonin Scalia, which involved a “non-interview interview” and a competing offer from then-Judge Ruth Bader Ginsburg. Schiltz told Whelan that, upon learning of Ginsburg’s offer, Scalia “spoke highly of her, and told me I could not go wrong” with either job. When Schiltz told Scalia that he “wanted to clerk for him” but was worried about insulting Ginsburg, Scalia helped him deliver the news. “He picked up the phone, called Judge Ginsburg, and said: ‘Ruth, I’ve got Patrick Schiltz in my office. I told him that he can’t leave until he accepts my offer. He has a plane to catch, so he accepted. Blame me,’” Schiltz recalled, adding that he “could hear her on the other line telling Judge Scalia that she thought” Scalia and Schiltz “were a great match.”

On Site

From the SCOTUSblog Team

Court sidesteps death-row IQ dispute

The Supreme Court on Thursday left in place a ruling by a federal appeals court in favor of an Alabama man who has been on that state’s death row for more than two decades. In a one-sentence, unsigned order, the court dismissed Alabama’s petition for review in Hamm v. Smith as “improvidently granted” – that is, without deciding it. That order leaves undisturbed a ruling holding that Joseph Smith is intellectually disabled and therefore cannot be executed.

Opinion Analysis

Court rules against cruise lines in Cuban confiscation case

More than 65 years after the confiscation by Cuba’s communist government of assets owned by U.S. businesses there, the Supreme Court on Thursday ruled in favor of a U.S. business that is seeking to recover for its losses under a 1996 law that targets the Cuban regime. By a vote of 8-1, the justices ruled that Havana Docks, a U.S. company that before 1960 had owned a right to use and operate the docks in the port of Havana, is potentially entitled to receive hundreds of millions of dollars for the use of the port by cruise lines between 2016 and 2019, even if the company’s control of the docks would have expired in 2004.

From the SCOTUSblog Team

Court puts off deciding whether to consider $5 million verdict against Trump – yet again

A high-profile petition for review from President Donald Trump asking the court to review the $5 million jury verdict against him in a sexual abuse and defamation case filed by journalist E. Jean Carroll has been fully briefed since January. It was originally scheduled for a February conference, but the justices have rescheduled it 11 times this winter and spring. There is no way to know what is going on behind the scenes, but the delay may be related to a separate defamation case involving Carroll.

Podcasts

Advisory Opinions

All the Things Wrong with Trump’s Billion-Dollar Fund

Sarah Isgur and David French analyze President Donald Trump’s $1.776 billion “anti-weaponization” fund through the lens of three legal “buckets,” and talk about how federal appropriations work and the Obama-era case that hangs over this legal issue.

A Closer Look

Justice Ketanji Brown Jackson speaks

Coverage of Justice Ketanji Brown Jackson’s Monday night remarks in Washington primarily focused on her critiques of the court’s decision to immediately finalize its ruling in the Louisiana redistricting case and her concerns about the court appearing partisan in an election year. And while those may have been the most newsworthy things she said, Jackson also spoke on her upbringing in Miami, the “crazy” environment that came with her Supreme Court appointment, and why she believes Justice Stephen Breyer offered her a clerkship.

The conversation, moderated by U.S. District Judge Richard Gergel at the American Law Institute’s annual meeting, opened with Jackson reading from the preface of Lovely One, her memoir published in 2024.

From there, Jackson walked the audience through her family’s story (“a family of strivers,” she called them) with the help of a slideshow of photographs, pausing on images of her grandparents, who migrated from Georgia to Miami in 1939 in search of greater opportunity. Jackson explained that her grandfather started a gardening business and put all five of his children through college. “He knew that that was going to be the key,” Jackson said, “Making that investment in education was going to be the way in which our family would be able to survive and improve.” She also described how her aunt, who was working as a missionary in West Africa when Jackson was born, sent a list of African names to her mother, from which her mother chose the name Ketanji Onyika, meaning “lovely one.”

Jackson then explained that, while she was still a child, her father made a mid-career change from teaching history in D.C. to attending the University of Miami Law School. “I actually never thought you could do anything other than be a lawyer,” Jackson said. “Because that’s what I knew, you know, when you grow up on the campus of a law school, education becomes what you know, law became what I was interested in from that young.”

Prompted by Gergel, Jackson added that her father eventually became the lawyer for the school board for the Dade County Public School district, and that is what she and Breyer connected over during her clerkship interview. “I am to this day convinced I got the interview or got the job with Justice Breyer because Justice Breyer’s father was the lawyer for the school board in San Francisco. And he was so excited when he heard that, he thought he had something in common with me.”

Jackson also shared a story from her memoir about a defining moment in high school, when a store clerk followed her around a shop while her white classmates moved freely. She described going home to her grandmother, who urged her not to let it define her. “And don’t let them get inside you,” her grandmother told her.

When asked what life had been like since her nomination to the court, Jackson said that “it’s only been four years that I’ve been on the court and it’s like overnight your life changes. ... You go from being a relatively anonymous judge in the world to being someone that people recognize.”

When the conversation turned to the court’s emergency docket – a concern Jackson has raised before, including during a lecture at Yale Law School earlier this year – she reprised her criticism of the court increasingly intervening in cases still pending before lower courts, often without full briefing or argument. She proposed two remedies: a threshold requirement of genuine urgency before intervention, and a reordering of the factors the court applies, putting irreparable harm ahead of likelihood of success on the merits.

Perhaps her most pointed comments came when Gergel raised Louisiana v. Callais, the Voting Rights Act case. Jackson talked about dissenting from the court’s decision to shorten its standard 32-day waiting period before finalizing the ruling, and said the court had deviated from that practice over a party’s objection only two or three times in roughly 25 years. As USA Today reported, Jackson said the court has “to be really, really careful in this environment when we’re dealing with issues that have a political overlay,” and that “public confidence is really all the judiciary has.”

Asked finally about her many dissents, Jackson said that she agreed with her colleague Justice Ruth Bader Ginsburg, who “said that dissents are really written for a future age, that they lay down a marker for the future.” “Dissents, I think, are one of the most extraordinary aspects of the American legal tradition, because they actually embody one of our core values, the idea of freedom of expression and tolerance of minority views,” Jackson added. “This is something that is integral to who we are as Americans, and we have a practice that allows for that.”

SCOTUS Quote

JUSTICE SCALIA: “What is the ambiguity we are talking about?”

MR. HALLWARD-DRIEMEIER: “Well, the ambiguity – I actually think there is no ambiguity because –”

JUSTICE SCALIA: “What is the non-ambiguity we are talking about?”

— Executive Benefits Insurance Agency v. Arkison  (2014)

The case hinged on the Cuban Liberty and Democratic Solidarity Act, a law passed by Congress in 1996 that is also known as the LIBERTAD Act or as the Helms-Burton Act (after its sponsors). One provision of the law allows U.S. nationals to bring lawsuits in federal court against anyone who “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959,” while another gives the president the power to suspend the right to bring a lawsuit when he believes that doing so is “necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.” From 1996 until 2019, when President Donald Trump declined to renew the suspension, U.S. presidents repeatedly suspended the right to bring a lawsuit.

After Trump opted not to renew the suspension, Havana Docks filed a lawsuit in Florida against four cruise lines – Royal Caribbean, Norwegian, Carnival, and MSC. Havana Docks contended that between 2016 and June 2019 the cruise lines had trafficked in property that had belonged to Havana Docks – the company’s right to use and operate the Havana Cruise Port Terminal, which the Cuban government confiscated in 1960.

A federal district judge in Miami awarded Havana Docks more than $400 million. The cruise lines subsequently appealed to the U.S. Court of Appeals for the 11th Circuit, which – by a vote of 2-1 – reversed.

Havana Docks then came to the Supreme Court, which on Thursday threw out the 11th Circuit’s decision and sent the case back to the lower courts.

Writing for the majority, Justice Clarence Thomas explained that the key question in the case is whether, for purposes of the Helms-Burton Act, the “property which was confiscated by the Cuban Government” was Havana Docks’ right to use the docks (that is, the company’s “property interest in the docks”), or whether it was the docks themselves.

The answer to that question, Thomas continued, is that the “property which was confiscated” can refer both to “the plaintiff’s interest in that property” and, more broadly, to the physical property itself – such as the docks in this case. Therefore, Thomas wrote, “confiscated property” such as the docks “is, as it were, tainted—off limits—such that anyone who uses the property can be liable to those who had an interest in the tainted property.”

Applying that analysis to the case before him, Thomas reasoned that “the Cuban Government seized control of ‘property’—the docks that Havana Docks built—in 1960. At that point, the docks were tainted as confiscated property, … ‘the use of’ which the United States sought to ‘deter’” with the Helms-Burton Act. “The cruise lines later used the confiscated docks—property to which Havana Docks owns a certified claim—when they transported nearly a million passengers to Cuba between 2016 and 2019. The Court of Appeals therefore erred in concluding that Havana Docks failed to establish these requirements for” liability under the Helms-Burton Act.

The majority sent the case back to the lower court for it to consider, among other things, the cruise lines’ other defenses against liability. 

Justice Sonia Sotomayor penned a concurring opinion that Justice Brett Kavanaugh joined. She flagged “two issues” that the majority did not address but that, in her view, “raise significant concerns” when the case returns to the lower court or in similar cases brought under the Helms-Burton Act.

First, Sotomayor argued, Havana Docks’ interpretation of the Helms-Burton Act “could allow it to recover a potentially unlimited amount of money from an unlimited number of people who use the confiscated docks at issue.” Although Havana Docks’ claim for its loss of its interest in the docks was certified as $9 million in 1960, Sotomayor noted, it could “recover millions, if not billions, of dollars over and over again, so long as anyone continues to make any commercial use of the docks. It is unlikely,” Sotomayor posited, “that Congress intended for someone who suffered a finite loss to reap infinite recoveries.”

Second, Sotomayor questioned whether the cruise lines might be shielded from liability under an exception to the Helms-Burton Act for “transactions and uses of property” related to legal travel to Cuba. “Indeed,” she observed, “the Federal Government appears to have previously taken the position that these cruises were lawful and beneficial to both Cuba and the United States.”

Justice Elena Kagan penned a rare solo dissent. She argued that the docks did not qualify as “property which was confiscated by the Cuban government” because the Cuban government, rather than Havana Docks, had always owned them. And Havana Docks’ property interest – its right to use the docks – had expired in 2004, she emphasized. “At the end of the day,” she wrote, “the Court’s interpretation of” the Helms-Burton Act, “treats all property interests as if they were perpetual ones.” But in her view, “a plaintiff can recover under” the Helms-Burton Act “only when the defendant traffics in the actual property that was confiscated from the plaintiff. Here,” she concluded, “that means Havana Docks’ claim should fail, because the cruise lines did not traffic in Havana Docks’ time-limited—and long-ago expired—concession.”

The vote was effectively 5-4. Justice Samuel Alito wrote a 24-page dissent that Justice Clarence Thomas (who also wrote his own 16-page dissent) joined in full and Chief Justice John Roberts and Justice Neil Gorsuch joined in part. Justice Sonia Sotomayor wrote a 22-page concurring opinion, which was joined by Justice Ketanji Brown Jackson, agreeing with the decision to dismiss the case. 

A quarter-century ago, in Atkins v. Virginia, the Supreme Court ruled that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of people who are intellectually disabled. The issue in Smith’s case was how and whether courts should assess a defendant’s claim under Atkins when he has taken multiple IQ tests.

The state of Alabama contended that the lower court, in throwing out Smith’s death sentence, focused too heavily on the individual results of each of Smith’s five IQ tests, when the cumulative effect of his IQ scores indicates that he is not intellectually disabled. Smith countered that the lower court did not rely on “a single IQ score” to reach its conclusion and instead looked at a broad array of evidence.

Smith was convicted and sentenced to death for the 1997 robbery and murder of Durk Van Dam. After Smith’s appeals in the state courts were unsuccessful, he went to federal court. In the wake of the court’s decision in Atkins, Smith argued that he was intellectually disabled and could not be executed. A federal district judge in Mobile, Alabama, threw out Smith’s death sentence, and the 11th Circuit upheld that ruling.

The state appealed to the Supreme Court, which in November 2024 sent the case back to the court of appeals for it to clarify the basis for its decision. Thomas and Gorsuch indicated then that they would have taken up the case and heard oral arguments then, without waiting for the lower court to weigh in.

When the case returned to the 11th Circuit, that court once again set aside Smith’s death sentence. Smith had obtained five IQ scores, ranging from 72 to 78, and his intellectual-disability claim hinged in part on whether his IQ was 70 or lower. The 11th Circuit emphasized that it had not thrown out Smith’s death sentence simply because the margin of error for his lowest IQ score (72) would put his IQ at 69. Instead, it said, it had upheld the district court’s decision that Smith is intellectually disabled “based on the complete record, including any relevant expert testimony.” The district court, the 11th Circuit stressed, was not clearly wrong (the standard for reviewing factual findings by the district court) when it found “that Smith suffered from significantly subaverage intellectual function, that he had significant and substantial deficits in adaptive behavior, and that he manifested those qualities before he turned 18.”

In February 2025, the state returned to the Supreme Court, again seeking to have the justices step in. In a brief, unsigned order in early June, the justices granted the state’s petition for review and agreed to decide “[w]hether and how courts may consider the cumulative effect of multiple IQ scores in assessing” a claim that a capital defendant is intellectually disabled and therefore cannot be executed.

The justices heard oral argument in December, but on Thursday they threw the case out without deciding it.

In Sotomayor’s view, the court was correct in dismissing the case. She noted that the litigants agreed on two important points. First, “the Eighth Amendment does not prescribe a single formula for weighing multiple IQ scores.” Second, under Atkins, states have the primary role in determining how to enforce that case’s ban on executing inmates with intellectual disabilities.

But what the litigation in the lower courts did not do, she continued, was focus on “how to consider multiple IQ scores,” and the lower courts in this case did not “specifically address[] whether a court must consider the ‘cumulative effect’ of Smith’s IQ scores by combining them using a specific method, or whether one method is better than another, or even how a court should go about deciding which method is preferable.”

Moreover, she continued, “it does not appear that a single state legislature or court or Federal Court of Appeals has adopted” the rule that Alabama now proposes, “nor has any adopted a rule prohibiting courts from assessing multiple scores holistically without combining them, just as the District Court did here.” Therefore, she concluded, the Supreme Court properly “exercise[d] caution and decline[d] to adopt any such rules now.” 

In his solo dissent, Thomas argued that the court’s decision in Atkins is “demonstrably erroneous” and should be overruled altogether. He contended that the Eighth Amendment’s ban on cruel and unusual punishment applies only to methods of execution and does not extend to claims like Smith’s. “Nothing in our history, from 1791 to 2002,” when Atkins was decided, “suggests that there is anything unlawful about executing murderers now protected by Atkins—let alone one such as Smith who reads at an 11th-grade level and has never scored below 71 on a single IQ test.”

In his dissent, Alito outlined several different ways that courts could determine the “true” IQ score for a defendant who has taken multiple IQ tests – for example, calculating a “composite” score, using the median score, or having an expert witness determine a score. “Any one of these approaches provides a reasonable way to evaluate whether a defendant’s IQ is 70 or below in Atkins cases involving multiple scores. And when a court using a reasonable method concludes that a defendant’s ‘true’ IQ is above 70, it may reject an Atkins claim solely on that ground.”

In a part of his dissent that Roberts and Gorsuch did not join, Alito argued that the justices should reverse the 11th Circuit’s ruling in Smith’s favor and send the case back to the lower courts for them “to perform a proper analysis.”

Finally, Alito contended that the Supreme Court’s failure to decide Smith’s case “will have regrettable consequences. Without clear rules for determining when multiple IQ scores are dispositive, nearly every Atkins case will devolve into an amorphous, individualized determination of whether the defendant meets an imprecisely defined notion of ‘significantly subaverage intellectual functioning’ under which the role of IQ is not clearly articulated.” Such a “case-by-case approach without categorical IQ rules … runs contrary to Atkins’s very premise,” Alito wrote.

Carroll filed the lawsuit that led to the verdict in a federal court in New York in 2022. She contended that in 1996 Trump had sexually assaulted her in a dressing room at a Manhattan department store and then had defamed her in a 2022 social media post in which he described her accusations as (among other things) a “Hoax.”

The jury sided with Carroll and awarded her $5 million. A federal appeals court then upheld that verdict.

Trump came to the Supreme Court in November 2025, asking the justices to take up his case. In particular, he argued, Carroll’s lawyers should not have been allowed to introduce testimony by other women who also alleged that Trump had assaulted them, as well as the 2005 “Access Hollywood” tape in which Trump bragged about grabbing women by their genitals.

Carroll urged the court to deny review. She emphasized that even if the jury should not have been allowed to consider the evidence, it ultimately would not have made a difference because the rest of her case was so strong.

On Jan. 28, the court “distributed” – that is, officially sent the briefs to the justices – the case for it to consider at its Feb. 20 conference. One day before that conference, however, the court “rescheduled” the case – that is, postponed its consideration of Trump’s petition. When the court reschedules a case, it does not provide an explanation; the rescheduling simply appears as a notation on the court’s electronic docket.

Over the past three months, the court has continued to reschedule Trump’s case – most recently on Wednesday, for the 11th time. There is no way to know what is going on behind the scenes, but the delay may be related to a separate defamation case involving Carroll. In that case, Trump has indicated not only that he plans to ask the Supreme Court to review a ruling by the same federal appeals court that upheld an $83 million verdict in Carroll’s favor, but also that he is seeking to have the U.S. government take his place in the lawsuit because he was president when he made the statements at the center of the case.

At the Court

After the possible announcement of opinions this morning, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from today’s conference are expected on Tuesday at 9:30 a.m. EDT.

The court has not yet indicated when it will next release opinions.

Morning Reads

Trump Court Picks Now Cite Justice Jackson on 2020 Election

Olivia Alafriz, Bloomberg Law

When asked by Senate Democrats about “the outcome of the 2020 election,” some of President Donald Trump’s judicial nominees are turning to a potentially surprising source as inspiration for their answers: Justice Ketanji Brown Jackson. Recent nominees have cited Jackson’s statement that it “wasn’t proper for her to comment on political matters” when she was asked about the 2020 election results during her 2022 confirmation vetting to explain why they, too, are declining to address that election, according to Bloomberg Law. “I think the answer that Justice Jackson gave is the only legally and ethically correct one,” said Matthew Schwartz, whom Trump nominated to the U.S. Court of Appeals for the 2nd Circuit, during his confirmation hearing on Wednesday.

Costco urges US judge to reject consumer class action over tariff refunds

Mike Scarcella, Reuters (paywalled)

In a Monday filing, Costco “asked a federal judge to dismiss a proposed class action claiming the retail giant owes customers refunds for higher prices it charged before the U.S. Supreme Court struck down import tariffs imposed by President Donald Trump,” according to Reuters. The company “called the lawsuit speculative and said the customer who lodged the case suffered no harm.” Costco noted that “it has not yet received any refunds and it is unclear when it might do so or in what amount.”

White House must comply with Presidential Records Act, judge rules

Josh Gerstein, Politico (paywalled)

In a Wednesday ruling, U.S. District Judge John Bates “ordered aides to President Donald Trump to continue to observe the requirements of the Presidential Records Act” and preserve documents and other materials related to the president’s official duties, “despite a Justice Department opinion that found the law unconstitutionally intrudes on presidential power,” according to Politico. “Bates concluded that the 1978 statute is likely constitutional and granted a preliminary injunction that essentially nullifies” the DOJ’s opinion. “The original public meaning of the text of the Constitution, canons of interpretation, Supreme Court precedent, general principles of property law, and almost 50 years of practice confirm that Congress has the enumerated power to regulate presidential records,” Bates wrote.

Liberty University student fights for religious studies tuition grant

Liz Lykins, World

The Supreme Court could soon have an opportunity to revisit its 2004 ruling in Locke v. Davey, in which it held that states do not violate the First Amendment when they prevent students seeking devotional degrees from participating in public scholarship programs. Bethany Hall, a Liberty University student who is challenging such scholarship restrictions in Virginia, recently lost before the U.S. Court of Appeals for the 4th Circuit, which cited the 2004 precedent in its ruling against her. Hall told World magazine that she is hopeful that justices will take up her case and overturn the 2004 decision. “It’s just quite simply wrong and very sad that our Supreme Court made that decision back then,” she said. “That’s $20,000 that I just lost because I’m studying what I feel like I should do with my life.”

Trump’s MAGA Supreme Court lawyer breaks tradition, but the justices embrace it

Joan Biskupic, CNN (paywalled)

In multiple high-profile arguments this term, U.S. Solicitor General D. John Sauer has “push[ed] the boundaries of the law at the Supreme Court with a delivery that is quickfire, confrontational and imbued with MAGA attitude,” according to CNN. Although “the justices of even a decade ago” might have been “turned off” by Sauer’s approach, today’s court “has not resisted it.” CNN noted that “Sauer has never faced the pummeling other SGs experienced at the hands of the majority. Liberal justices have occasionally asked him to slow down, and [Chief Justice John] Roberts chastised him during a January argument for interrupting a justice mid-question,” but conservative justices have appeared willing to come to Sauer’s defense when “liberals pounce” on his responses.

On Site

Relist Watch

Daubert dust-up and AEDPA angst

In his Relist Watch column, John Elwood explored two newly relisted cases that will be considered for a second time by the justices today: Union Carbide Corp. v. Sommerville, on when trial judges may admit an expert witness, and Walters v. Coleman, on a grant of habeas relief to an Iraq and Afghanistan veteran who committed several violent attacks.

Contributor Corner

What oral argument reveals about Supreme Court unanimity and division

In his Empirical SCOTUS column, Adam Feldman closely examined six recent Supreme Court cases – three decided unanimously and three decided by contested votes – to answer a (seemingly) straightforward question: Does the nature of the oral arguments appear to differ in ways that predict, or at least are consistent with, the eventual division of the court?

Contributor Corner

In immigration cases, the court doesn’t just settle disagreements

In his Immigration Matters column, César Cuauhtémoc García Hernández reflected on three immigration disputes that the justices chose to hear this term, noting that the cases on birthright citizenship, the Temporary Protected Status program, and the rights of asylum seekers “didn’t arrive before them after lower court disagreement.” By becoming involved anyway, “the court has guaranteed itself a starring role in some of the president’s most prominent policies and in the political storm that swirls around them,” according to Hernández.

Podcasts

Amarica's Constitution

Scrip for Scripture on the National Mall

After weeks of tracing the background history and constitutional principles at work on religious establishment, free exercise, and equality issues, Akhil Amar and Andy Lipka explore the Trump administration’s support for last weekend’s “Rededicate 250: A National Jubilee of Prayer, Praise & Thanksgiving” event, analyzing how it fits into the constitutional rubrics that were previously examined.

A Closer Look

Dershowitz v. CNN

On Jan. 29, 2020, Alan Dershowitz, a professor emeritus at Harvard Law School who at that time was representing President Donald Trump during his first impeachment trial, appeared on the Senate floor to respond to questions about Trump allegedly pressuring Ukraine to support his reelection campaign. Sen. Ted Cruz, a Republican from Texas, asked Dershowitz to reflect on the legality of quid pro quo agreements. Dershowitz offered a lengthy response, positing, among other things, that “[i]f a President does something which he believes will help him get elected—in the public interest—that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz’s answer sparked something of a media frenzy as political commentators pushed back against what at least some believed was a “crazypants bonkers” legal argument. CNN dedicated multiple segments to the hearing that day and the next, repeatedly returning to – and repeatedly criticizing – Dershowitz’s remarks. In the following days, Dershowitz attempted to clarify his position, including through appearances on CNN, contending that his comments had been “misinterpreted” or quoted without important context. Ultimately, Dershowitz sued CNN over its coverage, alleging that the network and its anchors and contributors had defamed him by only sharing misleading clips of his statement.

A federal district court in Florida granted summary judgment to CNN, holding that Dershowitz had failed to establish that CNN acted with actual malice – that is, with intentional disregard for the truth. In August 2025, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s decision, highlighting the Supreme Court’s famous 1964 ruling on defamation: New York Times Co. v. Sullivan.

Under Sullivan, the 11th Circuit explained, public figures like Dershowitz “cannot recover damages for defamation unless they prove that an untrue statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’” Dershowitz, it continued, had offered no such proof. According to the circuit court, even if “commentators did report incorrectly on Dershowitz’s statements, he has offered no evidence that they did so intentionally. If anything, the evidence shows that they believed in the truth of their reporting, and that they formed their opinions independently.”

In late December, Dershowitz asked the Supreme Court to take up his case and revisit Sullivan’s actual malice standard. Specifically, in his petition for review, he urges the justices to clarify whether “systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice” and to consider limiting Sullivan’s application and/or modifying its evidentiary standards. As it stands, according to Dershowitz, “Sullivan’s actual-malice standard has devolved into near-absolute immunity for media defendants, even when they profoundly misrepresent verifiable public statements.”

Initially, CNN waived its right to respond to Dershowitz’s petition for review, but, in February, the court called for a response. In that brief, filed last month, the company asserts that Dershowitz has failed to account for the fact that Florida, where he filed his lawsuit, has incorporated the actual malice standard into its state defamation law, meaning that he would still lose under Florida law even if the court revisits and limits Sullivan’s holding. In any event, CNN continues, the court should not change Sullivan because it is “a cornerstone of modern constitutional law” that “was correctly decided in the first place.”

Dershowitz v. Cable News Network is expected to be considered by the justices for the first time during their private conference today.

SCOTUS Quote

“That seems to us to be the common sense of the matter; and common sense often makes good law.”

— Justice William O. Douglas  (1957)

Since our last post, the Supreme Court has continued its one-in, one-out approach to the relist rolls. Of the returning relisted cases, the justices granted review on just one, Crowther v. Board of Regents of the University System of Georgia, a Title IX case asking whether employees of federally funded schools may sue for sex discrimination in employment under Title IX or instead must proceed under Title VII’s more elaborate scheme. After two relists, the court called for the views of the solicitor general, who in a recently filed brief recommended a grant because there is a circuit split on the issue. The government was not so lucky with its petition in Pension Benefit Guaranty Corporation v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund. There, the court denied the government’s petition seeking review of a pension-law decision that could wind up costing the federal government, as pension guarantor, a bundle. Justice Brett Kavanaugh noted that he would have granted the petition.

On to new business. There are 105 petitions and applications on the docket for this Thursday’s conference. Two are being considered for a second time.

Daubert revisited

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that under the Federal Rules of Evidence (and particularly Rule 702, governing the admissibility of testimony by expert witnesses), trial judges may admit expert opinions only if they are relevant and rest on a reliable foundation. In practice, that means courts examine the expert’s methods and reasoning – not simply the expert’s credentials – before letting the jury hear the testimony. Applying Daubert is one of the most consequential parts of pretrial procedure in cases involving experts.

Today’s first relist presents a potential Daubert sequel. Union Carbide Corp. v. Sommerville asks how much gatekeeping Rule 702 requires after a 2023 amendment, which the Rules Advisory Committee said was undertaken “to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the [expert] admissibility requirements set forth in the rule.” 

The case began as a putative West Virginia medical-monitoring class action brought by Lee Ann Sommerville, who alleges that Union Carbide and Covestro emitted ethylene oxide from a South Charleston plant and thereby exposed nearby residents to an increased risk of cancer requiring diagnostic monitoring. Because Sommerville’s claim depends on proof of significant exposure, she offered environmental engineer Dr. Ranajit Sahu, who used an air-dispersion model to estimate exposure.

The district court excluded Sahu’s testimony, finding that his inputs were “speculative” and rested on assumptions that did not accurately represent the plant’s operations; it later granted summary judgment. A divided panel of the U.S. Court of Appeals for the 4th Circuit reversed, holding that the district court had crossed the Daubert line by treating disputes over Sahu’s choice of source, emissions, meteorological, and background data as admissibility problems rather than matters for cross-examination and the jury. Citing circuit precedent, the majority held that “questions regarding the factual underpinnings of the [expert witness’] opinion affect the weight and credibility of the witness’ assessment, not its admissibility.” Chief Judge Albert Diaz dissented, warning that an expert should not receive a “‘get-out-of-Daubert-free card’ simply because he uses an otherwise reliable modeling system.”

The petitioners – represented by former Solicitor General Don Verrilli – say the 4th Circuit’s approach is precisely what the 2023 amendment to Rule 702 was meant to stop. They argue that challenges to an expert’s factual basis go to weight only after the court first finds, by a preponderance of the evidence, that “sufficient facts or data support” the expert’s opinion. They frame the case as a split between the U.S. Courts of Appeals for the 1st and 4th Circuits on one side and the 5th, 6th, 8th, 9th, and Federal Circuits on the other. Numerous industry and think-tank amici have filed friend-of-the-court briefs amplifying the theme that the decision weakens Daubert gatekeeping. Sommerville responds that the petitioners have dressed up a factbound abuse-of-discretion ruling as a circuit split – every circuit, she argues, permits exclusion of expert opinions that lack record support or fail to reliably bridge data and conclusions.

In addition to the usual choice the Supreme Court faces between granting cert and denying, it could take the intermediate step of asking for the solicitor general’s views on the application of Rule 702 and Daubert here; it has done so in other cases raising such issues within the past few years.

Summary reversal bait

Walters v. Coleman arises from a single terrible day in and around Roanoke, Virginia, in March 2011. Christopher Coleman – an Iraq and Afghanistan veteran on leave from the army with PTSD and traumatic brain injury – committed three violent attacks in the Roanoke, Virginia area. He held a woman at gunpoint for two hours, eventually shooting her and leaving her partially paralyzed; after being released on bond for that offense, he attempted to run over the woman’s mother with his truck; and later still, he and a companion beat a stranger in a bar so severely that the man required surgery. Two Virginia courts sentenced Coleman to a total of 28 years of active imprisonment (18 additional years of imprisonment were suspended).

Coleman later argued that his sentencing counsel failed to present readily available mitigating evidence about his combat service, PTSD, traumatic brain injuries, and lack of juvenile criminal history. The state habeas court rejected that ineffective-assistance claim; the federal district court denied relief as to one judgment and dismissed the other challenge as untimely. A divided 4th Circuit panel reversed, concluding in a remarkable 99-page opinion that Coleman had shown constitutionally ineffective assistance of counsel under Strickland v. Washington and ordering “plenary resentencing” on both sets of convictions. Judge Allison Jones Rushing dissented, saying “the majority disregards AEDPA [the law governing habeas claims] at every turn” and had committed “an egregious overreach into the operation of Virginia’s criminal courts.”

Virginia, represented by private counsel (a former Virginia solicitor general), now seeks Supreme Court review. Virginia argues that the 4th Circuit committed two familiar transgressions under federal habeas: it failed to defer to state courts under AEDPA, and it granted relief beyond the issues Coleman himself presented. The state says the panel improperly reviewed the state-court habeas ruling de novo (anew) based on a supposed legal-standard error Coleman had not argued. It also says the 4th Circuit had no authority to disturb the Roanoke County judgment because Coleman did not appeal the district court’s ruling that his federal challenge to that judgment was time-barred.

Coleman’s opposition (which is a scant six pages long) casts the petition as mere error correction and urges the court not to miss “the forest for the trees”: in his telling, counsel’s failures led the sentencing judge to believe, wrongly, that Coleman had not been injured in the military, had a juvenile criminal record, and was lying about both. He also emphasizes that the 4th Circuit’s de novo discussion was accompanied by an alternative holding that the state decision was unreasonable even under AEDPA. For good measure, he alleges that the Director of the Virginia Department of Corrections wrote the state court’s habeas decision, which was adopted verbatim.

The Supreme Court is unquestionably taking a close look at this one. The justices recently reversed the 4th Circuit twice in AEDPA cases for failure to defer to state-court judgments in Clark v. Sweeney and Klein v. Martin – the former also involving a “party presentation” issue (that courts may rely only on arguments presented to them) similar to the one raised here.

That’s all for this week. Check back on Monday to see whether the court serves up a grant, a summary reversal, or just another helping of relist purgatory.

New Relists

Walters v. Coleman, 25-867

Issues: (1) Whether the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act and the party-presentation principle by granting habeas relief based on its de novo review of the state court’s decision; and (2) whether the 4th Circuit violated AEDPA and the party-presentation principle by granting habeas relief on a state-court judgment that was not before it.

(Relisted after the May 14 conference.)

Union Carbide Corp. v. Sommerville, 25-919

Issue: Whether, under Federal Rule of Evidence 702, challenges to the factual basis of an expert witness’s testimony always go to the weight of the evidence rather than to admissibility, as the 1st and 4th Circuits hold, or whether such challenges go to weight only if a court first finds it more likely than not that an expert has a sufficient basis to support the testimony, as the 5th, 6th, 8th, 9th, and Federal Circuits hold.

(Relisted after the May 14 conference.)

Returning Relists

Gator’s Custom Guns, Inc. v. Washington, 25-153

Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Duncan v. Bonta, 25-198

Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Viramontes v. Cook County, 25-238

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

National Association for Gun Rights v. Lamont, 25-421

Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Grant v. Higgins, 25-566

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Reinink v. Hart, 25-179

Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances.

(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Whitton v. Dixon, 25-580

Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.

(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Florida v. California and Washington, 22-O-162

Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses (CDLs) “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).”

(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

City of Los Angeles v. Estate of Hernandez, 25-538

Issue: (1) Whether the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.

(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Florida v. California and Franchise Tax Board of California, 22O163

Issue: Whether Title 18, Section 25137(c)(1)(A) of the California Code of Regulations violates the Constitution’s commerce clause, import-export clause, and due process clause.

(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)

New York Football Giants v. Flores, 25-790

Issue: Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.

(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Alabama v. Sykes, 25-847

Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.

(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Alabama v. Powell, 25-848

Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.

(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)

E.D. ex rel. Duell v. Noblesville School District, 25-906

Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”

(Relisted after the Apr. 17, Apr. 24, May 1, and May 14 conferences.)

Smith v. Kind, 25-943

Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.

(Relisted after the Apr. 17, April 24, May 1, and May 14 conferences.)

McCarthy v. Hernandez, 25-748

Issues: (1) Whether the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.

(Relisted after the Apr. 24, May 1, and May 14 conferences.)

Margolin v. National Association of Immigration Judges, 25-767

Issues: (1) Whether the decision below – in which the court of appeals held, without notice to or briefing by the parties, that the Civil Service Reform Act of 1978 does not preclude suit in district court when “a factual record” shows that the CSRA is not “function[ing] as intended” – should be summarily reversed for violating the party-presentation principle; and (2) whether the decision below should be summarily reversed for failing to adhere to this court’s precedents holding that the CSRA generally precludes challenges to federal personnel actions in district court.

(Relisted after the Apr. 24, May 1, and May 14 conferences.)

National Association of Immigration Judges v. Margolin, 25-1009

Issue: Whether the Civil Service Reform Act impliedly strips federal district courts of jurisdiction over a pre-enforcement challenge to a broad prior restraint on the speech of federal employees, even where: (a) the challenge could not be raised at all under the CSRA’s review scheme; (b) the CSRA’s review scheme would not guarantee judicial review of the challenge in any event, because the availability of judicial review would turn entirely on agency officials’ unfettered and unreviewable discretion; and (c) any judicial review would come too late to remedy the “here-and-now” injuries caused by the prior restraint.

(Relisted after the Apr. 24, May 1, and May 14 conferences.)