Professor Arguelhes is Dean of the Law Faculty at the Insper Institute for Education and Research, in São Paulo, Brazil. He obtained his LL.B. and M.A. from the State University of Rio de Janeiro, and his LL.M. and J.S.D. from Yale Law School.

First of all, it seems that Brazil has numerous high courts. Can you help differentiate between these?  

Brazil has several high courts: the Federal Supreme Court (STF), the Superior Court of Justice (STJ), the Superior Labor Court (TST), the Superior Electoral Court (TSE), and the Superior Military Court (STM). The Constitution grants each of them ultimate authority within their specific domains. While the latter three are more narrowly specialized, the STF and the STJ have a wider scope. The STJ settles issues of interpretation and application of federal statutes (including criminal law, which, in the Brazilian federation, is necessarily federal law). The STF wields ultimate authority on the interpretation and application of the Constitution. Article 102 of the Constitution establishes that the STF “has, essentially, responsibility for safeguarding the Constitution.”

In Brazil, like the U.S., all judges (including in the STJ and the other high courts) can decide not to apply a statute they consider to be incompatible with the Constitution. But, whenever constitutional review is involved, the final authority belongs to the STF. For example, a criminal case would thus typically end at the STJ, just as a labor law case would end at the TST – but both cases could reach the STF if the respective parties persuaded that court that there is a constitutional issue at stake. Since the STF is the ultimate arbiter of what is a constitutional issue, it has significant room to decide whether to include cases in its jurisdiction or not.

Focusing on the Federal Supreme Court then, how many judges are on this body? How are these judges selected?

According to the Constitution, the STF “is composed of eleven Justices, chosen from among citizens over thirty-five and under seventy years of age with notable legal knowledge and unblemished reputation.”The same article also establishes that the justices “shall be appointed by the president of the Republic, after their nomination has been approved by an absolute majority of the Federal Senate.”

After conducting a public hearing (called a sabatina) in which they interview the presidential nominee, the senators vote using a secret ballot. The appointment procedures have remained stable for more than a century, and the last time the Senate rejected a nominee was in the late 19th Century. However, there is evidence that the Senate’s preferences have been relevant in shaping ex ante the president’s choice, as they consider its political viability. Moreover, in recent years the senators have become more aggressive in this regard. In 2021, the Judicial Affairs Committee dragged its feet and took months to schedule a hearing after President Jair Bolsonaro submitted the nomination of his Solicitor-General André Mendonça (Mendonça was ultimately confirmed). Now, after much deliberate delay the Senate finally scheduled a hearing for the current Solicitor-General Jorge Messias, who was nominated by President Luiz Inácio Lula da Silva in November 2025. It would not be surprising if, in the next decade, we see a presidential nominee being rejected, or at least a president withdrawing a nomination.

Do the judges serve terms – and if so, of what length?

There is no life tenure in the Brazilian judiciary. All judges, including the STF justices, serve until the mandatory retirement age of 75 (raised from the original text’s 70, by amendment, in 2015). There are no general fixed terms of office. Since 1988, some justices served for half a dozen years, while others have been on the court for decades.

Is this court an appellate body? Or are its cases mostly matters of original jurisdiction?

The STF’s appellate and original jurisdiction are both very relevant. Like the Indian Supreme Court, it has a massive docket, receiving dozens of thousands new cases per year and issuing roughly the same number of decisions. The main force driving these numbers is the STF’s appeals docket. According to the court’s official data, between 2000 and 2025 the STF issued more than 2.9 million decisions, 2.3 million of which were on appeal. Between 2010 and 2025 it received more than 503,000 appeals of different kinds, accounting for around 63% of its docket.

These astonishing numbers must be understood in the context of the rejection of vertical stare decisis, which has been a feature of Brazilian constitutionalism for more than a century. This led to many “repeat cases” reaching the STF on appeal. In 2005, a constitutional amendment gave the STF a couple of important tools to deal with this problem: first, the Sumula Vinculante, the possibility of creating a binding interpretation of a statute or the constitution (by a vote of 2/3 of its justices); and second, a mechanism (Repercussão Geral) that allows the court to decide a single case that involves a question of broad legal relevance and is representative of other appeals in the lower courts – and then have the lower courts decide the pending cases using the “paradigm” ruling created by the court.

In the last five years, probably due in part to the effects of these mechanisms, the numbers have stabilized around 35,000 new appeals per year – still a massive docket when compared to the SCOTUS.

I’ve seen the phrase “abstract review” used – what is that?

The core of the court’s original jurisdiction are its multiple abstract review procedures, designed in the Constitution with unprecedented access and scope. Abstract review allows courts to perform constitutional review detached from any specific, concrete case or controversy. In Brazil, these procedures can be used to challenge a wide set of norms and even omissions by state agents, sometimes just a few hours after their enactment or occurrence. They can be triggered by an expansive list of entities, including all political parties with at least one seat in Congress and some civil society organizations. In this system, it is expected that any relevant political issue will be brought before the court.

As you noted, the STF has the power of judicial (and abstract) review. What other powers does it have?  From what I’ve read, the STF also has the ability to issue warrants and involves itself in trials of politicians – can you tell me about this?

This is a central question to understand the STF’s role in Brazilian politics. While its constitutional review competences are expansive, its arguably most singular feature is its original criminal jurisdiction. As you may know, the STF convicted hundreds of people (including ex-President Bolsonaro) in connection with the January 8, 2023, invasions of the buildings of the three branches of government. In those cases, the court was not just reviewing decisions made by trial judges below. It was acting as the trial court – presiding over investigations, deciding questions of fact, analyzing testimony and documental evidence, issuing injunctions to impose restrictions on the defendants, and issuing a verdict on the merits.

Those cases fell under the STF’s jurisdiction because Bolsonaro himself was one of the defendants. According to the Constitution, the STF has sole, original, and final jurisdiction over criminal investigations and trials of all members of Congress, all members of the president’s cabinet, and the president himself, amounting to more than 600 federal authorities.

These very wide criminal competences have a clear textual basis in the original 1988 constitutional text. But they were also expanded over time, both by formal amendments and by the justices’ own interpretations of their powers. The most important expansion involved establishing that, whenever there is an attack on the court, on the justices, or even on democratic institutions more generally, the chief justice can initiate investigations sua sponte and assign one of their colleagues to preside over them. This expansion was invoked in decisions rendered by the chief justice in 2019 and was confirmed by the full bench court in 2020. This allows a single STF justice to (i) initiate investigations without a request by law enforcement agencies or prosecutors and (ii) still preside over them and even vote on the merits of the case.

This combination creates problems both of separation of powers and excessive judicial prerogatives, as well as impartiality concerns. These expanded criminal competences were a key tool for the court in dealing with mass disinformation and attacks on the justices and the electoral system during the Bolsonaro era (2019-2022) and were originally expected by some to remain limited to that volatile, exceptional period. But, unfortunately, the STF’s power to initiate investigations has now become normalized. The investigations on attacks on democracy initiated in 2019 are still open to this day, and there were other instances, even in recent years, of proceedings being promoted sua sponte by STF justices.  

Are cases decided by a simple majority?

Cases that are selected for collective deliberation are decided by the plenary court of 11 justices, which necessarily decides all abstract review cases; or by one of the two five-justice chambers, which focus more on appeals, criminal proceedings, and habeas corpus petitions. These two bodies decide by a majority vote, although there are some specific rules. For example, decisions like prospectively overruling a case require a 2/3 majority.

Historically, however, an average of 90% of STF decisions every year are made by individual justices. This is a traditional, but troublesome feature of the STF. Such delegation appeared as a mechanism to cope with the overwhelming workload – both to screen out repetitive or absurd cases and allow the plenary and chambers to better focus their limited attention on relevant cases, and to allow for the issuing of emergency injunctions before an overworked court could find the time to decide collectively. Over time, however, it became clear that this delegation could (and often was) used even in high profile cases, especially via emergency injunctions. Consider, for example, that a single justice of the STF suspended the appointment of Lula to the cabinet of President Dilma Rousseff in 2016, a decision with clear political implications for her then-ongoing impeachment trial. Individual STF justices loom large in Brazilian politics, regardless of whether their views represent a majority within the court. In my view, this is the main institutional dysfunction in our system.

How is the opinion writer assigned?

The STF is a seriatim court: there is no “opinion of the court,” only individual opinions, similarly to the Supreme Court of the United Kingdom [and the U.S. Supreme Court in its early years]. The final decision is a sum of individual position; there is no institutional requirement to even try to write an opinion representing the shared views of a majority. In recent years, the justices began to collectively agree to “theses” when deciding – general statements consisting of the rule or interpretation being adopted by the majority in that case. These theses, however, still fall somewhat short of a true collective opinion, since they reflect a shared outcome more than a shared reasoning and ratio decidendi.

Still, one justice will have a specific role in writing the final decision. They will write the ementa – a summary of the decision that obtained a majority within the court – and their individual opinion will be the first one in the full text of the published decision. That justice is either the case rapporteur, if he is in the majority, or the first justice in the majority who disagreed with the rapporteur. It might sound confusing to a U.S. audience to speak of the “first” to disagree, so I need to get into some detail here.

Unlike in the U.S. Supreme Court, a rapporteur is immediately assigned when a case enters the STF’s docket and has discretion to decide when the case is ready for judgment, presenting to their colleagues a summary of the facts and arguments as well as their opinion on the case when judgment begins.

Moreover, all judgments in Brazil are public – not just the oral arguments, but the formal deliberations between the justices themselves. Anyone can attend sessions and see them deliberating live. This is a constitutional requirement. But the STF took publicity a step further: since 2002, it broadcasts all its deliberations live on a public channel (TV Justiça) and, since 2006, on its official Youtube channel as well.

When a judgement begins, justices announce their opinions according to a fixed voting order – beginning with the case rapporteur and then proceeding in order of reserve seniority. The chief justice (a position in which the justices rotate every two years) is the last to vote. Since 2020, both in the plenary court and in chambers the justices can adopt an alternative procedure to decide – the “virtual plenary.” The VP is an online, asynchronous voting platform in which judge upload their opinions within a certain time frame, with no fixed voting order, no public interaction or deliberation between them.

Is there a tradition of concurrences or dissents on the court?

Strictly speaking, since there is no “opinion of the court,” all opinions issued by the individual justices are either concurrences (if they converge on the winning outcome) or dissents (if they endorsed a defeated outcome). There have been a couple recent attempts by the justices to present collectively written opinions, but this practice is not yet institutionalized.

Dissenting is not seen as exceptional, and it does not necessarily imply strong internal disagreement or outspoken criticism of the majority. Still, it is overall less common than in the SCOTUS. According to a recent study, analysing over 423,00 collective decisions between 1988 and 2023, more than 380,000 (90%) were unanimous and 33,000 (8%) had a single dissent. When looking just at the 70,000 plenary decisions, 74% were unanimous. Of the 26% non-unanimous rulings, 19% had a single dissent, and around 1% were “close” decisions, in which the result would be different if a single judge changed their position.

When looking at those numbers, we should keep in mind the sheer size of the STF’s docket. Unlike the SCOTUS, which only decides cases that involve real legal controversy or political magnitude, the STF’s plenary and especially the two chambers often decide cases that would be considered “easy,” and perhaps should not have reached the court. According to the STF’s official data, in around 27% of the more than 8,600 abstract review decisions made since 1988 there was no decision on the merits, typically due to procedural irregularities. This shapes the overall dissent rates described above, as many of the cases were relatively uncontroversial. In contrast, in cases that the legal community would consider “hard,” dissents are not uncommon.

What were some major issues recently decided by the STF?

In 2019, the STF expanded the boundaries of the crime of “racism” so as to include homophobia and transphobia. Racism was already considered a crime in the Constitution and in statutes, but the latter two forms of discrimination were not, and the STF decided that the lack of a statute criminalizing homophobia and transphobia was an unconstitutional legislative omission. Judicial review of legislative omissions is in principle something the court is empowered to do, under some circumstances, in our constitutional system.

Also in 2019, the STF reversed itself on a key issue affecting Brazilian politics. A 2016 precedent allowed jail sentences to begin after a court of appeal confirmed the conviction but before all appeals had been exhausted. That rule had made it possible for former President Lula to begin serving jail time a few months before the 2018 elections; then, in 2019, the STF’s change of heart allowed him to wait on his appeals outside of jail.

In 2020, during the COVID-19 pandemic, the court voided a presidential decree prohibiting states and municipalities from adopting social distancing measures without prior authorization from the federal executive. That was the initial salvo in a series of cases in which Bolsonaro lost in the court on issues regarding public health and the Brazilian federation.

In 2025, the STF established a detailed set of rules for the liability of digital platforms regarding user-posted content that qualifies as disinformation, hate speech, or threats to democracy – issues that had not yet been specifically regulated by Brazilian laws on platform governance. It did so quite openly as rulemaking, not just adjudication, even though the justices emphasized the new rules were valid only until Congress legislated on the topic.

I have chosen just a few of the court’s high-profile cases from the last few years. As you can see, the justices have been far from shy in tackling controversies of extreme political and social relevance.

What have been some particularly controversial issues decided by this court historically?

In the 1990s, the STF was much more restrained. It had almost no fundamental rights cases. But even that “shy” court took the unprecedented step of intervening in the impeachment proceedings against President Fernando Collor [de Mello], in 1992. Accepting a petition by the president arguing that congressional rules of procedure gave him too little time to prepare his defense, the STF ordered it to expand the deadline. Collor petitioned the court again after he was convicted by the Senate and lost the right to run for office for eight years, despite having resigned from office just before the verdict. But here the STF sided with the Senate, upholding the restriction on Collor’s political rights. Two decades later, in 2015 and 2016, the court would once again reshape congressional procedures on impeachment, now during the trial of President Rousseff.

In the last two decades, the court decided, for example, that representatives who changed parties between elections would lose their mandate (2007); that the amnesty law enacted by the military dictatorship (which prevented the prosecution of crimes of torture committed by government personnel, for example) was compatible with the Constitution (2010); that the Constitution directly guaranteed the right of same-sex couples to enter a civil union (and ultimately convert it into marriage, for all legal purposes) (2011); that a woman or her physician could not be punished for performing an abortion in cases where the fetus had anencephalia (2012); and that race-based quotas in admissions to higher education were constitutional (2012).

The Supreme Court of the United States is often seen as partisan. Does the STF have a partisan reputation (especially with regard to curbing political corruption)?

I see the STF as a very political court – although not in the sense of being partisan. From an empirical perspective, despite some evidence of ideological voting in the STF, focusing simply on the appointing president (or the appointing president’s party) does not explain much in terms of how the justices vote. This is probably due, at least in part, to the fact that we have a multiparty presidential system, in which no single party holds a majority in Congress and therefore all governments must build a coalition to approve their initiatives in the legislature – including their STF appointments, who are therefore less likely to perfectly correspond to the preferences of the governing party.

But the justices are closely attuned to the political winds, responding sometimes to even the smallest changes in current affairs. Several justices are directly engaged with political disputes on a daily basis beyond court procedures. Some issue comments on current affairs and meet daily with politicians to discuss bills or policies – and sometimes even appointments to lower courts, public companies, and other bodies.

Moreover, the court has visibly adjusted its caselaw on high-profile issues with an eye on the current political scenario and public opinion, as it was the case with the short-lived precedent that allowed Lula to begin serving jail time even before his appeals were exhausted in 2018. I think these features of intense, real-time attunement to current politics are becoming more visible to the public. For example, a national survey in 2021 found that almost half of the respondents agreed with the idea that “the STF Justices are just like other politicians” – and that was a time when the court was at the peak of its popularity, due to its important decisions during the covid-19 pandemic.

I think I know the answer to this one, but would you say the STF is considered a particularly powerful institution – say, compared to the president of Brazil or the National Congress?

Definitely. The STF is an extremely powerful institution, and its individual justices are powerful political players by themselves. The court does not and could not “rule the country” (contrary to what some of its critics claim), but it does much more than simply ensuring politicians stay within the boundaries of the Constitution (contrary to what its justices often assert). It holds its ever-expanding criminal jurisdiction over the heads of politicians. It quite openly enacts policy and rules on several issues, acting like a co-legislator and sometimes the primary lawmaker. It shapes the political and electoral arena itself, in real time. Politicians develop their plans and electoral strategies under the shadow of the individual powers of its justices. Consider that, for most of his time in office, Bolsonaro consistently attacked the court and several of its individual judges. He turned the 2022 elections into something like a national referendum on the STF, and lost. Four years later, he was tried and convicted by that court for orchestrating a coup d’état attempt. How many courts in the world have survived a sustained showdown with the most powerful political actor in the country – and then sent him to jail?

What aspect of this court do you see as superior to that of the Supreme Court of the United States?

The mandatory retirement age, while inferior to having a fixed term for all justices, is in my view better than life tenure. Another feature is the STF’s broad abstract review jurisdiction. It tends to force the court to focus on the merits of a constitutional challenge, instead of having to invest time and effort in discussing standing technicalities. It also helps ensure that relevant constitutional questions will be reviewed by the country’s highest court, making access easier and more straightforward. I also have a positive view of the STF’s public deliberations, but here I am in the minority in Brazilian constitutional law.

What aspect of the Supreme Court of the United States do you see as superior to that of the STF?

Writing a collective majority opinion (or least being expected to try to do so) is very helpful for providing guidance to lower courts and to society in general.

Additionally, I think what judges cannot do is as important as what they can do. There are things that the U.S. justices cannot do, in contrast to the STF ones, that help create a relatively better design in the SCOTUS. The first I have already mentioned: expansive individual decision-making powers by the Brazilian justices that I have argued elsewhere to be unjustifiable. The SCOTUS, like most supreme or constitutional courts, is an institution in which internal majorities rule. Even the “rule of four” standard that is adopted for granting cert petitions, while technically a sub-majority rule, helps to constrain more extreme or idiosyncratic views within the court.

Finally, there’s a feature I haven’t yet mentioned. Although the SCOTUS has discretion in choosing what it will keep in its docket, it is expected to announce, within the same judicial year, whether it will decide the case and the decision itself. The STF, in contrast, has no deadline to decide. In fact, it is under no deadlines at all. It can keep a case on its docket for 5, 10, 15 years, and then suddenly “resurrect” it, out of nowhere, creating for itself the opportunity to rule on an issue that has become politically relevant. So here is another thing that the STF can do, but that I think it should not be able to do: to simply remain silent on a case for years and years, not saying even if it will be decided on the merits. As my colleague Ivar Hartmann and I have argued (here and here), this gives the justices too much unaccountable discretion.  

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The case centers on Muk Choi Lau, a Chinese national who became a lawful permanent resident of the United States in September 2007. In May 2012, Lau was arrested and charged under New Jersey law for allegedly selling nearly $300,000 worth of knock-off Coogi shorts. While awaiting trial, Lau left the U.S., but he returned in June 2012 and encountered immigration officers at John F. Kennedy International Airport in New York.

Lawful permanent residents, who are also known as green card holders, like Lau typically have the freedom to leave the U.S. for short periods and then return without risking their immigration status. The Immigration and Nationality Act states that, under most circumstances, they should “not be regarded as seeking an admission into the United States” and should instead be treated as if they have a right to reenter. Among the exceptions is if they have committed “a crime involving moral turpitude” – that is, a dishonest or immoral act, such as fraud or theft.    

Immigration officers, having discovered Lau’s pending counterfeiting charge, determined that he was subject to the “moral turpitude” exception. Rather than admit him into the U.S. – that is, allow him to enter the country and stay indefinitely – they paroled him, which means that they allowed him to temporarily enter the country “to face prosecution for his counterfeiting offense” but deferred consideration of his eligibility for admission.

One year later, in June 2013, Lau pleaded guilty to trademark counterfeiting. He was convicted and sentenced to two years’ probation. In March 2014, the Department of Homeland Security began the process of removing Lau from the country on the ground that he was ineligible for admission into the U.S., rather than on the ground that he had violated the terms of his green card. In other words, the government proceeded as if he was not a lawful permanent resident, which required Lau to prove he was eligible for admission, instead of requiring the government to prove he could be deported.

Lau fought his potential removal in multiple ways, including by applying for a waiver and asserting that counterfeiting is a “petty offense,” rather than a crime of moral turpitude. Most relevant to his Supreme Court case is his challenge to immigration officers’ decision to not admit him into the country in June 2012. He contended that the removal proceeding could not move forward because he had been “improperly classified” when he was paroled and should have been treated as a lawful permanent resident in good standing and granted admission.

An immigration judge sided with the government, holding that, “because Lau had already committed the crime of trademark counterfeiting when he sought reentry into the United States, he was properly classified as ‘inadmissible’ upon his arrival and was appropriately paroled.” Lau appealed to the Board of Immigration Appeals, which affirmed the judge’s decision.

Lau then asked the U.S. Court of Appeals for the 2nd Circuit to review the BIA’s decision. That appeal proved successful. The 2nd Circuit agreed that Lau had been improperly classified by the immigration officers at JFK, emphasizing that the exception on which officers relied when declining to admit him states that “[a]n alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien … has committed” a disqualifying offense. The court held, using an evidentiary standard described in a 2011 decision from the BIA, that immigration officers could not invoke that exception without “clear and convincing evidence” that Lau had committed such a crime.

“Critically, the INA does not provide that [a lawful permanent resident] may be treated as seeking admission when,” as in Lau’s case, “he has been ‘charged with a crime’ or is ‘believed to have committed a crime,’” Judge Richard J. Sullivan wrote for a unanimous three-judge panel. “[W]e do not see how charging documents alone – without more – could carry DHS’s burden of demonstrating that a crime had been committed at the time of [a lawful permanent resident’s] reentry.”

The court vacated the final order of removal and instructed the BIA to terminate removal proceedings. However, it noted that DHS could begin a new deportation proceeding under a different part of the INA, on the ground that Lau had been “convicted of a crime involving moral turpitude within five years” of being admitted into the country. 

In the ruling, Sullivan acknowledged that other federal courts of appeals have held “that the INA is unclear as to when DHS must” prove that a lawful permanent resident has committed a disqualifying crime to treat that resident like he is ineligible for admission. Unlike the 2nd Circuit, these other courts would have been satisfied by Lau’s eventual conviction, which provided confirmation, after the fact, that Lau had indeed committed a crime before meeting with immigration officers at JFK.

U.S. Solicitor General D. John Sauer highlighted this conflict among the courts of appeals when he asked the Supreme Court to review the 2nd Circuit’s ruling. In January, the justices agreed to determine whether immigration officers needed “clear and convincing evidence” that Lau had committed trademark counterfeiting at the time they paroled him, or if it is, instead, enough for the government to produce that evidence during removal proceedings.  

In the government’s brief on the merits, Sauer first contended that the authority of federal appeals courts to review removal orders does not extend to the decisions immigration officers make at the border or ports of entry. “The INA makes clear that ‘no court shall have jurisdiction to review’ a discretionary parole decision,” he wrote. Even if the 2nd Circuit could review whether Lau was properly paroled, Sauer continued, it could not cabin its review to “only the evidence that immigration officers at JFK had at the time,” because there is “nothing in the INA to support that limitation.” Instead, the INA instructs immigration judges to focus on “‘the evidence produced at the hearing’” before them.

Sauer further argued that focusing on what can be proved at the time of reentry, rather than the “clear and convincing evidence” produced during a future removal proceeding, “is contrary to historical practice and good sense. Immigration officers,” he explained, “must handle a large inflow of aliens each day, making quick decisions about each one. Requiring them to conduct mini-trials with clear and convincing evidence is inconsistent with that role.” Even if they had more time, according to Sauer, they would likely “lack access to relevant evidence.” “The net result would be to effectively nullify the ability to parole [lawful permanent residents,] including to face prosecution.”

In his merits brief, Lau countered that the government is “ignor[ing] clear textual limitations” in order to have an easier route to removing lawful permanent residents from the country. “[I]t would rather be able to pursue inadmissibility proceedings against” these residents “than have to pursue the deportations proceedings that the INA makes clear it must follow,” he wrote. Lau also challenged the government’s claim that federal courts of appeals cannot review parole decisions. “[T]he INA,” he noted, “permits judicial review of ‘questions of law.’” The question of “‘whether a noncitizen is statutorily eligible’ for a discretionary decision like parole” is one such question, Lau said.

Finally, Lau contended that immigration officers are fully capable of assessing whether noncitizens have committed a disqualifying crime – and that they have been doing so for decades. “If federal officials could assess criminal history at the border in the era of wooden ships and oil lamps, it’s hard to believe that DHS officials can’t do so today,” according to the brief.

The court’s decision in Blanche v. Lau is expected by early July.

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On Site

From the SCOTUSblog Team

Why does the government keep showing up at the Supreme Court uninvited?

Although the federal government frequently files “friend of the court” briefs in the Supreme Court, it has been – at least until recently – unusual for it to do so at its own initiative when a petition for review is still pending. What led to the surge in “uninvited” briefs?

Contributor Corner

What cases might the court grant next?

In his Empirical SCOTUS column, Adam Feldman analyzed the petitions for review being tracked on SCOTUSblog’s petitions page, exploring which ones carry the strongest likelihood of being granted.

SCOTUS Outside Opinions

The (non-)partisan puzzle in the conversion therapy case

In a column for SCOTUSblog, Craig Konnoth revisited the court’s 8-1 ruling in Chiles v. Salazar, holding that Colorado’s law prohibiting licensed counselors from seeking to change the sexual orientation or gender identity of minors was subject to strict First Amendment scrutiny. Specifically, Konnoth reflected on the significance of Justices Sonia Sotomayor and Elena Kagan’s decision to join the majority.

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In Chiles v. Salazar, the Supreme Court held that Colorado’s law prohibiting licensed counselors from seeking to change the sexual orientation or gender identity of minors was subject to strict First Amendment scrutiny – a victory for opponents of the law. The statute, the court held, was protected speech, and discriminated based on viewpoint by allowing the counselors to engage in therapies that affirmed specific sexual orientations and gender identities, but not speech that sought to change them.

Perhaps most surprisingly, despite its politically contentious nature, Chiles was an 8-1 decision, with the senior justices on the liberal wing of the court – Justices Sonia Sotomayor and Elena Kagan – joining the majority opinion in full. Kagan (joined by Sotomayor) also wrote separately to suggest that while certain regulations of conversion therapy might pass muster, the viewpoint-based approach of the Colorado law went too far. Justice Ketanji Brown Jackson alone claimed that the law did not trigger heightened scrutiny and would have allowed it to stand instead of sending the case back to the lower court.

The rift between Jackson and the more moderate end of the liberal bloc has received some airtime – it is not unheard of for Sotomayor and Kagan to join the court’s conservative wing, leaving Jackson on her own. But, a split is statistically rare among the liberal justices in First Amendment cases. Further, liberal unanimity was a feature of the three cases between 2022 (when Jackson joined the bench) and 2025 with LGBT-rights implications. While LGBT advocates lost the cases, the court’s liberals dissented jointly. Indeed, up until Chiles, Jackson had never written a solo opinion in a case involving LGBT rights – she simply joined the senior justices’ dissents.

It could always be the case that the justices simply see the law on this issue differently. But given the history of overlap, there is at least some possibility that there was a view of the law the three justices would have coalesced around, but for strategic or ideological considerations did not. So are Sotomayor and Kagan trying to soothe and placate a conservative majority? And is Jackson simply an ideologue, as some have contended, blindly hewing to LGBT orthodoxy? 

Why the majority opinion got it wrong

The majority opinion’s analysis began with a paean to the First Amendment: “The First Amendment ‘envisions” that all individuals will have “the ‘freedom to think as you will and to speak as you think,’” even when speech “can be misguided, offensive, or cause ‘incalculable grief.’”

The principle is, of course, fine, but it is somewhat divorced from reality: in practice we do not want, or expect, doctors to have full “freedom to think as [they] will and to speak as [they] think.” We certainly do not want medical advice that is “misguided, offensive, or caus[ing] ‘incalculable grief.’” Rather, we expect doctors to apply the knowledge they obtained through their medical education. That knowledge is usually developed, debated, and refined in research settings, not in clinical practice. Indeed, it would be unethical for practitioners to try out new, untested ideas they have on their patients – indeed, that is what American doctors did with certain Black patients.

The court suggests that many of these harms can be averted because of an explicit exception to strict scrutiny from previous cases: “incidental[] burdens [on] speech” connected to conduct (rather than speech itself), escape heightened scrutiny. Medical advice, the majority claims, is usually connected to some kind of conduct or procedure the physician seeks to carry out and therefore falls into that exception. Along those lines, the court’s conservative majority has upheld state laws forcing doctors to provide (often misleading) information to patients seeking abortion because that speech was connected to a medical procedure. The Colorado law, however, targets talk therapy, which, the court’s majority points out, is unconnected to any separate conduct. 

But this procedure-based distinction is incoherent. Not only is the court unclear with what constitutes a procedure (as best as I can tell, prescribing medication counts as a procedure), but also, as an amicus brief I filed in the case explains, a huge amount of the most important medical speech is not connected to a procedure. For example, pediatricians often recommend “watchful waiting” for children with ear infections, minor viral illnesses, foreign bodies in their digestive system, and slower-than-usual development. Internists often advise rest and hydration for mild gastrointestinal or respiratory symptoms; oncologists might have to inform patients that there is nothing to be done for their condition; and geriatricians might counsel families about dementia.

Such speech has created malpractice liability for over a century. Before antibiotics were discovered in the 1950s, physicians’ most effective assistance was providing information that did not involve procedures. Rather, they would provide advice on how infection spread and how to avoid it – and when they made mistakes, patients filed (and won) malpractice suits. More recently, patients have continued to advance medical malpractice claims in cases where a doctor has offered incorrect information about the genetic risks of reproduction, foreign bodies passing through the digestive system, failed to make a diagnosis, and so on. In psychological contexts, courts have recognized liability for therapists using incorrect techniques, creating false memories or allegations of sexual abuse, and for using abusive speech.

These malpractice suits penalize speech when no procedure is involved, and thus do not fall within the “incidental burden” exception. So how are they permissible under the First Amendment? The court makes an offhanded, ad hoc acknowledgement that “traditional tort malpractice claims” do not trigger heightened scrutiny (without explaining why). But such malpractice suits, the court claims, are different from Colorado’s law on one key ground: malpractice suits require, they claim, “[e]xacting proof requirements,” that may “provide sufficient breathing room for protected speech.” 

This makes little sense. Like most of the country – and as in the vast majority of civil suits – the proof requirement for such a plaintiff in Colorado is preponderance of evidence. Which is exactly the same evidentiary standard that apply to licensing proceedings for Colorado professional counselors (not to mention, the extra layers of judicial review that apply to all administrative proceedings). In other words, the court’s reasoning in this important constitutional case hangs entirely on an evidentiary standard distinction which does not exist.

Not only was the majority’s reasoning off, its rhetoric was puzzling. In particular, the court defended its skepticism of relying on medical standards by citing to Buck v. Bell, where the court (also 8-1) backed a eugenic state law allowing for the sterilization of individuals with mental disabilities. But the eugenic sterilization laws at issue in Buck were regularly applied to gay people on the ground that homosexuality was an illness. That is the viewpoint that the court’s opinion defends, not one it rejects. Thus, Sotomayor and Kagan appear to have subscribed to both reasoning and rhetoric that are wanting. 

Explaining the compromise

Of course, it is possible that Sotomayor and Kagan are in full accord with the majority opinion they signed on to. But given the court’s reasoning and rhetoric, it is also possible they did so as a strategic compromise – something certainly not unheard of on the current court (or those before it).

One indication of strategic compromise lies in the citations in Kagan’s concurrence. Apart from citing to opinions by herself and Sotomayor, she cites only two other justices –Justice Stephen Breyer (who was Jackson’s predecessor), and Justice Amy Coney Barrett. As the New York Times reported, Barrett has apparently long been the subject of overtures from Kagan, and often, Sotomayor, perhaps to good effect.

If Kagan and Sotomayor acted strategically, to what end? First, as is not unusual on the court, they might have joined the majority to cabin its opinion. The majority’s opinion, for example, contains language that promises that “a law … prohibiting counselors from … affirming their clients’ homosexuality,” would also be subject to strict scrutiny. This concession that anti-gay speech would be treated on equal terms as pro-gay speech is significant. In the abortion wars, for example, the court’s conservative majority upheld a Pennsylvania law mandating doctors to engage in anti-abortion speech but then invalidated a California statute that required pro-reproductive rights speech.  

There are also a few other possible concessions the liberal justices may have obtained. For example, the court stops short of adopting the reasoning of the U.S. Court of Appeals of the 10th Circuit’s dissent, which discounted the evidence regarding the inefficacy and problematic nature of conversion therapy. Instead, the majority opinion in Chiles takes no stance on conversion therapy’s efficacy, noting only that it is the “subject of ‘fierce public debate.’” And though the opinion states that heightened First Amendment scrutiny applies, it does not apply such scrutiny and strike down the law itself, leaving this analysis to the lower court.

In joining the majority, Kagan and Sotomayor might have also had their eye to the future. As Kagan’s concurrence explains, “[m]edical care typically involves speech, so the regulation of medical care …. may involve speech restrictions… [that] refer to the speech’s content.” Perhaps the justices foresee a case in which content-based regulations that are putatively viewpoint-neutral are challenged.

What might such content-based but viewpoint-neutral regulations look like? Here, Kagan gestures to Jackson’s opinion, which lists laws requiring speech that “ ‘promote[s] the welfare, autonomy and best interests of’ the client,”  treats the client “humane[ly],” “‘assure[s] client welfare and protection’ during medical care,” and that prohibits speech that is “cruel” or contains unverifiable “claims of professional superiority.” Perhaps Kagan and Sotomayor see provisions like these as second-best alternatives to protect LGBT children that the conservative majority will uphold. (Given the conservatives’ past behavior, and the chimerical distinction between content- and viewpoint-based regulations, I believe that hope to be overoptimistic).

Even if Kagan and Sotomayor achieved significant concessions, this does not mean Jackson was wrong to dissent. While I believe her dissent misses some key points (such as the licensing and malpractice ones emphasized above), she presents a powerful corrective to the majority’s framework. And, unlike the majority opinion, Jackson emphasizes that LGBT identity is simply “a part of the normal spectrum of human diversity” – not something to be “cured.” In that way, while the split between the court’s liberal justices can be portrayed as a schism, it can also be portrayed as teamwork, with one set of justices engaging in compromise, and another justice providing a vision of what that compromise can one day achieve.

The post The (non-)partisan puzzle in the conversion therapy case appeared first on SCOTUSblog.

Looking across the petitions currently tracked on SCOTUSblog’s designated petitions page, we can see some patterns about what types of cases the court may be interested in hearing in the 2026-27 term.

First, the relist numbers (that is, cases considered at multiple conferences – which can mean the court is seriously considering taking these up) are unusually high this term. Of the relisted cases, several have been relisted eight or more times – a level of sustained conference attention that historically correlates strongly with an eventual grant. Smith v. Scott, about whether police officers’ use of force to restrain a suspect violated the Fourth Amendment, leads at 17 relists, a figure that almost never appears for petitions that are eventually denied.

Second, the amount of Second Amendment cases is larger and more coordinated than anything seen since the post-Bruen term (in which the court found that one had a right to carry a concealed firearm) began working through its downstream cases. Five petitions from different circuits, involving both magazine capacity restrictions and assault-style rifle bans, are pending simultaneously.

Third, a set of parental-rights cases is building alongside the more visible Second Amendment ones, and the relist numbers there – 11 for Foote v. Ludlow School Committee (concerning whether a school district violated a couple’s parental rights when it encouraged their child to transition to a different gender identity), with nine amicus briefs filed at the cert stage – suggest the court has been doing something more than giving routine consideration to these cases.

What follows works through these petitions, those carrying the strongest likelihood of being granted, and a separate look at the earlier-stage petitions where the data is thinner, to try and get an understanding of what might be heard next term.

What’s covered

The analysis is based on a comprehensive tracker of pending cert petitions across four categories: relisted cases, petitions set for the next conference, featured petitions (by SCOTUSblog), and calls for the views of the solicitor general. Each case is assessed using a weighted formula that treats relist count as the most important factor, then layers in circuit split confirmation, dissents below, CVSG status, whether the solicitor general is a petitioner, amicus activity at the cert stage, and counsel quality to determine which cases are most likely to be granted.

The clusters

The Second Amendment cluster

The broadest story on the current docket is the accumulation of Second Amendment petitions, all pressing variations of the same question left open after the 2022 case of New York State Rifle & Pistol Association v. Bruen: what categories of commonly owned firearms and accessories fall within the Second Amendment’s protection?

The strongest vehicle in this cluster, based on the current data, is Duncan v. Bonta, on whether states can ban large-capacity magazines. Duncan has been relisted 11 times, has a confirmed en banc dissent in the U.S. Court of Appeals for the 9th Circuit below, presents a genuine circuit split on magazine capacity restrictions, and is represented by Erin Murphy of Clement & Murphy. The petition also carries a takings clause hook, challenging the requirement that owners dispossess themselves of lawfully acquired magazines without compensation. Five amicus briefs were filed at the cert stage. Across every dimension the model weighs, Duncan is a strong contender for cert.

Viramontes v. Cook County presents the assault-style rifle question directly – whether the Second and 14th Amendments protect the right to possess AR-15 platform rifles in common use. David Thompson of Cooper & Kirk represents the petitioner, the case has been relisted 11 times, and SCOTUSblog has featured it as a case to watch. The U.S. Court of Appeals for the 7th Circuit issued the opinion below as a per curiam on June 2, 2025, with no dissent – which, while not a negative signal, means the case lacks the additional cert indicator that a written dissent would provide. What gives the petition its force is the acknowledged four-to-seven circuit split on assault weapon bans and the weight of the relist count.

Grant v. Higgins presents the same assault-style rifle question from the U.S. Court of Appeals for the 2nd Circuit, also represented by Thompson and Cooper & Kirk, and relisted six times. The two cases are direct companions. If the court grants Viramontes, it will almost certainly hold Grant pending the outcome in the former case or consolidate them.

The large capacity magazine side of the cluster has two additional petitions: Gator’s Custom Guns v. Washington, a Washington Supreme Court vehicle with 11 relists and Erin Murphy as counsel again, and NAGR v. Lamont, which combines the assault rifle and LCM questions in a single 2nd Circuit petition, relisted six times.

The court is unlikely to grant all of these cases. Based on the relist clustering, the most plausible scenario is that the court grants one of the rifle cases and one of the magazine cases – though which it selects is not something the available data can resolve.

The parental rights cases

Two cases are building toward what may become the term’s most significant ruling outside of the Second Amendment context.

Foote v. Ludlow School Committee asks whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, it encourages a student to socially transition to a different gender identity. The U.S. Court of Appeals for the 1st Circuit ruled against the parents in February 2025. The petition has been relisted 12 times, nine amicus briefs have been filed at the cert stage – an unusually high number – and Alliance Defending Freedom represents the petitioners through John Bursch. A companion case, Lee v. Poudre School District R-1, is pending from the U.S. Court of Appeals for the 10th Circuit on a similar question.

Littlejohn v. School Board of Leon County comes from the U.S. Court of Appeals for the 11th Circuit and presents a related but distinct constitutional question: whether parental-rights claims challenging school gender identity policies require the demanding “shocks the conscience” test or a less rigid standard. Judge Gerald Tjoflat dissented from the majority opinion siding with the school, calling the decision “as wrong as it is ominous.” Cameron Norris of Consovoy McCarthy represents the petitioners, and Florida, joined by 21 other states, filed an amicus brief. The case has not yet been relisted – relist count is the strongest single factor in terms of cert possibility, and its absence keeps Littlejohn a tier below Foote for now. But the Tjoflat dissent and multi-state amicus coalition make this one of the cases most worth tracking as it moves through the conference cycle.

Other candidates

Beyond the clusters above, three individual cases also stand out as cert contenders.

As noted earlier, Smith v. Scott has been relisted 17 times. That figure is not common and almost never appears for petitions that are eventually denied. The case asks whether officers acted reasonably under the Fourth Amendment in using pre-handcuffing bodyweight pressure on a potentially armed individual resisting arrest, and whether qualified immunity was properly denied when no prior case clearly established a violation. Megan Wold of Cooper & Kirk represents the petitioner. The court has also requested the record of the case twice (which shows obvious interest in it from at least some of the justices). A petition at 16 relists with record requests is, in the historical pattern, headed toward either a grant or a summary disposition (judgment without oral argument or full briefing) – though there is no guarantee of either.

District of Columbia v. R.W.  has been relisted nine times, with the District of Columbia as the petitioner and the respondent having initially waived opposition. The case raises a Fourth Amendment reasonable suspicion question – specifically, whether that analysis may exclude facts known to the officer at the time of the stop. A government petitioner, eight relists, and a recurring Fourth Amendment methodology question together make this a case to watch.

Poore v. United States asks how prior precedent constrains deference to the U.S. Sentencing Commission’s interpretation of its own Guidelines commentary – a question that has divided circuits. Neal Katyal of Milbank LLP represents the petitioner and the case has been relisted nine times, with a related petition in Beaird v. United States also pending. The solicitor general has opposed certiorari, which is a genuine counterweight. But nine relists with elite counsel on a developed circuit split is a pattern associated with eventual review.

St. Mary Catholic Parish v. Roy explicitly asks the court to overrule the 1990 case of Employment Division v. Smith, one the court’s most important free exercise cases. The Becket Fund’s Eric Rassbach represents the petitioner, 10 amicus briefs were filed at the cert stage and Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch have each written separately about their interest in revisiting Smith. It has been relisted one time.

The CVSG and solicitor general brief watch

Several petitions on the docket have received calls for the views of the solicitor general. Historically, roughly 70-75% of cases that receive a CVSG are eventually granted.

Does 1-2 v. Hochul asks whether a New York law that effectively mandates denial of all religious accommodations to healthcare workers is preempted by Title VII’s accommodation requirement for religious beliefs. Five amicus briefs have been filed.

On the administrative law side, Department of Labor v. Sun Valley Orchards is a solicitor general petition asking whether Article III precludes Congress from assigning H-2A visa penalty adjudications to the Labor Department rather than an Article III court. The U.S. Court of Appeals for the 3rd Circuit held this unconstitutional. This is a first-conference petition; a solicitor general’s petition challenging a circuit decision that invalidated a federal statute is something the court frequently takes up, but it often needs time to develop.

The earlier-stage petitions

Then there are petitions I’ve tracked that are at or near their first conference and have not yet accumulated a relist history. The most predictive variable that a case will be granted, relist count, is effectively zero for all of them.

That does not mean, however, they are unlikely to be granted. It means the court has not yet signaled anything meaningful about them, or in some cases has only just begun to do so. Several carry certain features – elite cert counsel, confirmed circuit splits, government petitioners, sophisticated amicus coalitions – that in other contexts would be associated with serious cert consideration.

A few worth flagging within this group: Johnson v. United States presents a clean Jardines follow-up dealing with apartment door drug-detection dog sniffs, with a confirmed circuit split and Skadden arguing below. Youth 71Five Ministries v. Williams brings a free exercise question with Alliance Defending Freedom at the cert stage and six amicus briefs filed. Johnson & Johnson Consumer v. Noohi raises a class-certification issue with a five-amicus coalition including elite counsel and the Chamber of Commerce. AstraZeneca v. Kennedy represents a constitutional challenge to the Inflation Reduction Act’s drug-pricing negotiation program with significant industry backing. And Margolin v. NAIJ is a solicitor general petition on immigration judges’ union speech which previously appeared on the emergency docket.

Of course, these case could be denied at the next conference, or could begin accumulating relists. In late spring, we will revisit where they have landed.

The post What cases might the court grant next? appeared first on SCOTUSblog.

In addition to the briefs filed by the preschool and the state in St. Mary Catholic Parish v. Roy, there are 21 “friend of the court,” or amicus, briefs supporting the preschool’s appeal, filed by groups ranging from the U.S. Conference of Catholic Bishops to a large coalition of states, led by West Virginia. But one amicus brief, in particular, stands out: a brief filed by the Trump administration, arguing that the decision by a federal appeals court in favor of Colorado was “seriously” wrong and that the Supreme Court should take up the case. Although the federal government frequently files “friend of the court” briefs in the Supreme Court, it has been – at least until recently – unusual for it to do so at its own initiative at this stage of the process. What might be going on here?

Some background

The federal government most commonly files amicus briefs in the Supreme Court at the “merits” stage – that is, after the justices have agreed to take up a case and hear oral argument on the merits, leading to a written decision. Indeed, during the court’s March argument session, the Trump administration filed amicus briefs in three of the five cases in which it was not involved as a party – involving federal election law, bankruptcy rules, and discrimination in jury selection.

Roughly one dozen or so times each term, the court “calls for the views of the solicitor general,” which means that it invites the federal government to file a brief that weighs in on what the court should do with a particular petition for review. Such an order, which is known as an “invitation,” is particularly common in cases in which the government isn’t a party but may still have an interest — for example, because the interpretation of a federal statute is involved. When the brief is filed, the government’s recommendation, although not dispositive, normally carries significant weight with the court.

The “uninvited” brief

As John Elwood chronicled in an earlier story, it has been far rarer (although not unprecedented) for the federal government to file amicus briefs without a request from the court before the justices grant review. Since 1995, the federal government has only filed 23 such briefs – an average of fewer than one per year over 31 years (although, as Elwood explains, the briefs have not necessarily been spread out evenly over that time). But five of those have been submitted by the Trump administration in the last 13 months alone, beginning in March 2025. And the Trump administration filed two more in cases that were pending on the interim docket – again, without waiting for an invitation from the justices.

So what explains this recent and significant uptick in uninvited amicus briefs? One partial explanation is provided in the government’s brief in the Catholic preschool case. In the section of the brief labeled “Interest of the United States,” U.S. Solicitor General D. John Sauer writes that “[t]he government’s decision to file an uninvited certiorari-stage amicus brief reflects its views about the severity of the court of appeals’ error, the recurrence of the question presented, and the significant benefit that further clarity in this area of the law would provide to the lower courts, federal and state governments, and the public.” More broadly, the case also implicates several issues that have been front and center for the Trump administration in its second term, such as religious freedom, the use of public funds for private religious schools, and a strong opposition to diversity, equity, and inclusion initiatives.

Indeed, the cases in which the Trump administration has opted to file uninvited briefs suggest that the Trump administration has focused on particular areas of the law as priorities for Supreme Court review. While the cases in which the Supreme Court seeks the federal government’s views often tend to involve relatively technical questions – such as bankruptcy, employee benefits, and trademark law – the cases in which the solicitor general has filed uninvited briefs present higher-profile, and more controversial, issues. In addition to the Catholic preschool’s challenge, the Trump administration has supported a petition from Alabama, in which the justices were asked to overturn a decision by a federal appeals court holding that a defendant is intellectually disabled and therefore cannot be executed; filed a brief supporting prison officials, who were seeking review of a lower-court decision allowing an inmate to bring a claim seeking compensation for the use of excessive force against him; agreed with gun owners that the court should decide whether Hawaii could ban them from bringing guns on private property without the owner’s express permission; and encouraged the justices to grant a petition by energy companies that are being sued by state and local governments for their role in climate change.

On the court’s interim docket, the Trump administration has supported requests to pause lower-court orders in two disputes over congressional redistricting, a top priority for President Donald Trump. In one pair of applications, New York Republicans were seeking to block an order that would have required the state to redraw its congressional map to add Black and Latino voters to the only district in New York City currently represented by a Republican. And in the other, Texas sought to use its new congressional map, which it hopes will create an additional five Republican seats in its congressional delegation, despite a lower-court ruling that the map unconstitutionally sorts voters based on race.

The impact – and message – of the Trump administration’s uninvited briefs

In the cases in which it has filed uninvited amicus briefs, the Trump administration’s batting average thus far has been impressive. In four of the five cases in which it has filed briefs since January 2025 supporting petitions for review, the Supreme Court granted three of those petitions and summarily reversed – that is, threw out the lower-court decision and ruled in favor of the litigant seeking Supreme Court review without additional briefing or oral argument – in the fourth. (The court has not yet acted on the fifth petition for review, filed by the Catholic preschool in Colorado.) The justices also granted the requests to pause the lower-court orders in the Texas and New York congressional redistricting disputes.

It’s a fair question, however, whether the government’s briefs actually made a difference in the justices’ disposition of the petitions for review and stay requests. After all, none of these cases were likely to fly under the radar on today’s conservative court. And, as Elwood noted in his story, increasing the number of such filings is not risk free. First, he observed, too many uninvited amicus briefs could collectively dilute the impact of any individual brief. “A justice encountering such a brief today,” he wrote, “may reasonably wonder whether it signals a truly exceptional case or merely reflects a more assertive … posture by the executive branch.” And conversely, will the court construe the absence of an uninvited amicus brief as an implicit sign that the federal government does not regard the dispute as an important one? Second, Elwood noted, adding these briefs compounds the workload of a small, but already very busy, solicitor general’s office. (This is especially true because uninvited amicus briefs supporting petitions for review and stay applications almost always operate on a much faster timeline than amicus briefs filed at the court’s request or at the merits stage of a case.)

But the Trump administration may believe that these risks are worth taking not only to influence whether the court grants review or a stay, but to shape the case or question before the court. And although such requests have supported conservative outcomes, they have also occasionally sought to limit the potential effects of the court’s decision. 

In Hamm v. Smith, Alabama asked the justices to review a decision by the U.S. Court of Appeals for the 11th Circuit that set aside Joseph Smith’s death sentence on the ground that he was intellectually disabled and therefore could not be executed. The state’s petition for review outlined two specific questions it wanted the justices to take up: whether, under the Supreme Court’s 2001 decision in Atkins v. Virginia, barring the execution of people with intellectual disabilities, a state can require a defendant to show that his IQ is 70 or lower; and whether courts evaluating multiple IQ scores must find that every valid score of “about” 75 or lower supports a claim under Atkins.

When it granted review, however, the Supreme Court adopted a different question, which had been proposed in the government’s uninvited amicus brief: “Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.” There is no way to know with any certainty why the Trump administration opted to suggest this question in place of Alabama’s. The federal government’s brief supporting review emphasized that it has “a direct interest in the proper framework to establish intellectual disability because” both Atkins and a federal law bar the execution of the intellectually disabled. The government may believe that its proposed test would provide more guidance going forward in other death penalty cases than Alabama’s – including in federal cases.

And in Goldey v. Fields, federal prison officials urged the justices to review a ruling by the U.S. Court of Appeals for the 4th Circuit that allowed an inmate to bring a “Bivens claim” – that is, a claim alleging that the officials had violated his constitutional rights, even if there is no specific federal law authorizing his lawsuit – alleging the use of excessive force, in violation of the Eighth Amendment. The officials argued that the court should take up their case and “reject not just this type of Bivens action, but the entire concept of a judicially inferred cause of action to enforce the Constitution.”

The Trump administration instead called the dispute the “rare case that calls for summary reversal” rather than full briefing and oral argument because the lower court’s ruling “flouts” the Supreme Court’s case law. Although it is unclear why the government sought this narrower holding, it is possible they were thinking strategically: The court has turned down previous requests to reconsider Bivens altogether, and the government may not have wanted to squander its credibility with the court by asking it to do so, only to have that plea also declined. With an appeal to overrule Bivens off the table, the government may then have preferred the strong message that would flow from a summary reversal. Whatever the government’s reason, in a unanimous, three-page, unsigned decision on June 30, 2025, the justices followed its recommendation and summarily reversed.

The government has taken a similar, more limited approach in St. Mary Catholic Parish v. Roy, the Catholic preschool case that it will consider on Friday. In its petition for review, the preschool asked the justices to take up three questions, including whether to overrule the court’s landmark 1990 decision in Employment Division v. Smith, in which the justices held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone. 

The Trump administration, by contrast, has asked the justices to consider just one question, which echoes the first question presented by the preschool’s petition for review: whether laws like Colorado’s “qualify as neutral and generally applicable under Employment Division v. Smith, so long as the exemptions are not for identical secular conduct and do not involve unfettered discretion.” If the court resolves this question, the Trump administration told the justices, it would not need to decide now whether to overrule Employment Division v. Smith itself. Instead, the government suggested, the court could simply make clear that the lower court was wrong to conclude that the Colorado law (and others like it) is not neutral and applicable to everyone.

Will the justices ultimately grant the Catholic preschool’s petition for review? And, if so, what question or questions will it take up? Stay tuned; we could know more as soon as Monday at 9:30 a.m. EDT. But no matter what the court does, it seems likely that the current trend of uninvited amicus briefs from the federal government will continue.

The post Why does the government keep showing up at the Supreme Court uninvited? appeared first on SCOTUSblog.

On Site

From the SCOTUSblog Team

Justice Sotomayor apologizes for “inappropriate” remarks about Justice Kavanaugh

Just over one week after lobbing pointed personal criticism at Justice Brett Kavanaugh for his concurring opinion in a decision by the Supreme Court that lifted restrictions on immigration stops that the challenger said are based on racial profiling, Justice Sonia Sotomayor called her remarks “inappropriate” and indicated that she had apologized to Kavanaugh.

Case Preview

Justices to consider when federal courts may review state-court decisions

The justices on Monday will hear argument on the circumstances in which lower federal courts may review state-court judgments. The case highlights persistent confusion over lower court jurisdiction, which the justices tried – apparently unsuccessfully – to resolve just over two decades ago.

Case Preview

Court to contemplate SEC’s use of disgorgement in securities enforcement

Monday’s argument in Sripetch v. SEC will be yet another chapter in the court’s sustained examination of the Securities and Exchange Commission’s use of certain remedies in its enforcement of the securities laws. The specific question here is whether the SEC can use “disgorgement” to force a wrongdoer to turn over its profits to the government without showing directly that the wrongdoer’s activities harmed its customers.

Relist Watch

“Universal” pre-K causes court to re-re-reconsider major religious precedent

In his Relist Watch column, John Elwood explored the one new relist that will be considered by the justices this week: St. Mary Catholic Parish v. Roy, which addresses Catholic schools’ inability to participate in Colorado’s universal preschool program and presents an opportunity to overrule a 1990 case, Employment Division v. Smith, in which the court held that the free exercise clause does not exempt religious observers from compliance with neutral, generally applicable laws.

Contributor Corner

Last arguments of the term: huge cases for the Fourth Amendment and immigration

The court’s April argument session includes two important immigration cases as well as one of the biggest Fourth Amendment cases in years, according to Rory Little. He offered a brief overview of these disputes in his ScotusCrim column.

The post SCOTUStoday: Sotomayor apologizes to Kavanaugh; Jackson criticizes her conservative colleagues appeared first on SCOTUSblog.

Sotomayor’s comments came during an April 7 appearance at the University of Kansas Law School. She referred to Kavanaugh’s concurring opinion in Noem v. Vasquez Perdomo, in which he suggested that even if immigration officers stopped people who were U.S. citizens or were in this country legally, “the questioning in those circumstances is typically brief, and those individuals may promptly go free” once they prove that they are “U.S. citizens or otherwise legally in the United States.” Sotomayor did not refer to Kavanaugh by name, but she suggested that the author of the concurring opinion did not understand the actual impact of such stops. In particular, she appeared to imply that Kavanaugh had led a sheltered or privileged life, telling the audience that the opinion had come from “a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”

Remarks like Sotomayor’s are unusual, and on Wednesday afternoon Sotomayor apologized for them. In a three-sentence statement released by the court’s Public Information Office that once again did not refer to Kavanaugh by name, she stated: “At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.”

The justices return to the bench for oral arguments on Monday, April 20.

The post Justice Sotomayor apologizes for “inappropriate” remarks about Justice Kavanaugh appeared first on SCOTUSblog.

Since our last post, the Supreme Court has done a bit of spring cleaning of the relist rolls. In its last order list, the justices granted review in Johnson v. United States Congress, a veterans-benefits case asking whether the Veterans’ Judicial Review Act stripped district courts of jurisdiction to hear constitutional challenges to acts of Congress affecting veterans’ benefits. Both petitioner Floyd (“the Barber”) Johnson and the solicitor general supported review, so not much of a surprise there.

Much of the action came in the form of court orders granting writs of certiorari, vacating the judgment below, and remanding for further consideration of various factors. Both nine-time relist Sittenfeld v. United States (involving a Cincinnati city council member’s fraud conviction) and three-time relist Bannon v. United States (involving the former advisor to President Donald Trump convicted of contempt of Congress) were GVR’d for reconsideration in light of pending motions to dismiss their indictments as a result of presidential pardons. The government’s cert petition in eight-time relist Federal Bureau of Investigation v. Fazaga also was GVR’d for “reconsideration in light of recent factual developments pertinent to this case and the government’s motion to dismiss.” The petition involved the government’s claim that the U.S. Court of Appeals for the 9th Circuit had gutted the state secrets privilege in a case involving a claim by Muslim community members in Southern California that the FBI targeted them for surveillance solely because of their religion. But the relevant development was that Craig Monteilh, the FBI informant who was the linchpin of Fazaga’s claim, has since recanted the statements on which the claim was based.

The biggest head-scratcher was the court’s decision to deny review without comment in Stroble v. Oklahoma Tax Commission, even after relisting it eight times. The case involved whether Oklahoma may tax the income of a tribal member who lives and works in Indian country. Clearly, the case occasioned a certain amount of discussion if the justices relisted it for basically three months. That’s an unusually long runway for a quiet denial.

But let’s move on to new business. This week, there are a whopping 259 petitions and applications on the docket for this Friday’s conference. But only one of those cases is a new relist: St. Mary Catholic Parish v. Roy.

The 1990 case of Employment Division v. Smith held that the free exercise clause does not exempt religious observers from compliance with neutral, generally applicable laws (that is, laws applying to everyone and which do not target a particular religious group) – even if those laws substantially burden their religious practice. In recent years, there has been increasing conflict over when laws are generally applicable as well as whether the Supreme Court should overrule Smith.

Two Catholic parish preschools in the Denver area and the Archdiocese of Denver challenge Colorado’s Universal Preschool Program, which offers free, publicly funded preschool to four-year-old Coloradans through a “mixed-delivery” system that includes both public and private providers, including religious ones. The catch: to participate and receive public funding, all providers must ensure that children have an equal opportunity to enroll and receive services regardless of their or their parents’ sexual orientation, gender identity, religious affiliation, race, ethnicity, disability, lack of housing, or income level. The Catholic preschools sought an exemption to allow them to turn away children of LGBT parents or children who do not conform to the Church’s teachings on gender, on the grounds that admitting such children would require them to violate their religious convictions. When Colorado’s Department of Early Childhood denied that request, they sued. The district court ruled for Colorado, finding the state’s conditions to be neutral and generally applicable under Smith. The U.S. Court of Appeals for the 10th Circuit affirmed.

Petitioners press three questions. First, they contend that the 10th Circuit’s decision deepens a 7-4 circuit split over what kinds of secular exemptions render a law “not generally applicable” under Smith – specifically, whether courts must evaluate all secular exemptions and discretionary carve-outs, or whether only “unfettered” discretion and exemptions for “identical” secular conduct count. Second, petitioners argue the 10th Circuit has joined a growing number of courts in misreading the 2022 case of Carson v. Makin as prohibiting only explicitly religious exclusions, even though Carson holds that conditioning a public benefit on willingness to abandon religious exercise triggers the highest form of scrutiny regardless of whether the exclusion is expressed in religious terms. Third – and most ambitiously – petitioners urge the court to overrule Smith entirely.

Colorado’s brief in opposition insists there is no circuit split to resolve here because the 10th Circuit held as a threshold matter of state statutory interpretation that Colorado’s equal-opportunity requirements allow no exceptions whatsoever: the provisions petitioners point to as “secular exemptions” (for children with disabilities and children from low-income families) represent instead targeted protection for those groups, not carve-outs from the nondiscrimination mandate. As for Carson, Colorado maintains that the program does not exclude religious providers at all; it welcomes them, and conditions participation only on compliance with the same neutral, generally applicable requirement imposed on every provider. And Colorado asserts that “nothing has changed” that would warrant overruling Smith.

This case has a huge amount of amicus support: twenty-one amicus briefs, including an amicus brief filed by West Virginia and 21 other states and the U.S. Conference of Catholic Bishops. But most remarkably, the United States took the unusual step of filing a cert-stage amicus brief without being asked to. The solicitor general’s office has a reputation for splitting the difference in its amicus briefs, and there is some evidence of that here. The government ends its brief by saying that “resolving the question presented as to general applicability could obviate any need to resolve at this juncture whether Smith itself retains vitality, as petitioners urge in their third question presented.”

Over the years, several justices have expressed misgivings with the application and validity of Smith. This strikes me as a strong candidate for cert, but there’s no telling how much the court will decide even if it takes the case.

New Relists

St. Mary Catholic Parish v. Roy, 25-581

Issue: (1) Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct; (2) whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions; and (3) whether Employment Division v. Smith should be overruled.

(Relisted after the April 2 conference.)

Returning Relists

Smith v. Scott, 24-1099

Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)

Foote v. Ludlow School Committee, 25-77

Issue: Whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, the school encourages a student to transition to a new “gender” or participates in that process.

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

Fields v. Plappert, 23-6912

Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)’s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.

(Relisted after the Dec. 5, Dec. 12; being held for consideration in response to Fields’ rehearing petition.)

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, and Apr. 2 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, and Apr. 2 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, and Apr. 2 conferences.)

Poore v. United States, 25-227

Issue: Whether the limits on agency deference announced in Kisor v. Wilkie and Loper Bright Enterprises v. Raimondo constrain the deference courts may accord the U.S. Sentencing Commission’s interpretation of its own rules via commentary.

(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)

District of Columbia v. R.W., 25-248

Issue: (1) Whether a court assessing the existence of reasonable suspicion under the Fourth Amendment may exclude a fact known to the officer, or instead must assess all the evidence when weighing the totality of the circumstances; and (2) whether, under the totality-of-the-circumstances test, the officer in this case had reasonable suspicion to conduct an investigative stop.

(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 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, and Apr. 2 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, and Apr. 2 conferences.)

Beaird v. United States, 25-5343

Issues: (1) Whether 18 U.S.C. § 922(g)(1) comports with the Second Amendment; (2) whether Stinson v. United States still accurately states the level of deference due to the Commentary of the Federal Sentencing Guidelines; and (3) whether § 922(g) permits conviction for the possession of any firearm that has ever crossed state lines at any time in the indefinite past, and, if so, whether it is facially unconstitutional.

(Relisted after the Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 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, and Apr. 2 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, and Apr. 2 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, and Apr. 2 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 court precedent, 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 the 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 the 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, and Apr. 2 conferences.)

Castro v. Guevara, 25-666

Issue: Whether a trial court’s determination that a child is “well settled” with regard to the Hague Convention is subject to de novo review, or whether it is reviewed for clear error.

(Relisted after the Mar. 20, Mar. 27 and Apr. 2 conferences.)

Saldano v. Texas, 25-5749

Issue: (1) Whether the Texas Court of Criminal Appeals’ creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner’s Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.

(Relisted after the Mar. 20 conference; now apparently held.)

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In this case, Ongkaruck Sripetch pleaded guilty to selling unregistered securities, activity for which he was sentenced to 21 months’ imprisonment. In a separate civil enforcement action, the SEC sought to force him to disgorge more than $6 million in profits from those transactions. Crucially, in affirming that award, the court of appeals declined to consider whether the SEC could prove that Sripetch’s activity caused “pecuniary harm” to his customers – something other courts of appeals have required when imposing such a remedy.

Before the justices, Sripetch argues that this case is just like the three similar cases the court has decided in the last 10 years reining in the SEC’s broad use of equitable remedies like disgorgement. The most recent one (2020’s Liu v SEC) rejected the SEC’s use of disgorgement because it extended beyond the profits that Liu earned from the illegal activity in that case. Here, Sripetch argues, Liu compels reversal – pointing to repeated statements in Liu that the point of disgorgement is to pay “fair compensation to the person wronged” – something that necessarily requires a victim that has suffered pecuniary harm.

For the government’s part, it points out that the relevant statutory term – “disgorgement” – has a long history as a type of restitution that forces the wrongdoer to turn over its “ill-gotten gains.” So long as the SEC proves, as it did here, that Sripetch profited from his illegal activities, and limits the recovery to the profits from that activity, the SEC argues, the remedy falls comfortably within the traditional conception of disgorgement.

An amicus brief from several “remedies and restitution scholars” may aid the government’s case, especially given this includes law professor Douglas Laycock, who is pretty clearly the country’s leading remedies scholar and has been an influential amicus in the past. That brief lays out a straightforward case that disgorgement, as traditionally understood, focuses entirely on the profit of the wrongdoer as opposed to the harm of the victim. So I think the justices motivated by the remedy’s purpose in that regard will be sympathetic to the government.

That said, several of the justices (perhaps most notably Clarence Thomas and Neil Gorsuch) have been deeply skeptical of casual enforcement of equitable remedies in a variety of contexts, and they may be predisposed to a suspicion of the SEC’s continued routine use of disgorgement after the decision in Liu. I look forward very much to seeing where they (and everyone else) seem to land at the argument next week.  

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