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.

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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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The current dispute began in March 2023, when a Maryland woman, identified only as T.M., experienced a psychotic episode that she believes stemmed from accidentally consuming gluten. Seeing that she was aggravated and unwell, police escorted her to Baltimore Washington Medical Center.

Because T.M. was already in treatment for what her personal doctor and family had determined to be a rare gluten sensitivity causing changes in one’s mental state, T.M. and her father asked for her admission at the medical center to be voluntary, which would give her more control over her release. But “[h]ospital staff diagnosed [T.M.] with schizophrenia and concluded that involuntary admission would best ensure her safety.” Under Maryland law, individuals who are involuntarily committed are entitled to an administrative hearing. After a hearing on T.M.’s condition, an administrative law judge sided with the hospital, requiring her to remain admitted.  

Over the next month, as her involuntary hospital stay continued, T.M. challenged the hospital’s treatment of her in state and federal courts, “[s]eeking to avoid forcible injection” of antipsychotic medication “and secure her release from involuntary commitment.” Most relevant to the Supreme Court case is a petition that she filed in Maryland state court on May 5, 2023, alleging that her forced hospital stay was unlawful.

While her state petition was pending, T.M., her family, hospital staff, and attorneys worked toward a settlement agreement laying out the conditions under which T.M. could be released. In June 2023, the state judge assigned to the case entered the settlement agreement as a consent order. It “provided for T.M.’s immediate release from the medical center but required her to switch psychiatrists, continue taking medication prescribed by the hospital, and dismiss with prejudice her other lawsuits against the medical center and its employees.”

Although T.M. was released, a new legal battle was about to begin. Later in June 2023, she filed a federal lawsuit against the medical center, the University of Maryland Medical System, and leaders of those institutions over the consent order, asking for it to be declared unconstitutional and unenforceable. She also appealed the order within the state court system, to that state’s intermediate appellate court.

Just over a year later, in July 2024, the U.S. District Court for the District of Maryland dismissed T.M.’s federal lawsuit. It held that, under a legal principle known as the Rooker-Feldman doctrine, it could not review her request for relief from the consent order, which was a state-court judgment. As the district court noted, that doctrine, which gets its name from two past Supreme Court rulings on the relationship between state and federal courts, limits the power of lower federal courts. Specifically, it bars them from hearing cases brought by plaintiffs who lost in state court and who are complaining of “injuries” caused by the state-court judgment when that judgment “became final before the proceedings in federal court commenced” and when the plaintiffs are asking the federal court to undo that judgment.

The Supreme Court articulated those boundaries in a third case called Exxon Mobil Corp. v. Saudi Basic Industries Corp. In that 2005 case, the court emphasized that Congress had given the power “to exercise appellate authority ‘to reverse or modify’ a state-court judgment” only to the Supreme Court. The lower courts, Justice Ruth Bader Ginsburg wrote, had been applying the Rooker-Feldman doctrine too broadly by, for example, refusing to continue with a case once a state court had ruled on a related matter. While such state court rulings certainly can affect parallel federal litigation, Ginsburg acknowledged, “federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court.”

But, as the U.S. Court of Appeals for the 4th Circuit put it in T.M.’s case, “[t]o say that few claims warrant dismissal under the Rooker-Feldman doctrine is not to say that none do.” Rather, that doctrine still applies when a case was: “[1] brought by state-court losers [2] complaining of injuries caused by state-court judgments [3] rendered before the district court proceedings commenced and [4] inviting district court review and rejection of those judgments,” the 4th Circuit said, quoting Exxon. The 4th Circuit therefore affirmed the district court’s decision to dismiss, holding that T.M.’s case satisfied these conditions because (1) the consent order amounted to a loss in state court for T.M.; (2) in asking the federal courts to block the consent order, T.M. sought relief from that judgment; (3) the consent order was in place before the federal lawsuit was filed; and (4) the lawsuit was aimed at undoing the consent order.

T.M. came to the Supreme Court in August, asking the justices to decide whether the Rooker-Feldman doctrine applies when a state-court decision is not final, meaning it “remains subject to further review in state court.” She highlighted a disagreement between federal courts of appeals on that question, noting that, unlike the 4th Circuit, some would have held that her federal lawsuit could move forward because her state case is still in the Maryand intermediate appellate court. In December, the justices agreed to weigh in.

In her brief on the merits, T.M. emphasized that both the Rooker and Feldman cases involved a “final judgment of a state court of last resort.” And the federal statute that serves as the statutory basis of those decisions, she continued, refers to “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” “To the extent that any negative inference can be drawn from” the statute’s language, T.M. wrote, “it is only that a district court cannot exercise jurisdiction over a final judgment of the highest available state court,” not “non-final judgments” of any state court.

The hospital, medical system, and affiliated parties questioned the logic of that argument in their own merits brief. Why, they asked, would lower courts have the authority to “interfere[] with ongoing state-court proceedings” if the Supreme Court itself cannot do that? “If this Court must wait for the state appellate process to play out before reviewing state-court judgments, surely district courts cannot cut in line to review them first,” the brief said. Such line-cutting would undermine the authority of state courts, according to the brief, and lead to potential fights between state and federal courts for control of a particular case.

T.M. agreed that the Supreme Court does not have jurisdiction over state-court judgments that “remain[] subject to further review and may still be reversed, vacated, or modified in a state proceeding.” But the court shouldn’t assume that, in imposing this limit, Congress “intended implicitly to withhold related jurisdiction from district courts.” The relevant federal statute does not “provide any support for that approach,” she argued, and to hold otherwise would only deepen the confusion surrounding the Rooker-Feldman doctrine. Nevertheless, “[i]f the choice is between expanding the doctrine” to include non-final state-court judgments “or retiring it, the Court should take the latter course,” T.M. wrote.

The hospital, health system, and affiliated doctors countered that T.M. has it backwards, presenting their position as the less complicated of the two. T.M.’s “approach would require extensive litigation over whether state-court proceedings are sufficiently final, a question that already vexes courts on her side of the split.”

Expect those competing claims about the potential consequences of the court’s eventual ruling – and whether these are overblown or of serious concern – to play a major role in Monday’s argument. That ruling is expected by early July. 

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It’s always a wonder to me how some of the most important cases of the Supreme Court’s term receive the shortest amount of time to decide. But that is undoubtedly the impact of the court’s schedule – a schedule imposed by tradition not by law – of hearing arguments in huge cases in late April and then pushing out final opinions by the end of June, just a few weeks later.

The next two weeks will see – well, hear, because the court still does not allow video or even photos – oral arguments in two important immigration cases as well as one of the biggest Fourth Amendment cases in years. I’ll take a quick look at each below. I’ll then conclude with my thoughts (“out of my lane”) on the pending “election day” case that could disrupt settled expectations about mail-in voting for more than a third of the states this November.

Two huge immigration cases, adding to an already significant immigration term

I count immigration decisions as within the circle of “criminal law and related” cases because understanding immigration issues are often essential to criminal defense as well as prosecution. As the ABA Criminal Justice Standards direct (Standard 4-5.5), criminal lawyers should give “special attention to immigration status and consequences.” Immigration is a specialized and highly technical area of law and I profess no special expertise. I refer readers to my fellow SCOTUSblog columnist, César  Cuauhtémoc García Hernández, for more detailed analyses. This term has already seen argument in three significant immigration cases. October Term 2025 is undoubtedly going to be a “big one” for that topic. Below is my quick take on two additional immigration cases set for oral argument starting next week.

Blanche [the current acting attorney general] v. Lau (argument scheduled for Wednesday April 22). I admit that I find the briefing complex and a bit unclear, and that I am hardly expert enough to perfectly describe this case. But here goes:

“Lawful permanent residents” in the United States are just what the term implies: non-citizens who have been granted lawful status here, to stay permanently so long as they observe relevant domestic laws. Once granted that “green card” status, LPRs are permitted to travel in and out of the United States. And as the court’s own case description explains, “a lawful permanent resident (LPR) who is returning to the United States after a trip abroad is generally not ‘regarded as seeking an admission into the United States.’” They have already been “admitted” in a permanent way.

In this case, 69-year-old Muk Choi Lau has lived in the United States for almost 20 years as an LPR. In 2012, he took a short trip to his homeland and came back to New Jersey. Under the statute quoted above, Lau says he was not “seeking admission” when he returned. However, Lau had been charged with trademark counterfeiting (to which he later pled guilty and received a two-year probation sentence). On that basis, an immigration officer allowed Lau back into the country but said he was being “paroled” (a discretionary decision to let immigrants into the country) rather than being let back in without strings, because of the pending-but-not-yet-proved criminal charges. Later, after Lau pled guilty, the government sought his removal as “inadmissible” because he had been paroled in as opposed to pursuing the deportation procedures that would normally be applied to LPRs (and which I gather are more difficult for the government).

Lau contends that an LPR returning to the United States after a trip abroad is “not seeking admission” and the immigration officer therefore should not have paroled him into the country but admitted him as with any LPR. The government, on the other hand, contends that the pending criminal charges were enough to render Lau “inadmissible” when he returned. The LPR statute states that an LPR who “has committed” a criminal offense cannot claim the general “not seeking admission” rule, and both sides agree that a “clear and convincing” evidentiary standard applies to the parole determination.

Immigration proceedings went against Lau. But on appeal, the U.S. Court of Appeals for the Second Circuit ruled that because all the immigration officer at the airport knew when he marked Lau as paroled was that some criminal charges were pending, he should have applied the “not seeking admission” rule. In other words, the dispute here may boil down to two questions: (1) timing, and (2) whether criminal charges at the time of return are actually “clear and convincing” evidence. To put it another way, when Lau returned to the United States from his trip abroad, did the officer at the airport have enough evidence to not “admit” him? The solicitor general argues that the government met the statutory standard, both at the airport in 2012 and now, so Lau may be removed.  

My SCOTUSblog colleague  César contends that the government is arguing that it may “presume guilt” just from charges. But perhaps (the briefing is unclear) the government is arguing that its evidence of Lau’s trademark counterfeiting “as a whole” is enough, even if the officer at the airport did not know all of that evidence. Specifically, the government argues that requiring line immigration officers at busy airports to make “clear and convincing” evidentiary determinations rather than just “paroling” questionable persons back in to face pending charges “defies common sense and realit[ies].” The solicitor general’s reply brief thus asserts an aggressive, inferential view that Congress neither imposed nor intended an “at-the-border” evidentiary requirement. But I expect oral argument to reflect puzzlement at what, exactly, the government’s position is.

Mullin v. Doe (scheduled for argument on Wednesday April 29, the final scheduled argument day of the 2025-26 term). This case is more significant (potentially affecting over 1.3 million people), but I think easier to describe, than Lau. May the Trump administration end Temporary Protected Status that was previously granted to Syrian and Haitian immigrants under a statutory program begun by Congress in 1990? My SCOTUSblog colleague Kelsey Davis published an “explainer” about the case (actually two consolidated cases) last month.

The TPS statute permits the secretary of Homeland Security to designate countries to which it is unsafe for immigrants to return when their home countries are deemed (for various reasons) too dangerous. Seventeen countries have been so designated since 1990; President Donald Trump’s DHS secretary has announced that DHS intends to revoke that designation for nationals of 13 of those countries, finding that conditions there no longer meet the statutory requirements. (Interestingly, the Department of State still advises travelers against journeying to many of these countries due to their dangerous conditions.) The changes to TPS rules have been challenged by many lawsuits, arguing both procedural and substantive equal protection (race and ethnicity) problems. 

Two federal circuit courts have upheld stays of the administration’s designation changes in favor of challengers from Haiti and Syria in the cases to be argued on April 29. When the solicitor general sought a reversal of those actions by seeking an “emergency” stay on the court’s interim docket, the court instead treated the requests as petitions for review (certiorari) and set them for expedited argument. The solicitor general argues that the homeland secretary’s TPS decisions are statutorily unreviewable (that is, he says Congress has barred judicial review of such designations). The SG has also argued that last year’s stays granted by the Supreme Court in a Venezuela TPS case already (even dispositively?) shows “likelihood of success on the merits.” Presumably disagreements about that assertion among the nine justices led to switching the Haiti and Syria cases from stay applications to having full briefing and argument. I have to imagine, however, that a majority of the justices are inclined, at least at this pre-argument point, to support the Trump administration’s position.

The most important Fourth amendment case in almost a decade?

Chatrie v. United States (scheduled for argument on Monday, April 27). I wrote about this case last month, and I expect many others to be writing about it now. So I’ll be relatively brief here. How should the Fourth Amendment apply to “geofence” searches – government requests to large data holding companies for information that can lead to precise identifying data for specific people? (A geofence is a portmanteau used recently to describe digital (meaning electronic, physically invisible) borders on a computerized process.) 

At issue in this case was a court-approved request to Google, following a bank robbery, to run through its location data for millions of customers and narrow it down to location data for specific individuals on a specific date, time, and place. The place described in the warrant was a roughly 1,000 foot area that included a bank (and also a church). A three-step process ultimately identified Okello Chatrie and two other persons as being located in the area at the specified time. With a bit more information, Chatrie was arrested and convicted of bank robbery. At no time after the initial mass information search warrant was issued to Google was a magistrate further consulted.

Eight years ago, the court addressed searches of cellphone data for the first time. In Carpenter v. United States, Chief Justice John Roberts, quoting Justice Antonin Scalia, wrote that the Fourth Amendment written in 1790 must be applied so as to not leave the privacy of Americans today “at the mercy of advancing technology.” Canvassing cellphone location data is a “search,” and a judicial warrant is required, the court ruled. But it did not further discuss “how to apply” that ruling beyond that “narrow” holding.

Not only has technology advanced in the subsequent eight years, but the membership of the court has also changed. Only three members of the 5-4 Carpenter majority remain, and three of its dissenters (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch) are also around. That leaves the “new” justices (Justices Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson) as relatively unknown votes, even though some may want to make predictions based on what they perceive as their ideologies. In any case, the solicitor general now argues that cellphone users have no “reasonable expectation of privacy” in their location data, and that they “waive” it in any case by sharing it with cellphone companies. Chatrie’s reply brief has not yet been filed, but his primary brief argues that the government’s broad “fishing expedition” request to Google is akin to a “general warrant” that the Framers expressly condemned, and that it lacked “particularity” as to any individuals as the Fourth Amendment requires.

Given the many other new technological sources that, today, hold massive amounts of personal information given to them by users as necessary to live in today’s world, this case has implications far beyond our use of cellphones. Orin Kerr, a prominent Fourth Amendment scholar, has filed an amicus brief expressing some doubts about Chatrie’s arguments. Kerr is a former DOJ computer-fraud lawyer, and his amicus is filed in support of the government, with a number of expressed misgivings about the government’s position. I think Kerr is mistaken to argue that this “search” can be meaningfully distinguished from Carpenter, and I truly do not understand how a warrant that allows indiscriminate surveying of millions of customers files, even if anonymously, is “particularized” enough for the Fourth Amendment, at least not without further magistrate review when individual identification is then requested. But whatever one may think, it is not an overstatement to describe Chatrie as one of the most significant Fourth Amendment cases in decades. I hope you will, like me, listen to the April 27 arguments with both fascination and trepidation.

Out of my lane

At the oral argument in Watson v. RNC last month, a number of justices posed hypotheticals imagining potential problems with late-received mail-in ballots.  (The case asks the question whether an old federal statute (and later versions) that set “election day” as the first Tuesday in November, also means that ballots must be received, and not just cast, by that day.) The justices’ hypos weren’t, apparently, based on any real-life examples (Gorsuch went particularly far afield) – but as a law professor I guess I have to take the bad with the good.

What was surprising is that none of the initial questions focused on the constitutional text (Article I, Section 4, clause 1), which says that “the Times, Places and Manner of holding [federal] Elections …, shall be prescribed in each State.” Some 30 states currently allow mail-in balloting, and they have all decided to allow a short grace period for receipt of ballots to account for slow mail. Everyone agrees that ballots must be cast by election day; the question in Watson is whether federal statutes – first written in 1845 and again in 1872 and 1914 – require that “election day” means “receipt,” as well as casting, of ballots by that day. The words themselves say nothing, let alone something “plain,” either way.

The constitutional text in Article I does go on to say that, after states have set the time and manner of elections, Congress can change state practices if it sees problems, hypothetical or not. So the question here is whether Congress said anything to prohibit late mail-in ballot counting in its old statutes. Historically (and today’s legal fights always involve disputes about history), battlefield voting by proxy went on during the civil war; and voting by soldiers (and other Americans) overseas has long been allowed. The 30 states that allow mail-in voting all give some grace period for counting ballots so long as they are cast by the day of the election – and given the tens of millions of ballots that must be counted, this seems necessarily realistic. There seems to be no history that Congress had mail-in voting in mind at all in the 19th century, let alone that they intended to prohibit those grace periods. In light of the original constitutional text giving states primary authority, finding that a federal statute prohibits long-accepted state practices based purely on inferences strikes me as an unsatisfactory interpretive method for everyone.

One might think that if real problems were arising – say significant fraud or wild post-election result swings – the answer would be for Congress to exercise its constitutional power to specifically legislate about them. Certainly a “received by election day” law could be valid – although it would create its own problems, including folks having to vote a week early and miss late-breaking developments if they want to vote by mail. We all know that the postal system is in trouble, and that greeting cards to family don’t get delivered overnight. Sometimes it takes a week or more. But it is still a pretty amazing system! Late-receipt for last-minute ballots makes practical sense, as 30 states have determined. It seems wrong to me to rely on statutory silence from well over a century ago for the Supreme Court to do the job that the Constitution expressly left for Congress if state procedures aren’t working. 

The post Last arguments of the term: huge cases for the Fourth Amendment and immigration appeared first on SCOTUSblog.

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Justices to hear argument on right to jury trial in FCC proceedings

The Seventh Amendment guarantees a right to a jury trial in “suits at common law.” In 2024, the Supreme Court ruled in SEC v. Jarkesy that the Securities and Exchange Commission’s imposition of fines in its administrative proceedings as a penalty for securities fraud violated that guarantee. On Tuesday, the justices will consider whether that same reasoning applies to fines that the FCC imposes for violations of federal communications laws.

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