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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At the Court

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

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

Morning Reads

Trump Court Picks Now Cite Justice Jackson on 2020 Election

Olivia Alafriz, Bloomberg Law

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

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

Mike Scarcella, Reuters (paywalled)

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

White House must comply with Presidential Records Act, judge rules

Josh Gerstein, Politico (paywalled)

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

Liberty University student fights for religious studies tuition grant

Liz Lykins, World

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

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

Joan Biskupic, CNN (paywalled)

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

On Site

Relist Watch

Daubert dust-up and AEDPA angst

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

Contributor Corner

What oral argument reveals about Supreme Court unanimity and division

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

Contributor Corner

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

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

Podcasts

Amarica's Constitution

Scrip for Scripture on the National Mall

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

A Closer Look

Dershowitz v. CNN

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

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

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

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

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

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

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

SCOTUS Quote

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

— Justice William O. Douglas  (1957)

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

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

Daubert revisited

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

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

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

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

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

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

Summary reversal bait

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

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

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

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

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

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

New Relists

Walters v. Coleman, 25-867

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

(Relisted after the May 14 conference.)

Union Carbide Corp. v. Sommerville, 25-919

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

(Relisted after the May 14 conference.)

Returning Relists

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

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

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

Duncan v. Bonta, 25-198

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

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

Viramontes v. Cook County, 25-238

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

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

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

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

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

Grant v. Higgins, 25-566

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

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

Reinink v. Hart, 25-179

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

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

Whitton v. Dixon, 25-580

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

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

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

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

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

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

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

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

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

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

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

New York Football Giants v. Flores, 25-790

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

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

Alabama v. Sykes, 25-847

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

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

Alabama v. Powell, 25-848

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

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

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

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

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

Smith v. Kind, 25-943

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

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

McCarthy v. Hernandez, 25-748

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

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

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

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

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

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

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

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

Sitting at the top of the judicial branch in the United States, the Supreme Court’s role as the final arbiter of federal legal disputes is unquestioned. But how the court chooses which disputes to settle is cloudier. In a recent interview, Justice Neil Gorsuch claimed that the court weighs in when lower courts can’t agree. That statement echoes certain of the court’s rules, but it doesn’t explain why the court chose to hear high-profile immigration cases this term, including the dispute over birthright citizenship.

The Supreme Court is unusual in that it has almost complete control over which cases it considers. Unlike U.S district courts and circuit courts, which must decide the cases that are filed with them, the Supreme Court gets to pick which cases it hears out of the thousands of requests that it receives from lawyers, including the Justice Department. Every year, the justices hear arguments in approximately 75 cases through the part of its workload called the merits docket – the traditional process in which parties typically have several months to submit written briefs and present oral arguments, after which the justices take another few months to issue lengthy written opinions addressing the merits of the legal dispute. The justices also decide cases that reach it through a separate, fast-paced process, called the emergency docket (also known as the shadow docket or the interim docket).

Without doubt, one of the court’s principal functions is to resolve disagreements among lower courts. “Americans file about 50 million lawsuits a year, and you give us the 70 hardest ones, where lower court judges have disagreed about what the law means about a statute or a provision of the Constitution dictates in a particular case,” Gorsuch said in a televised interview earlier this month. Indeed, the short list of “compelling reasons” for the court to hear a case that appear in the court’s rules include two common types of disagreement. The court is more likely to add a case to its calendar when federal courts of appeals have issued conflicting decisions, referred to as a circuit split, or when decisions from the highest courts in two or more states interpret federal law differently.

A close look at the immigration cases that the court agreed to hear this term, which began last October, suggests that the court didn’t limit itself to resolving disagreements, however. The most high-profile immigration matter to appear on the court’s docket – the ongoing dispute over the legality of President Donald Trump’s executive order attempting to limit access to birthright citizenship – features remarkable agreement. Multiple courts deciding multiple lawsuits concluded that the president’s order is illegal. Whether a lawsuit was brought by private individuals, non-governmental organizations, or states, the parties challenging Trump’s birthright citizenship directive won at every stage of every lawsuit (except on the procedural question of whether district courts could issue nationwide bars of such executive actions). On April 1, the justices nevertheless heard argument on the issue in Trump v. Barbara.

The other well-publicized immigration policy matter that the court added to its merits docket this term concerns temporary protected status. That litigation’s trajectory also shows immense agreement among lower courts. Indeed, the dispute before the court – over the secretary of homeland security’s authority to terminate TPS for Syrians and Haitians, which was argued on April 29 – joined two cases, involving decisions from four courts, that came to the same conclusion. In Doe v. Noem, the U.S. District Court for the Southern District of New York explained that Kristi Noem, who served as secretary of homeland security when DHS announced that it would no longer provide TPS to Syrian citizens, violated federal law. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously denied the Trump administration’s request to stay the district court’s order while it appealed, noting, as the district court had, that the government was likely to lose. Similarly, in Miot v. Trump, the U.S. District Court for the District of Columbia found that Noem violated federal law by attempting to terminate TPS for citizens of Haiti. Two judges on the U.S. Court of Appeals for the District of Columbia agreed and denied the government’s request to stay the district court order pending appeal (although over a dissent).

Litigation over the legal rights of asylum-seekers blocked at the U.S. border, also currently awaiting a decision by the justices, likewise didn’t arrive before them after lower court disagreement. In Al Otro Lado v. Mayorkas, the U.S. District Court for the Southern District of California stopped the Biden administration from refusing to consider asylum applications from people physically blocked at the border by DHS officers. The U.S. Court of Appeals for the 9th Circuit affirmed that part of the district court’s decision. When the government asked the 9th Circuit to hear the case en banc, the court declined over dissents by 12 judges. No other courts issued opinions in similar lawsuits, meaning that it would be impossible for a circuit split to exist.

That there is no conflict among lower courts in the legal challenges to immigration policies that have reached the court’s merits docket this term suggests that something else is going on. Despite Gorsuch’s comment, the court doesn’t only resolve disagreements among lower courts. It also weighs in on important questions of federal law. As the court’s rules note, it is more inclined to weigh in when a state court or federal court of appeals “has decided an important question of federal law that has not been, but should be, settled” by the Supreme Court or has decided it “in a way that conflicts” with the court’s prior decisions. The court can choose what it defines as important and, until the justices issue opinions, only they know whether the circuit court decisions in the TPS and asylum-access cases conflict with prior Supreme Court decisions. But Barbara, the challenge to the president’s birthright citizenship directive, doesn’t involve a court of appeals or state court decision. So that leads to one conclusion: the court considers these cases of “imperative public importance.”

Of course, from outside the court, it’s impossible to know why the justices added these three cases to the court’s calendar. Furthermore, assessing a case’s importance when filling the limited slots on the court’s merits docket doesn’t necessarily reflect anything inappropriate. But unlike instances in which the lower courts disagree, the alternative pathways to Supreme Court review require deliberate choices by the justices. The court didn’t have to become involved in these disputes; the justices wanted to. By doing so, the court has guaranteed itself a starring role in some of the president’s most prominent policies and in the political storm that swirls around them.

At his confirmation hearing before the Senate Judiciary Committee, Chief Justice John Roberts famously compared judges to baseball umpires. As a judge, “it’s my job to call balls and strikes, and not to pitch or bat,” Roberts said. In choosing cases where the lower courts all agree (or where disagreement is impossible because only one court has considered the issue), however, the justices do more than act like neutral umpires. The justices also pick the teams.

Oral argument at the Supreme Court is often treated as theater – a ritual of pointed questions directed at nervous advocates that rarely changes a case’s outcome. But a careful look at how justices behave during argument offers something more: a window into whether a case is headed toward consensus or conflict, and often, who is writing what.

This article examines data from six recent Supreme Court cases – three decided unanimously and three decided by contested votes – and asks a straightforward question: Does the nature of oral argument appear to differ in ways that predict, or at least are consistent with, the eventual division of the court?

The answer is yes – and the differences can be striking.

The six cases

The cases span the October 2025 Term, the final argument of which took place on Wednesday, Apr.29. The three unanimous decisions studied (Barrett v. United States, Berk v. Choy, and Ellingburg v. United States) were each resolved 9-0. The three contested decisions (United States Postal Service v. Konan, Bowe v. United States, and Hencely v. Fluor Corp.) divided 5-4, 5-4, and 6-3, respectively.

The cases cover a range of doctrinal terrain: statutory interpretation in the mail-liability context (Konan), federal habeas corpus procedure (Bowe), military-contractor preemption and wartime tort liability (Hencely), criminal sentencing (Barrett), federal civil procedure (Berk), and the Mandatory Victims Restitution Act (Ellingburg). Their variety makes the behavioral patterns across the two groups especially revealing.

Volume: contested cases generate more argument

This one might seem obvious, but the most immediate difference between the two groups are the lengths of argument. The three contested cases averaged 93.7 transcript pages per argument, compared to 73 pages for the unanimous cases. Justices’ turns to ask questions followed the same pattern: an average of 200.3 turns in the contested cases versus 136.7 in the unanimous ones. Transitions between justices – moments when the bench turns to address a new voice – averaged 60.3 per contested argument and 36 per unanimous one.

In other words, the contested cases generated substantially more oral argument activity than the unanimous ones, even though both groups involved nine justices working through a comparable range of issues.

So what does this tell us? In contested cases, the justices are not merely eliciting clarification or confirming what they already believe (as is the common narrative about oral argument). Instead, they are, in a meaningful sense, working through disagreement with both the advocates and perhaps more importantly, one another, in real time – pressing advocates harder, returning to problems that resist easy resolution, and engaging each other’s implied positions from across the room.

Tone: the questions asked

The nature of judicial questioning also shifts between the two groups. Skeptical and challenging turns – questions that push back on an advocate’s position, expose tensions in the argument, or directly contest a premise – averaged 35.0 per contested argument, compared to 24.0 for unanimous cases. And probing the underlying logical foundations of a legal position averaged 26.3 in contested cases and 18.7 in unanimous ones.

These patterns are consistent across the six cases and suggest that skepticism at oral argument is very real – not merely a justice playing devil’s advocate or testing out certain ideas. When multiple justices are pressing an advocate hard on the foundations of their argument, it often reflects that the court itself is genuinely divided about those foundations. When the bench is more quiescent, more focused on breaking down a doctrine and seeking clarification of a legal point, it is usually because the justices have already found – or are converging on – common ground.

Justice-level behavior

The justice-by-justice data makes the relationship between oral argument behavior and eventual case outcomes even sharper.

The future majority author does not necessarily ask the most questions. Rather, the dissenters tend to ask more questions and (predictably) often express their skepticism at the party which turns out to have the winning hand. For example, in Konan, Justice Ketanji Brown Jackson, who joined the dissent, had the highest turn count of any justice.

And then there is the outlier: Justice Clarence Thomas. Unsurprisingly given his reputation, in every case in the sample, Thomas asked the fewest or near-fewest turns. His questioning style was overwhelmingly exploratory or doctrinal – which is consistent with a well-documented pattern of seeking clarification or information rather than pressing advocates with adversarial challenges. Despite his relative silence, however, Thomas was the majority author in both Konan and Hencely.

In contrast, the three unanimous cases share a recognizable pattern. The questioning is substantive – justices ask plenty of doctrinal and expository questions – but the level of sustained pressure on the advocates is much lower. Skeptical and challenging questions are fewer, contesting the advocates’ entire premise is reduced, and there is less of the justice-to-justice tension that characterizes divided cases.

In Ellingburg, for example, the questioning was largely oriented toward clarifying the doctrinal framework (what exactly makes a sanction “penal” for ex post facto purposes, and how does the MVRA fit within that framework?) rather than challenging the legal conclusions of either side. Several of the justices who would join the majority asked questions that functioned more as road-mapping exercises – helping the advocate organize their argument to help the court write its opinion.

In Berk, the clearest signal of eventual unanimity was the nature of Justice Amy Coney Barrett’s questions. As is common with Barrett, her queries were consistently oriented toward identifying the narrowest adequate ground for decision. This entailed asking which rule, exactly, was being violated; whether the holding needed to say anything about analogous state procedures; and what the limits of existing precedent were. Such questioning – which asks for the most defensible version of the disposition rather than challenging whether to reach any disposition at all – is a recognizable pattern in justices who are heading toward authorship of a unanimous opinion.

What this all tells us – and what it does not

The data from these six cases supports several tentative conclusions (while fully recognizing the limitations of such a small sample size).

First, the total volume of oral argument activity – measured in pages, justice turns, and transitions – was higher in contested cases. This is not simply a function of case complexity; it reflects the justices’ greater uncertainty and genuine division about the eventual outcome.

Second, the justices’ skepticism, especially towards one another’s positions, may be a strong indication of a divided opinion. High skepticism predicts contested outcomes; lower skepticism, combined with more doctrinal questioning, predicts consensus.

Third, individual justice behavior at oral argument tends to be consistent with their eventual opinion roles. Future majority authors often exhibit an organizing or synthesizing posture – fewer turns of questions overall or turns oriented toward clarifying and confirming the winning argument. Future dissenters tend to ask more and probe more insistently on the points that the majority’s eventual reasoning may not fully resolve.

Finally, genuinely fragmented cases – those with multiple separate opinions rather than a clean majority – look different at oral argument from more ordinary 5-4 or 6-3 splits. Of course, this is not an ironclad rule. There are cases where a justice asks many questions and joins the majority. There are cases where a quiet justice ends up writing separately. But as a lens for understanding what is happening inside a court that almost never explains itself in advance, the structure of oral argument behavior is a more reliable guide than the conventional wisdom – that argument is theater and questions are noise – typically concedes.

Conclusion

The six cases examined here suggest that oral argument is a more telling event than it is often treated as being. The amount of argument, the level of skepticism across different justices, and the nature of individual questions all carry information about what the court is doing and where it is headed. Contested cases are louder, more adversarial, and more focused on the foundations than unanimous ones. And the justices who will eventually write the most significant opinions often reveal their likely roles, not through dramatic moments, but through the quieter structural work of their questioning – confirming, narrowing, synthesizing, or resisting the advocates’ positions in ways that are visible, in retrospect, well before the opinions themselves come down.

And please join us today at noon EDT on LinkedIn Live for Amy’s discussion with Briefly’s Adam Stofsky about this term’s highest-profile cases. Register here.

At the Court

On Tuesday, the court denied a request for a stay of execution from Tony Carruthers, who was sentenced to death in Tennessee after being found guilty of three murders. Carruthers is scheduled to be executed on Thursday.

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

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

Morning Reads

Justice Jackson criticizes Supreme Court’s handling of major voting case

Justin Jouvenal, The Washington Post

During an appearance at a gathering of lawyers on Monday in Washington, D.C., “Justice Ketanji Brown Jackson criticized the high court ... saying its decision to expedite a ruling in a major voting rights case this month made it appear political,” according to The Washington Post. “Jackson said the court’s reputation rests on appearing neutral in political disputes but speeding up the release of its [Louisiana v. Callais] ruling made it appear as if it were favoring one side,” because the “shortened timeline paved the way for Republicans in Louisiana” to redistrict ahead of this year’s elections.

Justices Hint at Strains as Supreme Court Comes Under Scrutiny

Ann E. Marimow and Aishvarya Kavi, The New York Times (paywalled)

The New York Times highlighted Jackson’s Monday remarks in its story about how she and other justices who have offered public remarks in recent weeks appear to be “intensely aware of a public debate about their relationships with each other and the court’s own legitimacy.” While several justices, including Chief Justice John Roberts, have pushed back against criticism of the court during their appearances, emphasizing that justices are not political actors and that they know how “to get along despite substantive disagreements,” Jackson, the Times noted, “has been most willing to criticize the court, increasingly alone.”

NAACP calls for boycott of Southern college sports programs over voting rights

Matt Brown, Associated Press

The Supreme Court’s Callais ruling set off a redistricting push across the country. That push, in turn, has prompted the NAACP to “call[] on Black athletes and fans to boycott the athletic programs of public universities in states that are taking steps that the nation’s oldest civil rights group says are restricting Black voting rights,” according to the Associated Press. “The NAACP’s campaign calls out Alabama, Florida, Georgia, Louisiana, Mississippi, Texas and South Carolina as states to boycott, arguing that the athletic programs of those states’ major universities are especially reliant on Black athletic talent and should protect Black political interests.”

Packing the Supreme Court is no longer a fringe idea

Ian Millhiser, Vox (paywalled)

“Court-packing, or adding seats to a court in order to change its ideological or partisan makeup, was considered an exceedingly radical idea as recently as a decade ago,” according to Vox. But it is quickly amassing supporters – and not just Democrats. “In February, Utah Republicans packed their state supreme court after that court backed a challenge to the state’s GOP-friendly congressional maps.” Vox noted that, at the federal level, court-packing would be easier to pursue than other proposed reforms, because “Congress could add seats to the Supreme Court with ordinary legislation, while more moderate proposals, such as term limits for the justices, would almost certainly require a constitutional amendment.”

Ranking the Worst Supreme Court Decisions of All Time

Damon Root, Reason

After noticing that Monday marked 130 years since the court released its “notorious decision in Plessy v. Ferguson,” in which it “enshrined the notorious pro-Jim Crow doctrine of ‘separate but equal,’” Damon Root set out to compile a “list of the worst SCOTUS decisions ever made.” He proposed Dred Scott v. Sandford, “which said that black Americans ‘are not included, and were not intended to be included, under the word “citizens” in the Constitution,’” and Korematsu v. United States, “which upheld President Franklin D. Roosevelt’s wartime internment of innocent Japanese-American citizens,” and invited his readers to “weigh in with your own votes.”

On Site

Contributor Corner

A docket in the shadow of bigger problems

In his Major Questions column, Adam White reflected on comments Justice Ketanji Brown Jackson made recently about how the Supreme Court responds to emergency petitions arising from the executive branch’s orders and actions. Jackson called on the court to focus more on the relative harms than on the legal issues involved. White contended that such an approach “risks prioritizing the interests of those who go to court to block new government policies, not those countless non-litigants who stand to benefit from a given government policy.”

Contributor Corner

Rethinking a Supreme Court principle used to undermine the Voting Rights Act

In his Courtly Observations column, Erwin Chemerinsky revisited the Purcell principle – the principle that federal courts should not alter the conduct of elections soon before they are to occur. Conservative justices, according to Chemerinsky, have frequently invoked this principle over the past two decades, and yet they “paid no attention to it whatsoever” in Louisiana v. Callais, “a ruling that will dramatically change the conduct of elections that are ongoing.”

Podcasts

Advisory Opinions

Let’s Sue the Government

Sarah Isgur and David French discuss the IRS lawsuit brought by President Donald Trump, the Supreme Court’s mifepristone decision, and a unanimous ruling from the justices that no one except Sarah cares about.

Ask Amy

After the “A Closer Look” section of our May 8 newsletter indicated that Chief Justice John Roberts "argued 39 cases before the Supreme Court, winning 25 of them," we got this question: Is it typical that Justices argue cases before the Supreme Court before being appointed as a Justice?

In short, not necessarily. In addition to Roberts, three other current justices – Samuel Alito, Elena Kagan, and Brett Kavanaugh – argued cases at the court before joining it.

Alito argued 12 cases, winning 10. Perhaps most memorably, he stepped up to argue one with just two days’ notice after a death in the family of the lawyer who had been slated to argue.

While serving as the U.S. solicitor general during the Obama administration, Kagan argued six cases before she was elevated to the Supreme Court. Her first argument in any court was the landmark Citizens United v. Federal Election Commission, in which the justices struck down restrictions on independent campaign contributions by corporations.

Kavanaugh argued one case, in 1998: Swidler & Berlin v. United States, in which he (on behalf of Ken Starr and the Office of Independent Counsel in the Whitewater investigation) asked the court to hold that an attorney can be required to turn over notes he took during an interview with a client after the client's death. By a vote of 6-3, the court rejected that argument, ruling that the attorney can refuse to turn over those notes.

Some other justices in the past few decades have also argued before the court. Justice Ruth Bader Ginsburg argued six times, in cases involving gender discrimination law, between 1972 and 1978.

And Justice Thurgood Marshall argued before the court 32 times, winning 29 of those cases, including the 1954 landmark decision in Brown v. Board of Education, striking down the principle of “separate but equal” facilities in education.

But the justice with the most arguments before the court was Justice Robert Jackson, who argued there a whopping 44 times, winning 38 of those. Jackson was also the last justice who did not have a law degree. He did not go to college at all; after completing one year at Albany Law School, he served as an apprentice with a practicing lawyer before being admitted to the New York bar at the age of 21.

SCOTUS Quote

JUSTICE SCALIA: “What was that? What was that basic protective gear that everybody –”

JUSTICE GINSBURG: “Hard hats, ear plugs or ear muffs, and boots.”

MR. FREDERICK: “Thank you, Justice Ginsburg.”

CHIEF JUSTICE ROBERTS: “What was it?”

(Laughter.)

CHIEF JUSTICE ROBERTS: “Let's see if you remember what she said. What was it?”

(Laughter.)

MR. FREDERICK: “Hard hats, ear plugs, hair nets, beard nets, and basic smocks.”

CHIEF JUSTICE ROBERTS: “And – but the –”

JUSTICE GINSBURG: “And boots.”

MR. FREDERICK: “And boots. Sorry. I forgot boots.”

CHIEF JUSTICE ROBERTS: “You left boots out.”

— Tyson Foods, Inc. v. Bouaphakeo (2015)

Much rightly has been written criticizing the Supreme Court’s decision in Louisiana v. Callais, which effectively nullified Section 2 of the Voting Rights Act. But one point that has not received sufficient attention is the decision’s blatant inconsistency with the principle that federal courts should not alter the conduct of elections soon before they are to occur. Often called the Purcell principle, from its origin in the 2006 case of Purcell v. Gonzalez, this principle has frequently been invoked by conservative justices. But in Louisiana v. Callais, the conservative justices unleashed massive changes on the eve, and even in the midst, of elections, which will alter their results in many states and perhaps the composition of Congress.

Purcell and its application

Purcell was a Supreme Court per curiam order, handed down without briefing or oral argument. In Purcell, the federal court of appeals had found that an Arizona law requiring photo identification for voting violated the Constitution and stopped the law from going into effect. But the Supreme Court stayed the court of appeals decision and said, “Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.”

The constitutional basis for this never has been explained by the Supreme Court. Why should unconstitutional or illegal restrictions on voting be allowed just because the challenge is being heard soon before the election? It also never has been explained whether Purcell is a bright line rule that federal courts cannot get involved too soon before an election or whether it is a factor in a court’s analysis of whether injunctive relief is appropriate. Nor has the court been clear about what is “too soon” before an election – although some Supreme Court cases indicate that federal courts should not be involved even months before.

Nonetheless, the court has invoked Purcell v. Gonzalez many times as establishing that federal courts cannot enjoin state and local election laws soon before an election even when the judges conclude that the Constitution is being violated. In the 2020 case of Republican National Committee v. Democratic National Committee, a federal district court in Wisconsin issued an order five days before the scheduled election that absentee ballots mailed and postmarked after election day, April 7, still would be counted so long as they were received by April 13. The judge issued this order because of the dramatic increase in absentee ballots in April 2020 at the height of concern over the COVID-19 pandemic. The federal judge’s order made great sense; otherwise, many ballots would not be received in time to be counted through absolutely no fault of the voter.

The Supreme Court, though, overturned this order and, in a 5-4 per curiam ruling split along ideological lines, said that extending the date by which ballots may be cast by voters for an additional six days after the scheduled election day “fundamentally alters the nature of the election.” The court invoked Purcell for the proposition that it “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

The court significantly extended the Purcell principle in the 2022 case of Merrill v. Milligan. After the 2020 census, the Alabama legislature redrew its congressional districts. Although Black individuals constitute 27 percent of the population of Alabama, the legislature drew the districts so that Black voters were a majority in only one congressional district. Most Black voters were packed into that one district and the rest were spread among the remaining six districts.

The federal district court in Alabama heard seven days of testimony, read over 1,000 pages of briefing, and concluded that the map drawn by the Alabama legislature for congressional seats was discriminatory and likely violated the Voting Rights Act. Nevertheless, the Supreme Court, in a 5-4 ruling, with Chief Justice John Roberts joining the three liberal justices in dissent, stayed the lower court ruling and allowed the discriminatory Alabama map to be used in the 2022 elections. 

Strikingly, none of the nine justices, including those in the majority, disagreed with the lower court’s conclusion about the discriminatory effect of the Alabama legislature’s districting. (In fact, in June 2023, in Allen v. Milligan, the Supreme Court ultimately found that the lower court was right and that Alabama had violated the Voting Rights Act.) Nonetheless, the court allowed the discriminatory map to be used in Alabama for the 2022 primary and general elections.

None of the five conservative justices pointed to any error of law or fact by the three-judge district court. Nor did any of the justices claim that the lower court misapplied the law in finding a violation of the Voting Rights Act. As Roberts explained in his dissent in Merrill, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” 

Why, then, did the conservative justices stay the ruling by the district court? Although there was no opinion of the court (this was on its shadow docket), Justice Brett Kavanaugh, who was in the majority, wrote an opinion explaining the rationale behind the court’s order. He invoked the principle, once more, that federal courts should not mandate changes to state and local election practices soon before an election. Specifically: “The stay order follows this Court’s election-law precedents, which establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when, as here, lower federal courts contravene that principle. See, e.g., Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam).”

Yet another example of the conservative justices extending the Purcell principle to months before the election was the ruling in December 2025 in Abbott v. League of United Latin American Citizens. The Texas legislature, at the urging of President Donald Trump, redrew its congressional districts to attempt to try and create five more districts where Republican candidates are likely to prevail. Governor Greg Abbott signed this into law on August 29, 2025. A lawsuit was immediately filed and a three-judge federal court quickly held a nine-day hearing. On November 18, the court, in a 2-1 160-page decision, found that the new districts violated equal protection in their discrimination against Hispanic and Black voters and issued a preliminary injunction against their being used. The court ordered the state to use the map that the Texas Legislature adopted in 2021 for the 2026 midterm elections.

But the Supreme Court stayed this ruling, allowing the gerrymandered districts to be used. One again, one of the reasons given was the Purcell principle. The court said that the challenge to the new districts came too soon before the election – even though the election was months away. The court stated that it had “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” The court said that the three-judge court violated this “rule here … [by] improperly insert[ing] itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.” Justice Elena Kagan, in dissent, objected that “[i]f Purcell prevents such a ruling, it gives every State the opportunity to hold an unlawful election.”

Louisiana v. Callais and the Purcell principle

The Louisiana congressional primary was scheduled for Saturday, May 16, 2026, less than three weeks after the court decided Louisiana v. Callais on April 29. In other words, the court’s ruling was much closer to the primary election than was the case in Merrill v. Milligan or Abbott v. LULAC. Mail-in ballots in Louisiana already had been sent to overseas and early-voting residents. Nonetheless, the court’s decision in Louisiana v. Callais paid no attention to the Purcell principle and Justice Samuel Alito’s majority opinion did not even mention it. The day after the Supreme Court’s decision, on April 30, Louisiana Governor Jeff Landry suspended the congressional primary, allowing the primary for other offices to occur on May 16. Contrary to the Purcell principle, the Supreme Court thus dramatically changed congressional elections in Louisiana after they were already underway.

In theory, one could say that Purcell is a limit on the ability of a federal district court to alter the rules soon before an election but does not apply to the Supreme Court. But that distinction would make no sense. Purcell is about when the judiciary should disrupt impending elections. There is no reason why the principle should apply differently depending on which federal court is acting.

And the Supreme Court’s ruling has triggered changes in other states that are in the midst of their primaries. Florida, for example, passed a new map for congressional districts while its primary process was underway. Tennessee’s legislature passed a new map on May 7, even though candidates had to qualify to run in March. South Carolina has proposed moving its congressional primaries from June to August to allow it to redraw congressional districts to help elect an additional Republican to the House of Representatives.

It should be deeply troubling that the same justices who created and extended the Purcell principle paid no attention to it whatsoever in handing down a ruling that will dramatically change the conduct of elections that are ongoing. Perhaps this will cause them to reconsider the Purcell principle and allow federal courts to declare unconstitutional or illegal election practices even soon before an election. I always have questioned the Purcell principle and allowing elections to take place under unconstitutional or illegal circumstances. But it especially cannot be that the Purcell principle applies primarily to help one side and not the other.

Good fences make good neighbors. But do bad neighbors make good analogies? Justice Ketanji Brown Jackson thinks so, but I’m less convinced.

Speaking at Yale Law School last month, Jackson sketched out her sense of how the Supreme Court should approach emergency petitions arising from the executive branch’s orders and actions. When a district court freezes the administration’s latest policy, and the administration files an emergency-docket petition to undo the lower court’s action, what should the Supreme Court do?

Traditionally, the court balances several factors, which Justice Brett Kavanaugh summarized succinctly last fall:

To obtain a stay from this Court, the moving party must demonstrate a fair prospect that, if the District Court’s decision were affirmed on appeal, this Court would grant certiorari and reverse. The moving party also must show a likelihood that it would suffer irreparable harm if a stay were not granted. Those two factors are the “most critical.” Particularly in “close cases,” the Court also considers the balance of harms and equities to the parties, including the public interest.

But at Yale, Jackson expressed significant disagreements with this approach.

“Today, the court routinely opts to enter the fray,” she contended, “and it fails to acknowledge the harms that follow when the Supreme Court of the United States consistently and casually” reverses the lower courts.

She then gave her colleagues on the court a blunt recommendation: In reviewing emergency-docket stay applications at the early stage of a case, they should focus more on the facts – on the balance of equities (that is, the harms) at stake on either side – than on the law. “I propose that the equities be evaluated first,” she said, “and that the merits enter only as a plausibility check after the relative harms have been assessed,” she explained.

And this is where her “bad neighbors” analogy comes in.

To illustrate the court’s emergency docket and the cases that petition for emergency intervention, she offered a parable. “Imagine two next-door neighbors, both of whom claim ownership of a backyard shed that appears to straddle the line between their two properties.” Neighbor A wants to knock down the shed and plant a garden, in the hopes of hosting a home-grown dinner party in a few months. Neighbor B wants to keep the shed, and he sues to protect it. Soon the trial judge grants Neighbor B a preliminary injunction to preserve the shed while the underlying property-line fight can be fully adjudicated.

In terms of avoiding irreparable harms, the preliminary injunction makes sense: if Neighbor A can destroy the shed while the case is still being litigated, then Neighbor B effectively loses the case (and the shed) before it can actually be litigated. On the other hand, if Neighbor A must wait a while to plant his garden, it may be costly but it’s hardly irreparable harm, relatively speaking.

So, if the trial court issues the preliminary injunction and the appellate court lets it stand, what should the Supreme Court do when Neighbor A comes asking the justices to stay (that is, lift) the injunction? “We would set aside the merits question of who owns the shed,” Jackson said, “and start by evaluating who has the better argument about the intervening harms if the shed is torn down or left standing.” At this early stage in the litigation, when the courts are simply trying to decide what temporary rules will govern the parties while the litigation plays out, the Supreme Court should focus foremost on the potential harms to the challengers and the government, and turn to the underlying legal question only if the litigant who secured the preliminary injunction has virtually no chance of eventually winning the legal issue at the crux of the case.

By that logic, Jackson argues, the Supreme Court’s recent emergency docket decisions get the whole thing backward: too much prejudgment of the legal issues, too little focus on the facts – and far too little deference to the factual judgments of the district judges. For Jackson, who long served as a district judge, that last part is key: by her eye, trial judges are well situated for “assessing the credibility of witnesses and weighing disparate assertions, things that appellate courts” – including the Supreme Court – “really are not well equipped to do.”

And Jackson argues, this creates much more fundamental problems. When the court’s emergency docket decisions focus too much on the merits, it incentives litigants to use that docket as a fast-pass for quick adjudication of contested legal questions, which risks distorting the litigation process, disempowering trial judges, and undermining public confidence in the Supreme Court’s own impartiality.

Having reflected on her arguments for a few weeks, I don’t think Jackson did justice to the full problem that the court is facing.

There is no doubt, as Jackson recognized, that the modern emergency docket raises real questions about the judicial process. At the end of my time on President Joe Biden’s Supreme Court Commission, it was clear to me that the court’s vast discretionary powers – not just in granting interim relief, but also in granting full-merits review – would benefit from reform. The court works best when it applies clear rules written by Congress.

But Jackson’s argument focuses on a very, very narrow slice of the situation, and leaves almost everything as given. In that respect, the neighbor-shed analogy is particularly inapt for the very kind of real-world cases that Jackson explicitly focuses on: high-profile, high-stakes policy litigation between strategic litigators and presidential administrations.

These cases don’t begin with two neighbors debating a property line. They begin with a Democratic or Republican administration announcing a major new policy – as Jackson rightly put it, “a dramatic change to an existing government policy or program.” This policy could have direct, concrete effects on many people, often for the worse; but it could simultaneously have broad, diffuse effects on many other people, often for the better.

What comes next, then, is now a familiar feature of modern government: lawsuits are filed, and not randomly. Rather, strategic litigants file lawsuits whenever possible in the district court that seems likely to rule in their favor. During Democratic administrations, we see a lot of lawsuits in a few red states. During Republican administrations, by contrast, we see a lot of lawsuits in a few blue states.

To this, Jackson worries that the Supreme Court’s emergency-stay decisions create the wrong incentives among “savvy parties” seeking multiple “bites at the apple.” But the same could be said (and often is said) about the incentives and appearances of a system where district courts, handpicked by the plaintiffs, can choose to immediately freeze a federal program for months or years. Yet Jackson’s analysis ignores all of that.

At the same time, a presidential administration has enormous power to suddenly announce a new program and, if left unchecked, implement that program even while its very legality is being challenged in the courts. (I wrote about this last year for The Dispatch, as the justices considered Trump v. CASA.) The last several presidential administrations became much more creative and aggressive in trying to implement policies faster than courts could adjudicate them, and the court’s emergency docket must have a capacity for limiting this kind of administration-by-brute-force.

Lastly, and relatedly, is the very question that Jackson emphasizes: weighing the harms that could occur while the litigation is pending. Unlike the property-line dispute, where most of the costs and benefits are borne by the two parties to the case, litigation challenging a major new administration program involve not just the specific harms borne by the challengers, but much more widespread, preexisting societal harms that the new policy is ostensibly created to remedy.

It is easy for any of us to consider specific new harms alleged by a specific plaintiff; it is much harder for any of us to consider general preexisting harms spread broadly across large parts of society. Jackson suggests that trial judges are much better situated than appellate justices or Supreme Court justices to do so, given they are closer to the facts and can weigh “the credibility of witnesses and weighing disparate assertions.”

Surely those skills are useful for adjudicating a property-line case. But they’re much less useful for adjudicating a preliminary injunction motion against a nationwide program on immigration, for example. Trying to balance, say, the harms faced by an individual family facing deportation, against the sum of all harms faced by border-town communities bearing the weight of the last two decades’ immigration-policy chaos, would challenge the most Solomonic judges among us. The court’s emergency docket cases involve the balancing of harms and equities that are often incommensurable, even unfathomable.

As someone who personally opposes President Donald Trump’s anti-immigrant tactics, it’s easy for me to empathize with targets of his raids. But it would be silly for me to simply assume that there are no significant harms on the other side of the balance – much less that the Trump administration’s claims of social harm, in cases like Noem v. Doe, where the court lifted a lower-court stay of a major Trump Administration immigration policy revoking the categorical grant of parole to over half a million non-citizens from Cuba, Haiti, Nicaragua, and Venezuela, can simply be shrugged off as “next to nothing,” as Jackson does in her Noem dissent.

What this means in practice, then, is that Jackson’s suggested approach to emergency-docket petitions risks prioritizing the interests of those who go to court to block new government policies, not those countless non-litigants who stand to benefit from a given government policy. That may be a sensible balance to strike, but it’s also ironic, because at Yale Jackson worried repeatedly about the risk of letting “certain privileged litigants” leverage the judicial process to their own ends.

Finally, Jackson’s facts-first, laws-later approach seems an odd fit for the Supreme Court. Again, trial courts are built to adjudicate facts and equities. But the Supreme Court was created, first and foremost, for the sake of national uniformity in federal law. If there is one court that should put relatively more weight on legal questions than factual ones, even at the emergency-stay stage of a case, it’s the Supreme Court.

Too much of this was left out of Jackson’s Yale remarks. But such considerations were front-and-center in Justice Samuel Alito’s 2021 remarks at Notre Dame, and Justice Brett Kavanaugh’s 2025 concurrence in Trump v. CASA.

There, Kavanaugh put it well: “this Court should not insert itself into run-of-the-mill preliminary-injunction cases” – say, a property-line dispute with a garden shed at stake – “where we are not likely to grant certiorari down the road,” he wrote. “But determining the nationally uniform interim legal status for several years of, say, the Clean Power Plan or Title IX regulations or mifepristone rules is a role that the American people appropriately expect this Court—and not only the courts of appeals or district courts—to fulfill.”

And if you haven’t done so already, please register for Amy’s LinkedIn Live event with Briefly’s Adam Stofsky about this term’s highest-profile cases. It will take place tomorrow at noon EDT.

At the Court

The Supreme Court on Monday added a case on whether school employees can bring sex discrimination lawsuits under Title IX to its 2026-27 oral argument docket and sent two cases involving Section 2 of the Voting Rights Act back to the lower courts for another look in light of Louisiana v. Callais. For more on Monday’s order list, see the Morning Reads and On Site sections below.

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

Morning Reads

Supreme Court won’t weigh teacher’s firing for posts after George Floyd death

Ella Lee, The Hill

The court on Monday denied a petition for review from Jeanne Hedgepeth, who was fired from her teaching job at Palatine High School in Illinois after “she shared incendiary posts about protests following [George] Floyd’s death in Minneapolis,” according to The Hill. “Hedgepeth’s school district deemed the posts ‘disrespectful, demeaning of other viewpoints and racist,’ which the former teacher alleges amounted to infringement of protected speech.” Hedgepeth had asked the justices to review the U.S. Court of Appeals for the 7th Circuit’s ruling in which it held that the school’s interest in avoiding disruption outweighed Hedgepeth’s right to free speech.

Can social media companies be sued for sexual videos? Supreme Court weighs in

Maureen Groppe, USA Today

On Monday, the court “passed up a chance to review liability protections for social media sites, declining to take a case about whether X Corp. can be sued over the distribution of sexually explicit videos of minors,” according to USA Today. The case centers on the scope of Section 230, which “has been widely interpreted as shielding websites from lawsuits for user-generated content,” and which critics say is applied too broadly by lower courts. In the petition for review that was denied on Monday, two plaintiffs asked the Supreme Court to allow them to sue X “for distributing child pornography or for benefiting from sex trafficking” over the company’s initial refusal to remove “sexually graphic videos of themselves” from the site even after being notified about the videos’ content.

Abortion Pill Lawsuit Leaves Trump Silent, and in a Political Bind

Pam Belluck and Sheryl Gay Stolberg, The New York Times (paywalled)

Last week, the Supreme Court addressed Louisiana’s challenge to “a policy allowing abortion providers to prescribe mifepristone through telemedicine and send it by mail” and “restored telemedicine and mail access indefinitely while litigation continues in the lower courts.” And it issued its order without a brief from the Justice Department, “whose job it is to defend the F.D.A. in the case.” The New York Times highlighted the DOJ’s “highly unusual” decision not to file such a brief in its story about the “tricky political calculus” President Donald Trump must navigate in the abortion pill dispute. “Mr. Trump can stay quiet about the case and incur the wrath of anti-abortion leaders who view his silence as a betrayal and might stay home from the polls in November. Or he can voice his support for restricting access, which would inevitably fire up Democrats and independents to vote in greater numbers. For the moment, at least, he has chosen to remain quiet.”

Justice Clarence Thomas laments ‘very dicey’ threats to judiciary and heightened security for Supreme Court

John Fritze, CNN (paywalled)

During his Thursday remarks to the 11th Circuit Judicial Conference, Justice Clarence Thomas “repeatedly returned” to the fact that, amid a rise in security concerns, “it is now far more difficult for him to take part in activities outside the courthouse” than it was when he first became a judge and then justice, according to CNN. “That’s really one of the big changes since I’ve been on the court – that it’s become very, very dicey,” Thomas said. He returned to the topic of heightened security when he briefly discussed his support of University of Nebraska sports and his desire to be at more games. “And as I said, because of the security concerns, I’m not able to move around as much as I used to,” Thomas noted. CNN noted that the court has recently “sought millions of dollars in additional security funding from Congress.”

Justices Testifying Before Congress

Steve Vladeck, One First

In the near future, the Senate Appropriations Committee is expected to hear directly from at least two justices about the court’s $228.4 million appropriations request for the next fiscal year. In a post for his Substack, Steve Vladeck explored the history and significance of justice participation in congressional hearings, including why he believes that “more frequent appearances would be a relatively low-cost means of restoring some of the interbranch dialogue that used to be common.” “Budget hearings ... are an opportunity for justices to explain how the judiciary spends public money, to make the case for resources the courts genuinely need (security, technology, judgeships), to react to some of the myriad threats federal judges from across Article III are currently facing, and to engage with members of Congress on matters of judicial administration where the branches have overlapping responsibilities,” Vladeck wrote.

On Site

From the SCOTUSblog Team

Court agrees to hear case on ability of employees to bring certain suits for sex discrimination, turns down child pornography reporting suit against X

The court on Monday added one new case to its docket for the 2026-27 term, on whether employees can bring lawsuits for sex discrimination under a federal law that applies to schools that receive federal funding. Over a brief dissent by Justice Ketanji Brown Jackson, the court also sent a pair of cases involving Section 2 of the Voting Rights Act back to the lower courts for another look. Additionally, it turned down a group of cases challenging a government program that requires the Health and Human Services Secretary to negotiate Medicare drug prices.

Contributor Corner

Strange judicial bedfellows

In her In Dissent column, Anastasia Boden revisited Griswold v. Connecticut, in which the court invalidated Connecticut’s restrictions on contraception use. “Conservative” Justice John Marshall Harlan II was in the majority and “progressive” Justice Hugo Black was in dissent, which illustrates, according to Boden, how “unwieldy” these labels can be at the Supreme Court.

A Closer Look

Opinion Season

Summer is quickly approaching, but we here at SCOTUSblog are focused on a different season: opinion season, the time of year when court watchers’ attention shifts from argument days (which, barring unforeseen events, ended on April 29) to opinion days.

The court is expected to release 33 more opinions in argued cases over roughly the next six weeks and to close out the current term by late June or early July. We’re expecting at least one ruling to be released on Thursday, but the court has not yet announced opinion days for next week or the month of June.

Still, we’re not entirely in the dark about what the next six weeks will hold. In each of the past three terms, the court has followed essentially the same pattern during opinion season: weekly opinion announcements on Thursdays – which serve as conference days for the justices this time of year – from mid-May until mid-June, at which point the justices began holding two or even three opinion days per week to get all of the remaining decisions out the door.

If the court continues that pattern this term (as it seems to be doing), opinions will be announced on Thursday, May 21; Thursday, May 28; Thursday, June 4; Thursday, June 11; Thursday, June 18; and Thursday, June 25. Beyond those Thursdays, the prediction game gets tougher. We know that the justices will not release opinions on Friday, June 19, which is the Juneteenth holiday, but the next Friday – June 26 – is a good candidate, because the court scheduled several Friday opinion days in late June over the past three terms. Indeed, Friday, June 27, 2025, was the final opinion day last term.

But even if these guesses turn out to be accurate, plenty of mysteries remain. Most notably, we will not know in advance how many rulings or which rulings are coming on each opinion day, except for the final one. On what will turn out to be the next-to-last opinion day, the chief justice will indicate that when it next takes the bench the court “will announce all remaining opinions ready during this term of the Court.” The court often releases the highest-profile cases on the final day (since these often take longer to write based on the number of concurrences and dissents they generate, particularly if they were argued later in the term), which may mean that we won’t get the birthright citizenship ruling until then.

If you have lingering questions about opinion season, please feel free to send them to scotusblog@thedispatch.com. We will do our best to answer them in this newsletter, whether in a future Closer Look or the Ask Amy section. And please plan on joining our opinion announcement live blogs, which will begin at 9:30 a.m. EDT on opinion days.

SCOTUS Quote

“I think maybe the best way to be a good writer is to continually surround yourself with good writing and to see what good writers do. I try to avoid bad writing, although that’s not altogether my choice, because I have to read all these briefs, and, for the most part, I think that the Supreme Court is gifted with, it has a wonderful bar that argues a lot of our cases. And for the most part, I think they do a superb job. ... But every once in a while, you pick up one, and you think, every moment I spend with this brief, I become a worse writer.”

— Justice Elena Kagan  (2019)

Over a brief dissent by Justice Ketanji Brown Jackson, the court also sent a pair of cases involving Section 2 of the Voting Rights Act back to the lower courts for another look. And it turned down a group of cases challenging a government program that requires the Health and Human Services Secretary to negotiate Medicare drug prices.

***

In a list of orders released on Monday from the justices’ May 14 conference, the court granted review in Crowther v. Board of Regents of the University System of Georgia. The case began as a pair of lawsuits filed by an art professor and a women’s basketball coach at two public universities in Georgia, both alleging that they had been the victim of sex discrimination.

The U.S. Court of Appeals for the 11th Circuit threw out their claims. In an opinion by Chief Judge William Pryor, that court concluded that employees cannot bring lawsuits under Title IX of the Education Amendments of 1972, which bars sex discrimination by schools that receive federal funding. Pryor pointed to the text of the statute, which provides that “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” “[N]othing about that language,” Pryor wrote, “indicates congressional intent to provide a private right of action to employees of educational institutions.”

The employees appealed to the Supreme Court, which asked the Trump administration to weigh in. In a brief filed on April 9, U.S. Solicitor General D. John Sauer agreed that the court should take up the case. He sided with the university that the court of appeals’ decision was correct, but he contended that because the lower courts are divided on this question, the justices should nonetheless grant the employees’ petition for review.

***

The court sent two cases, Turtle Mountain Band of Chippewa Indians v. Howe and State Board of Election Commissioners v. Mississippi State Conference of the NAACP, back to the lower courts for them to reconsider their earlier rulings in light of the Supreme Court’s April 29 decision in Louisiana v. Callais, in which the justices – by a vote of 6-3 – substantially narrowed the reach of Section 2 of the Voting Rights Act, which bars racial discrimination in voting.

Jackson dissented from the court’s orders in both cases. She indicated that she would have left the lower court’s ruling in the Mississippi case in place, and reversed the decision in the Native Americans’ case, based on the Supreme Court’s 1996 decision in Morse v. Republican Party of Virginia. In that case, to support its conclusion that private plaintiffs could bring a claim under Section 10 of the VRA, which prohibits poll taxes and gives the attorney general the power to bring lawsuits to implement the ban, Justice John Paul Stevens wrote that “[a]lthough § 2 … provides no right to sue on its face, ‘the existence of the private right of action under Section 2 … has been clearly intended by Congress since 1965.’” In her dissents, Jackson wrote that the cases “present[] only the question of Section 2’s private enforceability, which our decision in Louisiana v. Callais … did not address.”

***

The court asked the Trump administration for its views on The GEO Group v. Nwauzor, a case brought by immigration detainees and the state of Washington, who argue that a private prison contractor violated the state’s minimum-wage law by paying detainees only $1 per day for their work at an ICE facility there. The U.S. Court of Appeals for the 9th Circuit allowed the lawsuit to go forward. The GEO Group then came to the Supreme Court, asking the justices to decide whether, under the Constitution’s supremacy clause, Washington can reclassify the detainees as employees who are subject to the minimum-wage law. There is no deadline for the solicitor general to file his brief.

***

The court also turned down cases filed by drug companies challenging the Drug Price Negotiation Program, a 2022 program that instructs the HHS secretary to negotiate prices with drug manufacturers. The companies argued (among other things) that the law violates the nondelegation doctrine, which generally bars Congress from outsourcing its legislative powers to other branches of government, and the Constitution’s guarantee of due process. The lower courts rejected those arguments; the drug companies then appealed to the Supreme Court, which denied their petitions without comment on Monday.

The Supreme Court denied review in several other high-profile cases, including a lawsuit seeking to hold X, formerly known as Twitter, responsible for its role in allowing child pornography to remain on its platform and a challenge to a California law that a religious preschool says requires it to promote other religions.

The justices will meet for another private conference on Thursday, May 21. Orders from that conference are expected on Tuesday, May 26, at 9:30 a.m. EDT.

On Oct. 9, 1954, Justice Robert Jackson died at the apartment of his secretary – forcing the Supreme Court to issue a statement papering over the circumstances. The official release suggested that the justice had somehow managed to drive into downtown Washington and do some shopping before becoming afflicted, leading him to drive to his secretary’s house for help. Many others have speculated, however, that it’s more likely the justice was already there when he suffered from a heart attack, and then died “in the arms of someone he loved.”

With that bit of scandal, Franklin Delano Roosevelt’s appointees lost their majority on the court for the first time since 1940. President Dwight D. Eisenhower would go on to replace Jackson with a familiar name: John Marshall Harlan II. Grandson of the “Great Dissenter” Justice John Marshall Harlan I, Harlan II proudly displayed a large photograph of his grandfather in his chambers. (As Harlan II liked to recount, upon seeing the portrait, a Japanese dignitary once remarked that he “didn’t realize that the post [of Supreme Court justice] was hereditary.”)

Harlan was well-liked in all political and ideological circles. Appropriately, Justice David Souter, who was nominated by a Republican president but wound up siding most often with judicial progressives, cited Harlan as an influence. And even Harlan’s chief ideological foe on the court, Justice Hugo Black, was also a close personal friend (and like Harlan, kept a portrait of the first Justice Harlan in his office). Black, maybe back-handedly, once said that Harlan “is one of the few people who convince me that there is such a thing as a good Republican.”

But Harlan’s many battles with Black show how unwieldly labels – particularly when they have political overtones – can be at the Supreme Court. And nowhere is this clearer than in Griswold v. Connecticut. Harlan, the “conservative,” argued that the due process clause of the Fourteenth Amendment embodies a tradition of liberty – and that courts have both the power and the responsibility to enforce that tradition. In doing so, he joined the majority in invalidating Connecticut’s restrictions on contraception. Black, the “progressive” of the two, responded that Harlan’s approach was judicial usurpation and that judges should only enforce constitutional protections that appear explicitly in the text. Whereas the “conservative” voted to strike the ban on contraception, the “progressive” would have upheld it.

I.  Two very different men

Hugo Black’s life was one of the most improbable in American legal history. He was born in 1886 in Clay County, Alabama far from the corridors of constitutional power. His father kept a general store and the family lived in relative poverty. He practiced law in a Birmingham firm and built a career in Alabama politics at a time when Alabama politics demanded accommodation of white supremacy.

Black had been a member of the Ku Klux Klan in the 1920s – a fact he later acknowledged and called a mistake. By the time Franklin Roosevelt appointed him to the Supreme Court in 1937, he was a committed New Dealer. He brought a populist sentiment to the bench and the conviction that law should mean something fixed and knowable rather than whatever those at the top decided it meant.

This required strict constitutional interpretation (a precursor to what would come to be known as “textualism”). When the Constitution said that “Congress shall make no law abridging speech,” for example, Black believed it really meant no law – not that courts should apply some balancing test to determine whether the law had gone too far. Conversely, he believed the First Amendment did not protect a man who wore a jacket that read “Fuck the draft” because the man was not engaged in speech, but rather in expressive action, which was not explicitly covered by the First Amendment’s text (Harlan wrote the majority opinion overturning the man’s conviction; Black joined the dissent). Black argued that the Fourteenth Amendment’s due process clause incorporated the entire Bill of Rights against the states and did not believe in “selective” incorporation. He believed that this strict interpretation limited judicial discretion – an approach that typically led him to what are regarded as progressive outcomes, but which is now commonly associated with judicial conservativism.

If Black was an improbable justice, John Marshall Harlan II was predictable. He was the grandson of the famous “Great Dissenter” who alone opposed the Plessy v. Ferguson majority in 1896. He grew up in comfort and was educated at Princeton, then at Oxford as a Rhodes Scholar, then studied law in New York. He practiced corporate law at a distinguished Wall Street firm, won a Legion of Merit for his service in World War II, served as chief counsel to the New York State Crime Commission, and was appointed by Eisenhower to the U.S. Court of Appeals for the 2nd Circuit in 1954 and then to the Supreme Court the following year.

Harlan was, in background and temperament, everything Black was not: patrician, cautious, institutionalist, deeply respectful of precedent and judicial craft, and a strong defender of unenumerated rights (that is, rights not explicitly expressed in the Constitution). He believed the common law tradition was a constitutional resource for judges. The due process clause’s protection of “liberty” was not a blank check, but it also wasn’t limited to the specific rights enumerated in the first 10 amendments. Harlan’s flexible approach meant that he would protect more liberties than Black would, but with less rigidity. Thus though commonly called a judicial conservative (likely because of his occasional sympathy to economic freedom and strong defense of federalism), he employed an approach closer to living constitutionalism.

Harlan and Black were frequently at odds. Whereas Black joined the majority in New York Times Co. v. United States, ruling that the Nixon Administration could not prevent the media from publishing the Pentagon Papers, Harlan joined the dissent, reasoning that the First Amendment had to give way to national security. Black also joined the majority in Mapp v. Ohio, where the court applied the Fourth Amendment’s exclusionary rule (barring the use of illegally obtained evidence) to the states, and Pointer v. Texas, where the court incorporated the Sixth Amendment’s confrontation clause. Harlan dissented in both. And whereas Black joined the majority in Miranda v. Arizona, which deemed a “Miranda warning” constitutionally required before a defendant’s self-incriminating statements can be admitted, Harlan wrote in dissent that “nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities.” Harlan valued flexibility. Black valued predictability.

II.  Peak disagreement

In 1879, Connecticut enacted a harsh anti-contraception law, making it a crime to use any drug, medicinal article, or instrument to prevent conception, or to assist anyone in obtaining it. It was part of the broader 19th-century moral reform movement that resulted in the federal Comstock Laws (technically still in effect), which banned mailing contraceptives or related information across state lines. Connecticut was the only state in the nation that criminalized not just the provision of contraceptives, but their very use.

Perhaps because it applied to couples behind closed doors, in practice, this law was almost never enforced – which made it rather difficult for people to challenge. In 1961, in Poe v. Ullman – an earlier challenge to Connecticut’s contraceptives law – the justices declined to reach the constitutional question because there was no record of enforcement and therefore, in the justices’ view, no genuine case or controversy.

But the law began to look increasingly archaic. Margaret Sanger had normalized contraceptive advocacy and the FDA had approved the birth control pill. This led some to try to resolve the standing problem and get Connecticut’s law off the books. Estelle Griswold was the executive director of the Planned Parenthood League in Connecticut and Dr. C. Lee Buxton was a physician and professor at Yale Medical School who served as the League’s medical director. In November 1961, they opened a birth control clinic in New Haven – publicly and with full awareness that they were creating a prosecutable case. They counseled married couples on contraception and prescribed it. Undercover officers reportedly visited the clinic posing as patients, and after just 10 days, Griswold and Buxton were arrested.

In court, the pair argued that the law arbitrarily deprived them of liberty. But once the case reached the Supreme Court, the justices wanted the parties to be more specific. At oral argument, the justices searched for some constitutional foothold in the text. Was there an equal protection problem, they asked, since the law allowed contraception for medical purposes but not for family planning? The attorney responded that he had not made any such claim.

Black was blunt about what he saw as the challengers’ true ask: “It seems to me what someone has done here deliberately is to try to force a decision on the broadest possible grounds of the meaning of due process … and to have us weigh the facts and circumstances as to the advisability of a law like this, rather than leave it up to the legislature.” When Black continued to probe which provision of the Constitution the attorney was relying on, he responded by pointing to several: “We rely on the Third, Fourth, and Fifth Amendments, insofar as they embody a concept of a right of privacy, Your Honor, which are incorporated in the Fourteenth Amendment.” Emerson later invoked the Ninth Amendment as well, and the First Amendment – which prompted Black to observe that this case didn’t involve simple speech; it involved a physical examination and a prescription.

But the government enjoyed equally tough questions. When Connecticut’s attorney went as far as to argue that the state “could prevent marriage in certain people, certain groups … between idiots, say, or age in marriage,” the justices asked whether there were any limits on what the state could do. Could Connecticut require that married people live in separate dormitories for men and for women except for two weeks out of the year? The attorney responded boldly, “I can only say that married couples do not have freedom to do what they want.”

III.  The decision

Justice William O. Douglas wrote for the majority. In his view, the right to privacy in marital relations was implicit in other enumerated rights, including the Fourth Amendment’s right against searches and seizures, the Fifth Amendment’s right against self-incrimination and its implicit privacy concerns, the Ninth Amendment’s general affirmation of unenumerated rights, and even the Third Amendment’s right not to quarter troops. In his view, the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

At bottom, Douglas appeared to rely on the idea that it was simply inconceivable that the Constitution didn’t protect this type of intimate relationship. “Would we allow the police,” he asked, “to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

Justice Arthur Goldberg concurred, rooting his decision in the Ninth Amendment. While his opinion was more firmly grounded in the text and history of that amendment, he too seemed moved by the stakes:

Surely the Government, absent a showing of a compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them. Yet, by [the dissent’s] reasoning, such an invasion of marital privacy would not be subject to constitutional challenge, because, while it might be ‘silly,’ no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family.

He concluded that, “While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view, it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts.”

Harlan agreed that Connecticut’s law was unconstitutional, but wrote separately to explain that he did not rest his decision on Douglas’ penumbra theory, nor on Goldberg’s Ninth Amendment analysis. The right to marital privacy, he argued, followed directly from the due process clause standing alone, which protects any values “implicit in the concept of ordered liberty.” In Harlan’s view, the majority’s theory and Black’s dissent shared the same flaw: they limited the scope of constitutional rights and judicial review by requiring some reference to an enumerated right. But the due process clause was far more sweeping than that.

Harlan was also skeptical that Black’s textualism actually constrained judges any more than his due process analysis. Citing the reapportionment decisions of the previous term, he argued that specific constitutional provisions were just as susceptible to “personal” interpretation as the open-ended liberty language Black distrusted. In particular, he argued that Reynolds v. Sims, which established the principle of “one person, one vote” and which was joined by Black, “was made in the face of irrefutable and still unanswered history to the contrary.” Harlan concluded that, as in any other area of constitutional law, “judicial restraint” is possible “only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.”

Hugo Black, for his part, began his dissent with a concession: Connecticut’s law, he said, was “every bit as offensive to me as it is to my Brethren of the majority” – but he thought the court had no constitutional anchor that could justify overturning it. The majority’s invocation of “privacy,” he argued, was entirely unmoored:

The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not. There are, [instead], guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.

He saw both the majority and the concurrences as “merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.” In his view, they were replacing the Constitution with their own views about what rights needed protecting, turning themselves into “members [of] a day-to-day constitutional convention.” If the Constitution needed to be updated, there was an amendment process for that. “That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.” He concluded, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

IV.  Afterword

History has, in complicated ways, vindicated both men. When the court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization in 2022, for example, the majority sounded, partly, in Black’s critique. Justice Samuel Alito’s majority opinion argued that the due process clause does not protect unenumerated rights unless they are deeply rooted in the nation’s history and tradition – a formulation that tracks Harlan’s method but gives it a more restrictive content, and that echoes Black’s worry about unconstrained judicial discretion.

So who was the conservative, and who was the progressive? Black – the former Klansman turned New Dealer, the strict textualist who voted with the civil libertarians – defies any clean category. So does Harlan – the patrician Wall Street lawyer who believed judges should reason from history and tradition to protect rights the Framers never wrote down. The lesson of Griswold may be less about privacy than about the nature of constitutional law – or at least constitutional law at its best – where there are no “sides” or partisan goals, but instead different judicial philosophies that can lead to more or less “progressive” or “conservative” results depending on the case.

Amy will take part in a LinkedIn Live event with Briefly’s Adam Stofsky on Wednesday at noon EDT about this term’s highest-profile cases. Register here.

And a correction from Friday’s newsletter: Justice David Souter’s former home is in Hopkinton, New Hampshire, not Hopkinton, Massachusetts. (Both towns exist and both are near Boston – but Souter was very much a New Hampshire guy!)

At the Court

Early Friday evening, the court denied a request from Virginia Democrats and the state’s attorney general to reinstate Virginia’s new congressional map. For more on the case, see the On Site section below.

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

The court has indicated that it may release opinions on Thursday, May 21, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.

Morning Reads

Virginia’s Spanberger fumes after Supreme Court declines to reinstate new map

Ryan Mancini, The Hill

Top Democrats in Virginia criticized the Supreme Court after the justices declined to pause a ruling preventing the state from using a new congressional map in the 2026 elections that would have aided Democrats. “The Supreme Court of the United States has now joined the Supreme Court of Virginia in choosing to nullify an election and the votes of more than three million Virginians,” wrote Virginia Gov. Abigail Spanberger on X. Similarly, Virginia Attorney General Jay Jones described Friday’s ruling as “yet another profoundly troubling example of the continued national attack on voting rights and the rule of law by Donald Trump, Republican state legislatures, and conservative courts.”

Justice Alito pushes back on calls to sit out a major Supreme Court climate case

Lawrence Hurley, NBC News

Next term, the court will hear a case concerning “an attempt by energy companies ExxonMobil and Suncor Energy to throw out a lawsuit in Colorado seeking damages for harms related to climate change.” In a May 14 letter to the Senate Judiciary Committee, “left-leaning groups” urged the committee “to investigate [Justice Samuel] Alito’s involvement in the case, citing in part his stock holdings in energy companies.” When asked about the letter by NBC News, a Supreme Court spokeswoman told NBC News that “Justice Alito does not have a financial interest in any party” involved, adding that “Alito was advised by the court’s legal counsel that ‘his recusal is not required.’” A representative of one of the groups that signed the letter told NBC News that “Alito should still step aside” because the court’s eventual ruling will impact other cases involving the energy companies he invests in.

Consumers sue Amazon for not refunding Trump tariff costs

Nate Raymond, Reuters (paywalled)

On Friday, a group of consumers seeking refunds for “costs passed on to them in the form of higher prices” before the Supreme Court struck down President Donald Trump’s signature tariffs sued Amazon.com Inc. “[I]n a proposed class action filed in federal court in Seattle,” according to Reuters, they “alleged that the e-commerce giant collected hundreds of millions of dollars in unlawful tariff costs by raising prices on imported goods before the Supreme Court had ruled.” Although other companies are facing similar lawsuits, the Amazon case is unique because the company is not seeking tariff refunds from the government. The consumers behind the new suit claim that the company “seeks to curry favor with Trump by allowing the federal government to retain the funds.”

Harris labeled 'institutional arsonist' for plan to fundamentally transform SCOTUS and Electoral College

Adam Pack and Kelly Phares, Fox News

Last week, former Vice President Kamala Harris “call[ed] on Democrats to consider expanding the Supreme Court” during a call with a “left-wing nonprofit” about what the Democratic Party should focus on moving forward, according to Fox News. “Let’s invite ideas, for example, that are about Supreme Court reform, including the notion of expanding the court,” Harris said. House Speaker Mike Johnson, a Republican from Louisiana, was among the Republicans who pushed back against Harris’ comments, accusing “Democrats of being ‘institutional arsonists.’” “For the former vice president of the United States and a candidate for president to suggest that you should pack the Supreme Court or destroy these institutions because they lost is I just think outrageous,” Johnson said.

Justice Dept. Aims to Denaturalize Ex-Marine for Sex Crime

Ernesto Londoño, The New York Times (paywalled)

A push from the Justice Department “to denaturalize a former Marine born in Ghana because of a sex crime he committed after he became a U.S. citizen” is putting Supreme Court precedent on denaturalization back in the spotlight, according to The New York Times. “A 1967 Supreme Court ruling effectively barred the government from stripping Americans of their citizenship unless they obtained it fraudulently,” but the DOJ has said “it would ‘maximally pursue denaturalization proceedings,’ targeting, among others, those who commit sex offenses, fraud and drug offenses.” The Times reported that the DOJ’s case against Nicholas Eshun centers “on a statute that applies to immigrants who” became citizens through military service but “fail to complete at least five years in the armed forces and depart without an honorable discharge.” Eshun “was dishonorably discharged from the military after four years and six months in the service” after being “charged with attempted sexual assault of a child” while in the military and reaching a plea deal.

On Site

Interim Docket

Court denies Virginia’s request to reinstate congressional map that would benefit Democrats

The Supreme Court on Friday evening turned down a request by Virginia’s attorney general and other Virginia Democrats to allow the state to use a new congressional map, which would have been expected to strongly favor Democrats, in the 2026 elections. The denial came in a brief, unsigned order sent to reporters at 6:30 p.m. EDT on Friday – just 15 minutes after the court’s Public Information Office distributed the reply filed by Jay Jones, the Virginia attorney general, and Democratic legislators.

Opinion Analysis

Court rules freight brokers can face negligent hiring suits under state law

A unanimous Supreme Court ruled on Thursday in Montgomery v. Caribe Transport II that federal law does not shield freight brokers from state lawsuits claiming they negligently hired dangerous motor carriers.

Opinion Analysis

Justices validate authority of federal courts to confirm arbitration awards – at least in cases already in federal court

Thursday’s opinion in Jules v. Andre Balazs Properties validated the authority of federal courts to enforce arbitration awards made in cases already pending in federal court.

From the SCOTUSblog Team

When (if ever) it’s appropriate to make jokes, take selfies, or curse before the court

The Supreme Court’s Guide for Counsel offers dos and don’ts for the attorneys who argue before the Supreme Court. It explains what the court is hoping to accomplish during an argument and gives a sense of how the court sees itself as an institution. Here’s what Kelsey learned from the guide about swearing, taking selfies, and the types of answers the justices like best.

From the SCOTUSblog Team

Justice Clarence Thomas reflects on shared values and his “deeper” friendships on a past court

Justice Clarence Thomas on Thursday afternoon spoke on the issue of shared national values. In an appearance at a conference outside Miami for judges and lawyers from the U.S. Court of Appeals for the 11th Circuit, which includes Alabama, Florida, and Georgia, Thomas described growing up in Georgia during segregation and said that “we shared a country, no matter how badly we were treated, with our fellow citizens.” Thomas also expressed nostalgia for earlier iterations of the Supreme Court, saying that “it’s a different court now” and he was “really grateful I had an opportunity to be on the court that I joined.”

A Closer Look

Death at the Lectern

In his recent (and controversial) TED Talk on preparing for Supreme Court argument and the value of AI in this process, SCOTUS advocate and Milbank partner Neal Katyal opened with: “There is a mahogany podium at the Supreme Court of the United States. One person died there, mid-argument, a stroke. Another collapsed there, dying soon thereafter.”

“I haven't heard about [the mid-argument death],” wrote Stanford Law School professor Orin Kerr on X a few days later. “Does anyone know the details?” Kerr then answered his own question in the thread: “Katyal adds that another lawyer collapsed during an argument and died soon after, which I believe refers to William Pinkney in 1822. ... The [death] reference appears to be to U.S. Attorney General Augustus Hill Garland, who had a stroke during argument in 1899, was carried to the clerk's office, and died there, at least according to this 1908 biography [called A Life of Mr. Garland].”

Naturally, we wanted to investigate this further.

Let’s start with Pinkney. A renowned advocate known for “dressing in the latest fashions” (and for denigrating his opponents; so much so that Daniel Webster once locked him in a room in the U.S. Capitol) Pinkney also “often appeared in Court evidently intoxicated.” Despite this, he argued “over half” the cases in the 1814-15 term. In 1822, while arguing against his frenemy Webster in Ricard v. Williams – a case about land ownership – Pinkney indeed collapsed on the court floor and died two days later. In his obituary, he was remembered as “str[iving] to preserve [fame] with increasing anxiety, until, exhausted by overwork, he died at Washington and was buried there.” Another wrote that “Pinkney did die, in one sense, opportunely for his fame.”

As for former U.S. Attorney General Garland, his health had apparently been in decline in the months and years before his 1899 death, but he reportedly thought his condition wasn’t serious. On Jan. 26, 1899, Garland took to the lectern to resume argument in Towson v. Moore, a property dispute, which had begun the day before. While in the clerk’s office before argument, Garland remarked that he was not feeling well and would take time off the following Monday to rest. Fifteen minutes into the court session, Garland abruptly stopped his reading from a law book, gasped, and fell sideways to the floor. He had suffered a stroke and despite efforts to revive him (he was carried from the chamber to the chief clerk’s room), Garland died within 10 minutes. His last sentence would be “This, your honors, is our contention.” Ironically, Garland (supposedly) had said in conversation just two months before that “It has been over forty years since I argued my first case. Nothing would please me better, when my time comes to die, than to be stricken right here in this court room in the midst of an argument. That would be a fitting climax to my career.”

Advocate Thomas Emmet, too, collapsed from a stroke mid-argument in 1827 and died; one newspaper said there was “‘something glorious and consolatory’ in the manner of his death.” Advocate Prew Savoy died within 36 hours of his arguing in front of the justices in 1957, doing so while suffering from an advanced stage of lung cancer.

There are tales of less serious (although somewhat embarrassing) incidents. Ohio Sen. Thomas Ewing fainted and collapsed while speaking at oral argument in 1869. His son, General Thomas Ewing, did the same 26 years later in an 1895 argument, apparently followed the next day by the elder Ewing fainting yet again (as one paper put it, “While making an argument before the Supreme Court he fell in a faint to the floor, in about three feet of the spot where his son sunk on the carpet yesterday.”)

One advocate in 1945 fainted after Justice William Douglas asked a pointed question (“Who drafted this affidavit?”). When the lawyer recovered, he told Douglas “[t]hat he had.” Douglas also recounted one advocate collapsing in 1973 while arguing in a Fourth Amendment case (the case was reargued the next week by a new lawyer).

As Chief Justice John Roberts once noted in a lecture about oral advocacy: “Supreme Court oral argument has always been vigorous and rigorous. Some advocates have collapsed in the face of it.”

SCOTUS Quote

JUSTICE BREYER: “All right. Look, we have the same question. I just want an answer to my question. And, for the purposes of this question, I am assuming enormously in your favor. I am assuming that this set of conditions is the worst thing since sliced bread.”

(Laughter.)

JUSTICE BREYER: “All right. I think there – all right. I'm assuming that in your favor. All right.”

JUSTICE SCALIA: “Sliced bread's supposed to be good.”

JUSTICE BREYER: “No, no. It's been proved bad.”

— Koontz v. St. Johns River Water Management District (2013)

Justice Sonia Sotomayor’s opinion for a unanimous court is strongly written and unqualified in her conclusion. She starts by situating this particular dispute in the overall setting of FAA litigation. As she says, a motion under the FAA “can arrive in federal court in one of two ways. Sometimes (like in this case), an FAA motion arises in a pre-existing lawsuit.” Here, for example, Jules sued his former employer raising a variety of employment discrimination claims; some of those claims rested on federal law and so permitted him to bring that suit in federal court. The FAA came into it when the employer (Balazs) filed a motion under the FAA to compel Jules to resolve the dispute in arbitration.

Sotomayor goes on to explain that “[i]n other cases, a ‘freestanding’ FAA motion can arrive in federal court outside of any pre-existing federal case.” Those cases, she notes, present a problem because the FAA is “something of an anomaly” in that it “is a federal statute that provides federal standards [but] ‘does not itself create federal jurisdiction.’” She then summarized the “two prior cases [in which the] Court has addressed how to assess jurisdiction over FAA motions filed as ‘freestanding’ actions in federal court.” The first, 2009’s Vaden v Discover Bank, presented a motion under Section 4 of the FAA to compel arbitration. In that context, “the Court held that … courts … assess jurisdiction by ‘looking through’ a motion to compel arbitration to the underlying dispute.” Only if federal courts would have had jurisdiction over litigation to resolve the underlying dispute – typically because the case raised a federal question or were from different states – would the federal court have jurisdiction over the freestanding Section 4 motion. The second was Badgerow, discussed above, a case involving motions to confirm or vacate arbitral awards under Sections 9 and 10 of the FAA. As mentioned above, because those motions alone presented no basis for federal jurisdiction, the Supreme Court rejected federal jurisdiction over the matter.

For Sotomayor, the “pre-existing jurisdiction over claims” that gave the district court federal jurisdiction over this case in the first instance left Vaden and Badgerow largely irrelevant. “To start,” she emphasized,

assessing jurisdiction over a § 9 or § 10 motion in a case originally filed in federal court does not require ‘looking through’ the filed action. Instead, the court may assess its jurisdiction by looking at the suit that is already before it. … Here, the District Court had original jurisdiction … over Jules’s federal claims.

For Sotomayor, because “[n]othing in the FAA eliminated that jurisdiction while the parties arbitrated, … when the parties returned to court after arbitration with § 9 and § 10 motions, the court had the same ‘jurisdiction to decide the case,’ and thus ‘jurisdiction to decide those motions,’ that it possessed from the start.”

Sotomayor acknowledged “that, by the time the parties filed the §9 and §10 motions here, the arbitrator had issued an award that marked ‘a contractual resolution of the parties’ dispute,’” but for her that only underscored the case for federal jurisdiction over those motions: “Those motions required the District Court to assess whether there were grounds to vacate the award,” and they “were thus integral to determining whether the award would continue to serve as a valid defense to the original claims that had been stayed, but were still pending … until the court confirmed the award.”

She closes with an emphatic summary: “[T]he question [here] is [] whether there is anything in the FAA that precludes the normal operation of federal jurisdiction regarding live claims that are still pending before a federal court. There is not.”

The denial came in a brief, unsigned order sent to reporters at 6:30 p.m. EDT on Friday – just 15 minutes after the court’s Public Information Office distributed the reply filed by Jay Jones, the Virginia attorney general, and Democratic legislators.

There were no public dissents from the order. The effects of the court’s order are likely relatively minimal, because Virginia Gov. Abigail Spanberger had already indicated earlier this week that the state would not use the 2026 map in the upcoming elections.

Jones and the other Virginia Democrats came to the Supreme Court on Monday, asking the justices to block a May 8 ruling by the Virginia Supreme Court that invalidated an amendment to the Virginia Constitution allowing the state’s Legislature to enact a new congressional map.

The Virginia General Assembly had adopted the new map in February. But before the state could actually use the map, it needed the state’s voters to approve an amendment to the Virginia constitution that would give the General Assembly the power to draw a new congressional map outside of the normal cycle following the decennial census. In April, voters approved an amendment to the state’s constitution that gave the General Assembly the power to do so. Nevertheless, a divided Virginia Supreme Court struck that amendment down on the ground that the Legislature had not followed the correct procedures when it put the new amendment on the ballot. The majority explained that under the state constitution, the Legislature must approve a proposed amendment to the constitution during two different legislative sessions, which must be separated by an election to the General Assembly’s House of Delegates. Although the Legislature had voted on the proposed amendment for the first time on Oct. 31, 2025, the majority said, more than 1.3 million votes had already been cast by then – and, therefore, “the General Assembly passed the proposed constitutional amendment for the first time well after voters had begun casting ballots during the 2025 general election.”

In their filing on Monday asking the justices to step in, Jay and the Virginia Democrats argued that the Virginia Supreme Court’s ruling “overthrows [a] democratic outcome just days before the Commonwealth must begin its preparations to administer the 2026 midterm election.” Moreover, they contended, the dispute implicates “two critical issues of federal law” – the meaning of the term “election” under federal law, and the idea that the state court so “impermissibly transgressed the ordinary bounds of judicial review” that its ruling should be reversed.

The Republican legislators (along with an election official and two individual voters) who challenged the new map countered that the request to block the state supreme court’s ruling was “extraordinary.” They emphasized that the case involved “state courts applying state law to hold state actors accountable” – and is thus not one in which the U.S. Supreme Court should intervene. To the extent that Jones and the Democrats now argue that the case involves federal issues, they added, the U.S. Supreme Court should not consider them because they did not raise those issues until they reached the Supreme Court.

In a filing on Friday afternoon, Jones and the Democrats pushed back, telling the justices (among other things) that “Spanberger’s candid acknowledgment of where things presently stand, which is not part of the record, does not foreclose this Court from acting.” Instead, they argued, her comments merely indicated that “the Commonwealth will conduct its elections in the manner the law requires, and this Court’s intervention will inform that conduct.”

Soon after the filing was submitted on Friday, the court denied the request by Jones and the Virginia Democrats without comment.

Thomas was interviewed for over an hour by Kasdin Mitchell, a former clerk who was recently nominated to serve as a federal judge in Texas. Mitchell asked Thomas to discuss remarks that he had made last month at the University of Texas to commemorate the 250th anniversary of the Declaration of Independence.

Thomas emphasized that the ideals outlined in the Declaration of Independence provide common ground for everyone in the United States. “We have different religions, we live in different places,” he said, but what do we have in common? “We can say this is something that we all treasure and we all agree on.” Even under segregation, he continued, we had that: as a child, he said, we “raised the flag everyday” and “said the Pledge of Allegiance.”

In response to a question from Mitchell about what it means for rights to be self-evident, Thomas suggested that “we’ve disenfranchised most people” with discussions of legal theories like textualism and originalism – the principles that laws should be interpreted based only on the plain meaning of the text, and that the Constitution should be interpreted according to how it would have been understood when it was enacted. “Most people don’t understand those,” Thomas said. Instead, he explained, “we were taught from the cradle that we were equal in God’s eyes. … We could own property.” “Others may intrude upon those rights … but it was not theirs to take away.” He concluded, “Even people who are unlettered when I grew up took it as a given that in God’s eyes we were equal.”

Noting that he had only planned to live in Washington, D.C., for two years but had stayed on for more than four decades, Thomas suggested that in Washington and other places many people fall short of the ideals outlined in the Declaration of Independence. These people, he said, “make promises and platitudes,” “but when it’s time to actually have courage ... they fail or they find a reason or an excuse” not to act. He compared them (unfavorably) with the signers of the Declaration of Independence – who, he said, “put their names down” and “sealed their fate by signing” the document, because they faced the possibility that they could be hung for treason.

Mitchell noted that last week Thomas became the second-longest serving justice (and in two years could become the longest-serving justice). Thomas responded wryly, “Thanks for letting me know that.”

As he has in previous public appearances, Thomas expressed nostalgia for earlier iterations of the Supreme Court, telling Mitchell that “it’s a different court now” and he was “really grateful I had an opportunity to be on the court that I joined.” When he joined the Supreme Court in 1991, he said, the court included several members of the “greatest generation” – the cohort born during the first quarter of the 20th century. “Most of them had been in the military” and “lived through the depression. They thought the institution” of the Supreme Court and “the Constitution were much bigger than they were,” Thomas stressed. 

Thomas indicated that during that era, “the friendships were much, much deeper than” they are now, adding that “I came of age on that court.” He had just turned 43 when he was confirmed, while some of his colleagues at the time “had children older than I was and yet they treated me very fairly.”

By contrast, he continued, he had known “the last four members of the current court” – Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson – when they served as law clerks at the court, while he was a sitting justice. “The relationships are different,” Thomas said, “even though they are not negative in any way.”

Thomas addressed his increased participation in oral arguments after the onset of the COVID-19 pandemic, which prompted the court to switch at first to telephone arguments, in which each justice took turns asking questions. When the justices returned to the courtroom in September 2022, they reinstated the “free for all” questioning that they had used before the pandemic, but they now follow it up with a “round robin” round of questions in which each justice has a chance to ask questions without interruption from the other justices. Before the pandemic, Thomas rarely asked questions – even though, as Mitchell told the audience, his clerks were instructed to provide possible questions with each memorandum that they prepared before oral arguments.

Thomas said that the “round robin” questioning during the pandemic “brought an order to the process.” Before the pandemic, he believed that the myriad interruptions were “rude and I said so.” He expressed satisfaction with the current set-up for oral arguments, which can often go well over the hour normally allotted. He said that “the current approach may run on a bit long, but you cannot say you have not had a chance to say your piece. … I can sit there all day.”

Thomas also discussed his hiring of law clerks and his efforts to hire clerks from a variety of law schools outside of the Ivy League. He said proudly that he had had law clerks “from each of the flagship law schools in the” 11th Circuit – the University of Florida, the University of Georgia, and the University of Alabama. “I think there’s smart kids a lot of places,” he said, adding that he had “a young woman coming” to start as a law clerk “who started in community college” because of financial and family circumstances. “I like kids from regular backgrounds,” he said, with “parents who worry about the mortgage and fixing the transmission on the car.”

The case began on Dec. 7, 2017, when Shawn Montgomery suffered severe injuries from an accident on Illinois Interstate 70, leading to the amputation of his leg and permanent disfigurement. Montgomery had pulled over due to a mechanical issue when a tractor-trailer driven by Yosniel Varela-Mojena apparently veered off the road and rear-ended Montgomery’s stopped vehicle. Varela-Mojena was hauling a load of plastic pots for his employer, Caribe Transport II, an Indiana-based interstate motor carrier, and the shipment had been arranged by freight broker C.H. Robinson Worldwide, Inc., and its affiliates, under a carrier agreement with Caribe II.

Montgomery sued C.H. Robinson, among others, arguing that the broker was liable because it knew, or should have known, that Caribe II was an unsafe choice to ship its goods. The lawsuit rested on the allegation of negligent hiring (i.e., when you engage a contractor for work that poses a physical risk to others, you have a duty to exercise reasonable care in making that choice). Specifically, Montgomery alleged that federal regulators had given the carrier a “conditional” safety rating when C.H. Robinson hired it, finding Caribe II deficient in such areas as driver qualification, hours of service, and crash rates.

C.H. Robinson moved to dismiss, arguing the suit was blocked by the Federal Aviation Administration Authorization Act of 1994. The FAAAA – a product of Congress’ effort to deregulate the trucking industry – preempts (that is, supersedes), in Section 14501(c)(1), state laws “related to a price, route, or service” of motor carriers or brokers “with respect to the transportation of property.” A negligent-hiring lawsuit, the company argued, is squarely covered by that. The district court and the U.S. Court of Appeals for the 7th Circuit agreed, while the U.S. Courts of Appeals for the 6th and 9th Circuits had ruled the other way.

Writing for the 9-0 court, Justice Amy Coney Barrett held that C.H. Robinson’s argument collided with an exception in the FAAAA. Namely, pursuant to Section 14501(c)(2)(A), the FAAAA’s preemption provision does not apply to “the safety regulatory authority of a State with respect to motor vehicles.” Barrett noted that “[a]ll agree that common-law duties and standards of care form part of a State’s authority to regulate safety.” Barrett then interpreted “with respect to” – a phrase the FAAAA did not define – to mean “concerns” or “regards” based on the ordinary dictionary definitions of these terms. A “motor vehicle,” under the FAAAA, is defined as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation.” A claim is therefore “with respect to motor vehicles” if it concerns the trucks used to move goods, as was the case here, Barrett explained.

Barrett also addressed three counterarguments from C.H. Robinson and the federal government. First, the company warned, Barrett’s reading would allow the safety exception to swallow the preemption clause whole – by siding with Montgomery, everything else that Congress had deemed preempted would now be subject to the safety exception. Barrett disagreed, explaining the safety exception covers only a subset of preempted state laws, specifically those “concerning motor vehicle safety.” State regulations governing what “a carrier may charge or which highways it may traverse,” she noted, would remain preempted.

Second, C.H. Robinson argued, Barrett’s reading creates surplusage, or redundancy, in the statute. Given that the FAAAA preserves a state’s regulatory authority with respect to both motor vehicles and the imposition of route controls based on the vehicle or cargo, having a specific safety carveout (as sought out by Montgomery) would be unnecessary. Barrett replied that the alleged overlap exists regardless of how the disputed phrase is defined, also noting that “the provisions can be harmonized: A State’s choice to impose route controls or weight limits may serve ends other than safety.”

Third, the company pointed to the structural oddity of a separate FAAAA subsection which fully preempts state regulation of brokers for intrastate shipping but contains no safety exception. Why, they asked, would Congress shield brokers from state oversight for in-state trips but not interstate ones? On this, Barrett noted that while “[i]t is not obvious why Congress included a safety exception” in one subsection but not the other, “it would be even odder to say that the alleged tort—the negligent hiring of an unsafe motor carrier whose truck caused injury—is not an exercise of ‘the safety regulatory authority of a State with respect to motor vehicles’” under the relevant provision. That text “controls,” Barrett explained. “Better to live with the mystery than to rewrite the statute.”

Justice Brett Kavanaugh, joined by Justice Samuel Alito, concurred separately to note that the case was “closer than the Court’s opinion perhaps might suggest.” Kavanaugh walked through the competing arguments at length, acknowledging that the statute’s insurance provisions and its intrastate preemption clause both cut in the company’s favor. However, he noted, he found the overall architecture of the statute decisive, since Congress in 1994 was pursuing economic deregulation of trucking, not safety deregulation. Kavanaugh also stressed that the ruling should not be understood as opening brokers to routine liability. Brokers that act reasonably and select reputable carriers “should be able to successfully defend against state tort suits,” he emphasized.

Pipoly was not randomly swearing, of course. He was repeating Trump’s own words. Still, I was intrigued by his decision to say them, especially after Justice Sonia Sotomayor had chosen to say “s-hole country” earlier in the argument when referencing the same quote.

For the rest of the discussion – and for days after it ended – I wondered about the courtroom protocol on swearing and how much of what happens before the justices can be explained by formal courtroom rules. Earlier this week, I finally had time to dig deeper, and discovered the court’s Guide for Counsel, which outlines dos and don’ts for the attorneys who argue before the Supreme Court.

While the guide is meant for people who participate in oral arguments – not those who merely observe them – I found that it serves both audiences well. What’s more, it explains what the court is hoping to accomplish during an argument and gives a sense of how the court sees itself as an institution.

So here’s a brief overview of what I learned from the court’s Guide for Counsel about swearing, taking selfies, and the types of answers the justices like best.

On addressing the justices

Under the present practice, “Mr.” is only used in addressing the Chief Justice. Others are referred to as “Justice Thomas,” “Justice Kagan,” or “Your Honor.” Do not use the title “Judge.” (Guide for Counsel, pg. 5)

Allow me to begin with an obvious point: a Supreme Court argument is not a casual affair. The justices wear black robes, the attorneys are to wear “conservative business dress in traditional dark colors,” and no one is to be referred to by their first name.

In fact, as the Guide for Counsel makes clear, attorneys should only use a few specific titles to refer to the justices: Mr. Chief Justice for Chief Justice John Roberts and “Your Honor” or “Justice [Last Name]” for the rest.

Longtime court followers may recall that it was once common for attorneys to mix up Justices Sandra Day O’Connor and Ruth Bader Ginsburg, the first two women on the court. The guide includes some advice for attorneys who risk making such an error: “If you are in doubt about the name of a Justice who is addressing you, it is better to use ‘Your Honor’ than to address the Justice by another Justice’s name.”

As you might imagine, these formal titles sometimes trip up attorneys, but in my memory, the justices rarely dwell on such mistakes. For example, during the Mullin argument, Pipoly stumbled at the beginning of a response to Roberts, saying “Justice – Chief Justice – Mr. Chief Justice. My apologies.” “Whatever,” Roberts replied.

On navigating interruptions

Never interrupt a Justice who is addressing you. … If you are speaking and a Justice interrupts you, cease talking immediately and listen. (Guide for Counsel, pg. 9)

Roberts is less accepting of other norm violations, including when attorneys fail to heed the court’s guidance on interruptions. While justices can – and regularly do – cut off counsel mid-answer, attorneys are not to interject when a justice is speaking.

Instead, according to the guide, an attorney is to give their “full time and attention” to a justice raising a question (“do not look down at your notes, and do not look at your watch or at the clock located high on the wall behind the Justices”) and is not to begin responding until the justice is finished speaking. The attorney also must “cease talking immediately and listen” when a justice interrupts them, even if that means leaving a sentence unfinished.

Roberts appeared to enforce this rule during the oral argument in January in Trump v. Cook, a case on whether Trump can fire Lisa Cook, a member of the Federal Reserve’s Board of Governors, while Cook’s challenge to her removal plays out. After U.S. Solicitor General D. John Sauer spoke over Justice Ketanji Brown Jackson, Roberts cut in to say “Counsel – please allow the justice ...,” prompting Sauer to say “I’m sorry.” (But don’t take this apology to mean that Sauer is done interrupting – he’s become known for being slow to cede the floor despite Roberts’ strict enforcement of this provision.)

On answering questions

Make every effort to answer questions directly. If at all possible, say “yes” or “no,” and then expand upon your answer if you wish. If you do not know the answer, say so. (Guide for Counsel, pg. 11)

Perhaps because interruptions are common, the guide advises attorneys to offer clear, direct answers, to respond with “yes” or “no” whenever possible, and to “[b]e prepared to skip over much of your planned argument and stress your strongest points.” It also instructs them not to “stonewall” when a justice “makes a point that is adverse to” their position, and to, instead, “concede the point” or explain why it does not lose them the case.

I can think of several times during recent arguments when justices called out an attorney for failing to directly answer a question, often because they launched into a lengthy preamble rather than facing the question head on. For example, in Chatrie v. United States, a case on whether geofence warrants violate the Fourth Amendment, Justice Neil Gorsuch expressed frustration when an attorney failed to offer a clear “yes” or “no.” “I just want an answer to my hypotheticals,” Gorsuch said.

As to the final part of the quote I included above, attorneys do seem to be willing (at least occasionally) to admit when they can’t answer a question. As I read through this term’s transcripts while working on this article, I found several instances when an attorney said some variation of “I don’t know.” Perhaps most notably, in the birthright citizenship case, Trump v. Barbara, Sauer acknowledged his uncertainty when Gorsuch asked if tribal members are birthright citizens. “I’m not sure,” Sauer said. “I have to think that through.”

On cracking jokes

Attempts at humor usually fall flat. The same is true of attempts at familiarity. (Guide for Counsel, pg. 10)

In addition to advising attorneys to stick to direct answers, the Guide for Counsel recommends against getting too cute. Attorneys, the guide explains, shouldn’t try to crack jokes or win points with the justices by treating them like old buddies.

As subscribers to our SCOTUStoday newsletter already know, that doesn’t mean that Supreme Court oral arguments are humorless affairs. In the newsletter, we regularly highlight funny moments from the courtroom. But most of them feature jokes from the justices, not attorneys.

When an attorney does get a laugh, it’s typically not because they chased one, but, instead, because they acknowledged losing their train of thought or said something unexpected. The biggest exception is Lisa Blatt, a prominent Supreme Court advocate who is known for pushing the envelope with her argument style. Blatt appears to relish opportunities to make a funny observation, such as in T.M. v. University of Maryland Medical System Corp., a case on the relationship between state and federal courts, when she predicted what the court wouldn’t do.

“... [S]o no, you’re not going to overrule [the Rooker-Feldman doctrine]. I mean, sorry, I don’t think you’re going to do that,” she said. “Not in an April case. Not happening.” Justice Samuel Alito elicited further laughter with his response: “Don’t – don’t dare my colleagues.”

Paul Clement also stands out for being willing to engage in more casual banter. During the Cook argument, for example, he used the phrase “full Taft” three times to refer to President William Howard Taft’s approach to removing officials.

Comments like these may make portions of the argument more memorable to the justices, but that certainly doesn’t mean all attorneys should ignore the guide’s advice on humor. To go “full Blatt” or “full Clement” – if you’re not Blatt or Clement – is to risk annoying or even insulting them.

On celebrating the occasion

The quill pens at counsel table are gifts to you—a souvenir of your having argued before the highest Court in the land. Take them with you. (Guide for Counsel, pg. 4)

An opportunity to argue before the Supreme Court is a big deal, but attorneys are a bit limited in how they can mark the occasion. As the Guide for Counsel notes, they can’t invite everyone they know to watch them in action (“The Marshal, depending on available space, will endeavor to accommodate as many of your guests as possible—not exceeding six spaces per side.”) and they also can’t take a selfie or pose for pictures at the podium (“No personal computers, cellular phones, cameras, or other electronic/wireless devices are allowed in the Courtroom”).

But attorneys do get to bring home a unique souvenir: quill pens. These items, featuring white goose feathers, sit on the counsel table and serve as a callback “to the early 1800s, when Chief Justice John Marshall provided lawyers with quill pens and inkwells to take notes.” In 2017, the ABA Journal investigated what modern attorneys do with these pens and noted that Blatt, at least at that time, displayed all of hers in her office; others framed theirs and passed them down to their kids.

So what about swearing?

Avoid emotional oration and loud, impassioned pleas. (Guide for Counsel, pg. 10)

Let us end where we began: with swearing. I discovered the Supreme Court’s Guide for Counsel when trying to determine whether attorneys can curse during oral arguments, but it didn’t actually answer my question. The resource says nothing about using profanity, although it does advise against being too “emotional” or “impassioned.”

To perhaps state the obvious, I think it’s fair to conclude that attorneys shouldn’t typically involve swear words in their argument, but that they can curse when repeating a direct quote – as Pipoly did – or when swear words are core to the case, such as in trademark disputes or cases on FCC regulations.

One case of particular note: In 1971’s Cohen v. California, Chief Justice Warren Burger discouraged swearing in a comment to the attorney arguing on behalf of a man who was convicted for “disturbing the peace by wearing a jacket that said ‘Fuck the Draft.’” “I might suggest to you that, as in most cases, the Court’s thoroughly familiar with the factual setting of this case, and it won’t be necessary for you, I’m sure, to dwell on the facts,” Burger said. But the attorney, Melville Nimmer, repeated the phrase anyway – and ultimately prevailed in the case. As Justice John Marshall Harlan II wrote in the majority opinion, “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric.”

Are you a Supreme Court nerd looking for property near Boston? We’ve got good news. Justice David Souter’s home in Hopkinton, New Hampshire, has hit the market, and it comes with “a curated collection of books from his personal library.”

At the Court

On Thursday, the court released two opinions in argued cases. In Montgomery v. Caribe Transport II, the court unanimously held that a claim that a freight broker negligently hired another company to transport goods is not preempted by the Federal Aviation Administration Authorization Act. In Jules v. Andre Balazs Properties, the court unanimously held that, under the Federal Arbitration Act, a court that has previously put claims in a pending action on hold has the power to confirm or vacate a resulting arbitration award.

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

Later on Thursday, the court granted requests from Danco Laboratories and GenBioPro to pause a ruling by the U.S. Court of Appeals for the 5th Circuit that had reinstated a requirement that the abortion pill mifepristone be dispensed only in person. Justices Clarence Thomas and Samuel Alito wrote dissenting opinions. For more on the case, see the On Site section below.

On Monday, Virginia Democrats and the state’s attorney general asked the court on its interim docket to reinstate its new congressional map. On Thursday, the Republican legislators who challenged the process by which the map was approved responded to that request. Find Amy’s analysis of the filing in the On Site section.

Also on Thursday, the court granted Texas’ request to vacate a stay of execution granted to Edward Lee Busby by the 5th Circuit. Justice Elena Kagan noted that she would have denied the request. Justice Ketanji Brown Jackson wrote a dissent from the denial, joined by Justice Sonia Sotomayor. Busby was executed Thursday evening.

The court has indicated that it may release opinions on Thursday, May 21, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.

Morning Reads

Justice Dept. Accuses Yale Medical School of Discriminating Against White and Asian Applicants

Michael C. Bender, The New York Times (paywalled)

On Thursday, the Department of Justice “accused the Yale School of Medicine of violating anti-discrimination laws” by favoring “Black and Hispanic applicants over more qualified white and Asian students,” according to The New York Times. “Harmeet K. Dhillon, the assistant attorney general for civil rights, said Yale was subverting a 2023 Supreme Court decision that overturned race-conscious admissions policies by relying on ‘proxies,’” such as life experiences and cultural events, “to determine the ethnicity of its applicants.” Dhillon emphasized “that applicant-level data provided by Yale show ‘virtually no difference in racial preferences of Yale admissions’ before and after the Supreme Court ruling.” “In a statement on Thursday, Yale said the students it admitted ‘demonstrate exceptional academic achievement and personal commitment’ and that it was ‘confident in the rigorous admissions process.’”

Watchdog groups urge Senate to investigate Samuel Alito over oil stock conflicts

Dharna Noor, The Guardian

Earlier this year, Justice Samuel Alito recused himself from a case brought by Louisiana parishes seeking to hold oil and gas companies liable for damage to the Louisiana coast due to his financial interest in ConocoPhillips. Now, “a coalition of watchdog organizations” is calling on him to recuse himself from a case to be argued next term on efforts to hold oil companies liable for damages allegedly caused by climate change, according to The Guardian. The organizations sent a letter to the Senate Judiciary Committee and asked lawmakers to investigate his “holdings in energy companies.” “His irregular recusal practice in oil and gas industry-related cases is undermining public confidence in the impartiality of the Court,” reads the letter.

Former Oklahoma death row prisoner freed from jail as he awaits retrial in 1997 killing

Jim Vertuno, Associated Press

An Oklahoma judge on Thursday granted a bond to Richard Glossip, who is “awaiting retrial for a 1997 killing that put him on the brink of execution three separate times,” according to the Associated Press. “Glossip had been sentenced to death over the 1997 killing in Oklahoma City of his former boss, motel owner Barry Van Treese, who was beaten with a baseball bat in what prosecutors have alleged was a murder-for-hire scheme. The Supreme Court ruled last year that prosecutors’ decision to allow a key witness to give testimony they knew to be false violated Glossip’s constitutional right to a fair trial.” Oklahoma Attorney General Gentner Drummond has since said that the state will retry Glossip “but not pursue the death penalty again.” Later on Thursday, Glossip “was released from incarceration for the first time in nearly 30 years … after posting bond.”

US appeals court questions Trump's push to punish major law firms

Mike Scarcella and David Thomas, Reuters (paywalled)

On Thursday, the U.S. Court of Appeals for the District of Columbia Circuit appeared “skeptical” of the Trump administration’s defense of executive orders targeting top U.S. law firms, according to Reuters. The orders “sought to bar the firms’ lawyers from accessing federal buildings and to terminate U.S. government contracts held by their clients. The orders also stripped employees of the firms of their government security clearances.” The administration contends that a “law firm’s business relationships, including the lawyers it hires, are not protected by the U.S. Constitution’s First Amendment.” The firms, which are represented by Paul Clement, counter “that Trump’s executive orders ‘strike at the heart of the First Amendment and the ability of lawyers to zealously represent their clients.’” Reuters noted that the case could ultimately land at the Supreme Court.

On Site

Interim Docket

Supreme Court allows for access to abortion pill by mail for now

The Supreme Court on Thursday afternoon issued an order that continued to block a ruling by a federal appeals court in Louisiana which had barred the mailing of mifepristone, one of two drugs used in medication abortions – the most common form of abortion in the United States. Justice Clarence Thomas dissented, arguing that the drug companies “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.” Alito also dissented, calling the court’s order “remarkable.”

Interim Docket

Republican legislators urge justices to leave Virginia Supreme Court’s redistricting ruling in place

Lawyers for a group of Republican legislators (along with an election official and two registered voters) urged the U.S. Supreme Court on Thursday afternoon to leave in place a ruling by the Virginia Supreme Court which struck down an amendment to that state’s constitution allowing the Virginia General Assembly to enact a new congressional map. Calling the request to pause the state supreme court’s ruling “extraordinary,” the legislators stressed that the case involved “state courts applying state law to hold state actors accountable.”

Contributor Corner

The fact of the matter

In her A Second Opinion column, Haley Proctor reflected on legislative facts – that is, facts of general import that a court considers when resolving legal questions – and the role they play in Second Amendment litigation.

Podcasts

Advisory Opinions

SCOTUS Clears Way for Alabama To Use Congressional Map

Sarah Isgur and David French discuss the court’s decision on Alabama’s congressional maps, the emergency docket filing on Virginia’s congressional map, and a very special 2-1 ruling from a panel of the U.S. Court of Appeals for the 9th Circuit.

A Closer Look

Justice Thomas Todd

How’d you like to be known as the most insignificant [insert your profession here]?

Thomas Todd has been repeatedly labeled “the most insignificant justice,” or – more kindly – a justice who “left a light imprint on the Supreme Court’s history.” We’ll let you decide if the title is appropriate for President Thomas Jefferson’s third appointee to the court.

Todd’s early life was shaped by hardship. Born in 1765 in Virginia, he lost his father before turning two and became an orphan at 11 when his mother died. A family friend ensured he received the classical education his mother had desired for him, but apparently “wasted the rest of Todd’s inheritance.” At 16, Todd enlisted in the Continental Army as a substitute for another draftee; six months of service later, he returned to Liberty Hall (now Washington and Lee University), graduating in 1783.

After graduating, Todd came under the wing of Harry Innes, a cousin to his mother and a Virginia attorney, clerking for Innes and tutoring his daughters in exchange for room and board. In 1784, Innes relocated the household across the Appalachians to present-day Kentucky, and Todd followed. He passed the bar in 1788, married Elizabeth Harris the same year, and opened a practice specializing in land and title disputes (a specialty well-suited to the then-western-expanding United States).

Kentucky achieved statehood in 1792, and Todd penned the first draft of the new state’s constitution before becoming secretary to its inaugural legislature. By 1801 he had joined the Kentucky Court of Appeals (then the state’s highest court) and by 1806 had risen to its chief justice. Congress then added a seventh federal judicial district and a seventh seat to the Supreme Court. Jefferson asked congressional representatives from the new district whom they would recommend, and they named Todd nearly unanimously. The Senate confirmed him by voice vote in March 1807, and Todd took the judicial oath in early May, becoming the first justice from west of the Appalachian Mountains.

Context matters considerably when evaluating Todd’s sparse record on the court. Reaching Washington from his home in Frankfort, Kentucky, required traveling more than 500 miles over roads that were frequently impassable during winter. The Marshall Court was also far from an equal distributor of opinions: Between 1816 and 1823, Chief Justice John Marshall wrote 124 of the court’s 302 opinions – nearly all of the decisions dealing with constitutional issues – while Justices Joseph Story and William Johnson wrote 113 between them, leaving the remaining four justices just 65. When illness kept Todd from the 1823-24 term, Story wrote to tell him his colleagues had wanted his input on multiple occasions, and that several Kentucky land cases had been held over solely because of his absence.

Of the roughly 600 opinions issued during Todd’s tenure from 1807 to 1826, he authored just 14 (11 majority, two concurring, and one dissenting), 10 of which involved land or survey disputes, with his lone non-land opinion being 1824’s Riggs v. Tayloe establishing that original documents must be produced as evidence when available (it’s actually kind of an interesting case).

But let’s return to Todd in the eyes of history – and where his rather poor jurisprudential reputation comes from. In what some might label a bit of a hit job, two separate pieces appeared in the same 1983 issue of the University of Chicago Law Review calling Todd “insignificant.” One professor, working from a “Pages Per Year” metric (applied only to constitutional opinions), “found Todd’s ‘unblemished muteness’ hardest to dismiss, noting he had ‘the longest sustained zero PPY of any Justice’ without having written anything of significance on circuit.” Another went further, deliberately expanding the survey beyond constitutional law to examine every opinion written in every area through Chief Justice Roger Taney’s last term. Using “opinions per opportunity” to adjust for earlier courts’ smaller dockets, Todd’s score came out to 0.022 – roughly one opinion authored per 46 opportunities that came before him (this included cases disposed of by signed opinions, cases disposed of “By the Court,” and any other “opportunities” he would have had to record his views). “The winner by default—in what other way can one win this kind of contest?—is Thomas Todd. Long may he reign,” wrote the author, then-professor (and now 7th Circuit judge) Frank Easterbrook.

Todd died in February 1826, in Frankfort, Kentucky, at 61, survived by eight children and a substantial estate. In his review, White did offer a few counterpoints to the “insignificant” verdict: the characterization, he argued, rests largely on 1) the scarce surviving records and 2) a lack of appreciation for the early Marshall court’s differences, given its circuit riding, Marshall’s near-monopoly on constitutional opinions, and the importance of the land disputes that Todd resolved. So there you go: although Todd will likely never be considered a top-tier justice, his reputation as the court’s most insignificant one may prove a bit overstated (here’s looking at you, Gabriel Duvall).

SCOTUS Quote

“Better to live with the mystery than to rewrite the statute.”

— Montgomery v. Caribe Transport II, LLC  (2026)

Ask Amy

I sometimes wonder about the correct pronunciation of certain Supreme Court decisions, like this term’s Chatrie case. Like the graduation announcer at a big school, does the chief justice ask how the parties pronounce their names?

Yes, he does – or at least the Supreme Court does, in a form that lawyers submit to the court before a case is argued. That form asks not only for the name of the lawyer who will be arguing the case on behalf of a litigant, but also for a phonetic pronunciation of that lawyer's name. It then does the same thing for the litigant whom the lawyer is representing.

Having said that, phonetic pronunciations will only get you so far, especially if the lawyers (or the paralegals) filling out the forms do not have a background in linguistics. You can see this if you compare the first argument in Louisiana v. Callais (in March 2025) with the reargument seven months later, when Chief Justice John Roberts pronounces both "Callais" and the last name of Louisiana Solicitor General Benjamin Aguiñaga two different ways.

Confusion over how to pronounce a litigant's name also doesn't always end once the case is decided. As Kelsey noted in the Oct. 16, 2025, edition of SCOTUStoday, during the second oral argument in Callais, the justices couldn't agree on how to pronounce "Gingles," the name of a landmark 1986 redistricting case. Maybe from here on out we can just call it "Thornburg" instead?

The 15-page filing came just three days after the state’s attorney general, Jay Jones, and other Virginia Democrats asked the justices to block the state supreme court’s decision and allow the state to use the new map, which is expected to strongly favor Democrats, in the 2026 elections.

The Virginia General Assembly had adopted the new map in February of this year, as part of the ongoing effort by states across the country to give one political party or the other an advantage in the U.S. House of Representatives. But before the state could actually use the map, it needed the state’s voters to approve an amendment to the Virginia constitution that would give the General Assembly the power to draw a new congressional map outside of the normal cycle following the decennial census. Voters approved that amendment in April by a margin of around three percentage points.

A divided Virginia Supreme Court invalidated the amendment on May 8. It ruled that because the General Assembly had not followed proper procedures when it put the new amendment on the ballot, the referendum was not valid. Specifically, the majority reasoned, under the state constitution the General Assembly must approve a proposed amendment to the constitution during two different legislative sessions, which must be separated by an election to the General Assembly’s House of Delegates. But in this case, the majority said, more than 1.3 million votes had already been cast by the time the General Assembly first voted on the amendment on Oct. 31, 2025, and thus “the General Assembly passed the proposed constitutional amendment for the first time well after voters had begun casting ballots during the 2025 general election.”

Jones and the Virginia Democrats defending the General Assembly’s actions came to the Supreme Court on Monday, asking the justices to intervene. They contended that the dispute implicates “two critical issues of federal law” – specifically, the meaning of the term “election” under federal law, and the idea that the state court so “impermissibly transgressed the ordinary bounds of judicial review” that its ruling should be reversed. Moreover, they added, the Virginia Supreme Court’s ruling “overthrows [a] democratic outcome just days before the Commonwealth must begin its preparations to administer the 2026 midterm election.”

In their filing on Thursday afternoon, the Republican legislators countered that it is too late for the Supreme Court to intervene now because Jones had “‘identifie[d] May 12 as the point of no return’ for on-the-ground election preparations.” Indeed, they noted, Virginia Gov. Abigail Spanberger has now indicated that Virginia will not use the 2026 map in the upcoming elections.

The Supreme Court should also leave the Virginia Supreme Court’s ruling in place, the legislators continued, since Jones and the Democrats did not make any of their arguments based on federal law until they reached the Supreme Court. Because they “never raised federal claims below,” the legislators contended, “[t]he Virginia Supreme Court didn’t decide any. This Court shouldn’t consider them for the first time.”

The Supreme Court on Thursday afternoon issued an order that continued to block a ruling by a federal appeals court in Louisiana which had barred the mailing of mifepristone, one of two drugs used in medication abortions – the most common form of abortion in the United States. Justice Samuel Alito, who handles emergency appeals from the U.S. Court of Appeals for the 5th Circuit, had last week temporarily put the lower court’s order on hold until 5 p.m. EDT on Monday to give the justices time to consider a request from two companies that manufacture mifepristone; he then extended that hold until Thursday at 5 p.m. Thursday afternoon’s order by the court, which was not sent to reporters until 5:26 p.m., extended that pause once again, and allows mifepristone to continue to be sent through the mail while litigation continues in the lower courts.

Justice Clarence Thomas dissented, arguing that the drug companies “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”

Alito also dissented. He called the court’s order “remarkable,” and he contended that “[w]hat is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization,” the court’s 2022 decision overturning the constitutional right to an abortion recognized in Roe v. Wade.

The dispute over mifepristone is not a new one for the Supreme Court. In 2023, in a lawsuit brought by several doctors who are opposed to abortion on religious or moral grounds, as well as medical groups whose members are opposed to abortion, U.S. District Judge Matthew Kacsmaryk rescinded both the FDA’s initial approval of the drug in 2000 and its 2016 and 2021 expansions of access to it, which included allowing the drug to be used through the 10th week of pregnancy, allowing health-care providers who are not physicians to prescribe the drug, and permitting it to be prescribed without an in-person visit.

The 5th Circuit concluded that the challenge to the FDA’s approval of mifepristone in 2000 had come too late, but it upheld the portion of Kacsmaryk’s ruling that rolled back the agency’s 2016 and 2021 changes that had expanded access to mifepristone.

The FDA and Danco Laboratories, which makes mifepristone, appealed to the Supreme Court, which ruled in 2024 that the doctors and medical groups did not have a legal right to sue, known as standing, to challenge the Food and Drug Administration’s expansion of access to mifepristone. In a unanimous ruling, Justice Brett Kavanaugh wrote that although the challengers’ objections were “sincere,” they did not give them a right to bring a lawsuit, because the doctors and medical groups had not shown that they would be harmed by the FDA’s mifepristone policies.

Louisiana went to federal court last fall, seeking to reinstate the in-person dispensing requirement. After U.S. District Judge David Joseph paused the proceedings while the FDA finished its own review of mifepristone’s safety, Louisiana went to the 5th Circuit. That court agreed that Louisiana has a right to sue. It reasoned that, by allowing mifepristone to be prescribed by telehealth and sent by mail, the “FDA ‘opened the door for mifepristone to be remotely prescribed to Louisiana women,’” even though Louisiana generally bars abortion. Moreover, the court of appeals continued, the in-person dispensing requirement should be restored while the litigation continues, because (among other things) the state is likely to prevail in its challenge to the expansion of access to mifepristone.

The drug manufacturers, Danco and GenBioPro, came to the Supreme Court on May 2, asking the justices to intervene. They argued that, like the doctors and medical groups in the 2024 case, Louisiana does not have standing to challenge the in-person dispensing requirement. If anything, Danco suggested, “Louisiana’s theory—that it can base standing on having to pay those doctors if someone who received FDA-approved mifepristone through the mail seeks follow-up care to treat a complication—is a more attenuated version of the” theories that the court specifically rejected two years ago. And Louisiana’s claim that it is injured because of the disconnect between federal law and its own state law is not the kind of injury that courts can review, Danco said. Putting the 5th Circuit’s order on hold, GenBioPro argued, merely “will allow the years-long status quo to remain in force while the Food and Drug Administration (‘FDA’) completes its ongoing review” of mifepristone’s safety.

In its response to these requests, Louisiana insisted that it has a legal right to sue because its sovereignty has been injured, both by the violation of its laws and by its inability to enforce those laws, and because it has incurred costs as a result of the roll-back of the in-person dispensing requirement – for example, it has had to spend more than $17,000 to investigate three cases involving mifepristone sent through the mail from out of state, and it has had to pay “over $92,000 in Medicaid dollars … for emergency room care and hospitalization resulting from just two mifepristone-induced abortions in 2025.”

Moreover, Louisiana argued, it is likely to prevail on the merits of its claims. It emphasized that the FDA itself is not defending the decision to allow mifepristone to be sent through the mail. And both lower courts, it said, “also rightly concluded that Louisiana is likely to succeed in its” argument that the FDA violated the federal law governing administrative agencies when it reached that decision. For example, the state wrote, the lower courts agreed that the FDA had relied too heavily on the absence of data reflecting adverse effects from the use of mifepristone when it had eliminated the mandate to report such data.

In his brief dissenting opinion, Thomas contended that the shipment of mifepristone for use in abortions violates a federal law, the Comstock Act, which makes it a crime to use “the mails” to ship “any ‘drug . . . for producing abortion.’” Therefore, he wrote, the drug companies are not entitled to a pause of the lower court’s order “based on lost profits from their criminal enterprise.”

Alito, in a separate dissenting opinion, wrote that although states like Louisiana had responded to the court’s ruling in Dobbs by enacting prohibitions on abortion, doctors who violate that ban by sending mifepristone into Louisiana do not face “any adverse legal consequences” because other states, like New York, have passed “shield” laws to protect them. “This scheme,” Alito asserted, “would not have been possible under FDA regulations had the federal government not taken steps in 2021 and 2023 to facilitate mail-order abortions.” Alito stated that he would deny the drug companies’ request “because, as things now stand, the manufacturers have failed to show that they face irreparable injury.” “Unless the Fifth Circuit’s order spurs the FDA into moving on its safety review,” Alito suggested, “there is no indication that the Fifth Circuit’s order will adversely affect the manufacturers whatsoever in the near future. All the evidence is to the contrary,” he concluded.

On the ground floor of the Supreme Court building, a statue of the Supreme Court’s most influential chief justice, John Marshall, greets visitors with an outstretched hand. On the wall behind him, in gilded lettering, is one of his most influential contributions to the U.S. Reports: “IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS.”

True enough. The Supreme Court embraces this role enthusiastically, taking up only those cases that present “important federal question[s],” by which it mostly means important questions of federal law.

But often the cases that come before the court involve “important federal questions” that are more factual in nature. For example: does glyphosate, a key ingredient in Roundup, cause cancer? Last month, the court heard argument in an appeal from a jury verdict finding that it does. The parties have not asked the court to decide whether the jury’s finding was correct. Instead, Monsanto (Roundup’s manufacturer) argues that the jury was not entitled to make such a finding, given that a federal agency has already decided that glyphosate does not present enough of a cancer risk to warrant a warning label.

This type of fact – glyphosate does/does not cause cancer – is commonly called a “legislative fact.” That term distinguishes general facts about the world from “adjudicative facts,” which are the who, what, where, and when of individual cases. The “legislative fact” label nods to the role these inquiries might play in formulating public policy. Yet they sometimes come up in individual cases, in which individual parties are deeply invested in the answer. This month’s column is about who finds legislative facts and the role legislative facts play in Second Amendment litigation.

Who decides?

The Roundup case focuses with unusual clarity on a question that lurks in many of the cases that attract national attention: who decides factual questions of general import? Not, “did Frank W. Nix import tomatoes from the West Indies in 1886?” But instead, “whether tomatoes, considered as provisions, are to be classed as ‘vegetables’ or as ‘fruit’ within the meaning of the Tariff Act of 1883.” Not, “did Curt Muller require Mrs. E. Gotcher to work in his laundry for more than the ten-hour limit set by Oregon’s maximum hours law?” But instead, whether “long hours of labor [are] dangerous for women, primarily because of their special physical organization.”

The answer to that question – the one about “who decides,” not the ones about tomatoes or women’s physical capacities – is “it depends.” Sometimes, Congress acts on a “rational speculation” about the matter in passing a law, and courts must accept Congress’ finding even if it is “unsupported by evidence or empirical data.” Sometimes, a federal agency will make detailed findings of fact that reviewing courts must accept if they are supported by “substantial evidence.” Sometimes, the Supreme Court settles a question based on amicus briefs and independent research. Sometimes, as in the Roundup case, a jury draws its own conclusion based on evidence presented in a courtroom. This is to name just a few of the many ways our judicial system answers factual questions of general import.

Here is what is surprising: we do not have very clear rules about when each of the many available methods for settling questions of “legislative fact” is appropriate. One difficulty is that the term itself captures concepts on either side of the law-fact distinction that usually determines “who decides.” Some, indeed many, so-called “legislative facts” play a role in answering questions of law (e.g., knowing the ordinary meaning of “arms” in 1791 helps us understand what the Second Amendment means). Other “legislative facts” are relevant to questions of fact (e.g., knowing the coefficient of friction for wet asphalt helps us know whether John Doe lost control of his car he took the curve at 50 mph in the rain). To take just one instance of “who decides,” if I tell you that “law” is for the judge, while “fact” is for the jury, where do “legislative facts” go?

In arguing on behalf of Monsanto, Paul Clement repeatedly emphasized that the finding there had been made “by a single Missouri jury.” Glyphosate is “probably the most . . . studied herbicide in the history of man,” and there is a fairly widespread consensus among regulators that it does not cause cancer. Why, he suggested, should a handful of Missourians get to decide whether Monsanto labels it as a carcinogen?

On the other hand, Ashley Keller argued on behalf of plaintiff John L. Durnell, why should a 50-year-old agency finding prevent Durnell from trying to persuade a jury of his peers that his lymphoma was caused by his exposure to Roundup? Maybe that results in a “crazy quilt” of findings about Roundup’s risks from different juries, but “that’s just the consequence of our civil jury system, where you have individual cases or controversies.”

In Monsanto v. Durnell, the solution to this conundrum depends not on the justices’ own views about the best way to figure out whether glyphosate causes cancer, but instead on whether Congress has (wisely or foolishly) bound states to follow the federal agency’s determination. But in many other contexts, the Supreme Court’s answer to “who decides” has indeed “turned on a determination that, as a matter of sound administration of justice, one judicial actor” – or legislative or administrative actor – “is better positioned than another to decide the issue in question.”

That is not a good way to do things. As I have argued elsewhere, “who decides” should depend on what role a question plays in resolving the case or controversy, and in what procedural consequences follow from that role under the law.

Again, take Monsanto. Mr. Durnell needed to prove that glyphosate caused his cancer to prove his case against the company. That is a classic question of fact for a jury, and its susceptibility to generalization – that is, it would follow that glyphosate is a carcinogen – does not change its status as a fact. Sometimes, though, courts must make general factual determinations to answer questions of law – that is, to figure out the legal rule under which the case will be resolved. When this is the role that a so-called “legislative fact” plays in the litigation, different procedural consequences follow. The job of finding it goes to the judge, not the jury, and the judge is not limited to considering evidence presented in a trial-like setting.

Legislative facts that figure in questions of law are especially common in constitutional cases, and judicial handling of them has been lamentably inconsistent. Nowhere is this more apparent than in Second Amendment litigation.

Legislative facts in Second Amendment litigation

Under the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, in which the court found there was a constitutional right to carry a firearm, facts about history have become increasingly important in Second Amendment litigation. As I explained in an earlier column, these historical facts are the type of “legislative facts” that are facts about law and should be treated as such. But what about modern day facts? These come up in Second Amendment litigation, too.

In United States v. Hemani – a case this term that poses the question whether the government can disarm a man who admits to using marijuana every other day – there are factual questions about the behaviors of habitual drug users. The answer to these questions matters because the court has held that the “Nation’s historical tradition of firearm regulation” permits the government to temporarily disarm individuals found “to pose a credible threat to the physical safety of another.” Can Congress make a categorical judgment that those who abuse drugs pose this sort of danger? If it does, then how closely should a court scrutinize that finding? Or does the Second Amendment demand that a jury “make an individualized finding about whether somebody’s use is impacting their day-to-day life” in a way that makes them a threat to others?

Or consider the many cases working their way through the courts in which parties challenge categorical bans on types of weapons (e.g., semiautomatic rifles) or their components (e.g., magazines). The Supreme Court has recognized that the nation’s historical tradition of firearm regulation forecloses bans on weapons that are “in common use.” Is the question whether an arm is “in common use” one the rights claimant must answer as a “question of fact” in the course of proving that his rights are being infringed? Or is it one the government must answer as a “question of law” in the course of proving that its ban fits the Nation’s historical tradition of firearm regulation?

The answer does not depend on our gut sense that these matters are factual in nature, or our beliefs about the most efficient way to settle them. It depends, instead, on the law, which in turn demands a careful assessment of their role in the case.

Take Hemani: The relevant historical tradition is comprised of regulations that involved an individualized determination that a person was dangerous. It is doubtful whether this historical tradition would accommodate a law that involves a categorical judgement – i.e., that all drug users are dangerous – regardless of the quality of congressional factfinding to support that judgment. Such a law simply would not fit the tradition of individualized assessment. Perhaps Congress could pass a different law, disarming individuals found to be dangerous due to their drug use. Under that law, though, the government would bear the burden to prove to a judicial factfinder (i.e., a jury), on a case-by-case basis, that the individual defendant presents a danger due to his drug use.

Arms bans are another matter. In District of Columbia v. Heller, the court acknowledged the existence of a “historical tradition of prohibiting the carrying of ‘dangerous and unusual’ weapons.” And it held that bans on weapons “in common use at the time for lawful purposes” – like handguns today – do not fall within that tradition. The tradition Heller recognized might tolerate a categorical legislative judgment that a type of weapon is “dangerous and unusual.” And the government may be able prosecute someone under such a law without persuading a jury that the individual firearm the defendant possessed was “dangerous and unusual.”

But in defending that law against a constitutional challenge, the government would have to satisfy the court that Congress’ judgment that that type of arm is “dangerous and unusual” is correct. Otherwise, the court cannot instruct the jury that a valid law prohibits possessing such an arm. A law banning arms that are in “common use” (and thus not “dangerous and unusual”) would be void, and a jury could not apply it to the facts of the case. Because the “dangerous and unusual”/“common use” analysis determines whether the law banning the arm can supply a rule of decision in the case, the inquiry – like the inquiry about the history of firearms regulation – is a question of law.

As it is, practice in lower courts is all over the map. Many lower court judges have treated questions about history and arms ownership alike as evidentiary matters, subject to procedures designed for questions of fact. And others have treated questions about a person’s dangerousness as matters of legislative judgment, to which courts must defer once it is encased in a law disarming a group of people. These practices do not simply violate the procedural rules that govern “who decides” matters of law and fact. Because procedural choices shape case outcomes, they have a significant impact on the substantive right claims at issue in the litigation. It matters a good deal to someone facing jail time for keeping and bearing arms (or speaking or worshiping . . . ) whether he can put the government to its proof that he has acted outside the bounds of his constitutionally protected rights.

Legislative facts are everywhere. The court’s Second Amendment cases present an excellent opportunity to provide clearer guidance about who finds them.

At the Court

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

Last week, in response to requests from Danco Laboratories and GenBioPro, Justice Samuel Alito temporarily paused a ruling by the U.S. Court of Appeals for the 5th Circuit reinstating the requirement that the abortion pill mifepristone be dispensed only in person. That pause will expire today at 5 p.m. EDT, so the court is expected to act soon.

On Monday, Virginia asked the court on its interim docket to reinstate its new congressional map. A response to that request is due this afternoon by 5 p.m. EDT.

Morning Reads

Supreme Court faces new criticism for redistricting decisions so close to the 2026 elections

Lawrence Hurley, NBC News

Although it’s been more than two weeks since the Supreme Court released its Louisiana v. Callais decision, “liberal lawyers and commentators” continue to debate whether the court failed to follow its own guidance on when to rule in election-related cases, according to NBC News. “The Supreme Court has frequently admonished judges not to interfere in election cases when the process is already underway, but it is now being accused of doing exactly that in” Callais and other “recent decisions favoring Republicans in redistricting fights.”

Democrats are going there on attacking the Supreme Court. Here’s what it could mean

Aaron Blake, CNN

After the recent rulings on congressional redistricting, “Democrats’ rhetoric” about the court “has taken a turn,” according to CNN. “Increasingly, they’re not just sharply criticizing the court; they’re attacking its legitimacy, calling it corrupt, painting it as overtly political and warning it will live in infamy.” CNN noted that these comments “risk[] delegitimizing a key branch of government,” and that “it’s not yet clear” if they will actually pay off for Democrats at the polls. The critiques “could motivate passionate portions of the Democratic base,” but may not appeal to swing voters. In general, polls show “that large swaths of the country” do not buy into “the idea that the court is hopelessly captured and illegitimate.”

Justice Ketanji Brown Jackson asks public to back judicial independence

Josh Gerstein, Politico (paywalled)

During a pair of appearances on Tuesday at Southern Methodist University in Dallas, Justice Ketanji Brown Jackson urged listeners to defend the judiciary’s independence, contending that everyone benefits when judges are “not beholden to the political branches or beholden to people,” according to Politico. When asked about the current “atmosphere” at the Supreme Court, Jackson didn’t dig into the ongoing fallout from the court’s recent decisions on tariffs and the Voting Rights Act, and instead emphasized that the justices “are very good at compartmentalizing.” “Yeah, no, it’s fine,” Jackson said of the atmosphere. “In the world of law and the world of writing your opinions, you’re going to disagree, and you have the opportunity to express your views in the context of your opinions, but in our day-to-day interactions, none of us takes it personally, and we get along just fine.”

Appeals court spares Trump from paying $83 million defamation award to E. Jean Carroll — for now

Michael R. Sisak and Larry Neumeister, Associated Press

The U.S. Court of Appeals for the 2nd Circuit has “agreed to a request” made by President Donald Trump’s legal team to let the president delay paying an “$83 million defamation award” to E. Jean Carroll “until the U.S. Supreme Court gets a chance to review the case or reject an appeal,” according to the Associated Press. However, the 2nd Circuit will require Trump to “post a $7.4 million bond to cover any additional interest costs, a request Carroll’s attorney had made.” The defamation award stems from comments Trump made about Carroll in 2019 after she claimed that he “sexually attacked” her “in a Manhattan luxury department store dressing room in spring 1996.” In a separate case on these allegations, a jury “awarded Carroll $5 million after concluding Trump sexually abused her in the department store and then defamed her after she published her account of it in a 2019 memoir.” Trump has asked the Supreme Court to review that $5 million judgment and is expected to appeal the $83 million judgment soon.

Becoming Justice Gorsuch

Susan Matthews, Slate (paywalled)

On Wednesday, Slate announced a new season of the podcast “Slow Burn” focused on Justice Neil Gorsuch. The announcement doubled as a lengthy reflection on Gorsuch, whom Slate described as “the most anonymous member of the bench,” who avoids “provoking the ire that some of his fellow right-wing justices receive” with, in Susan Matthews’ view, a “nice-guy act.” The story emphasized Gorsuch’s use of textualism, a method of legal interpretation that focuses on “the words that end up on the page,” rather than lawmakers’ intentions, and contended that it leads him – and the court – to “absurd results.”

On Site

From the SCOTUSblog Team

A brief guide to each chief justice of the United States

Last Friday in this newsletter, we finished providing brief biographies of each chief justice of the United States. In light of that achievement, we put together a story sharing the highlights from each of their short bios.

Contributor Corner

The government’s Fourth Amendment double standard

In his Civil Rights and Wrongs column, Daniel Harawa explored a petition for review in which the government asks the court to hold that race cannot be considered when analyzing whether someone has been seized for purposes of a Fourth Amendment analysis. That position, according to Harawa, “is hard to square” with the government’s insistence in a recent case on immigration stops that race “can be a factor supporting reasonable suspicion.” “Race, on th[at] account, does constitutional work for the government and then disappears when it is the citizen’s turn. That is untenable.”

Contributor Corner

Can the state force religious preschools to promote other religions?

In a column for SCOTUSblog, Denise Harle highlighted the petition for review in Foothill Christian Ministries v. Johnson, which raises “interconnected free-speech and free-exercise issues.” Specifically, it asks whether the government can require religious preschools to promote other religions. The petition is scheduled to be considered by the justices during today’s conference.

Podcasts

Amarica's Constitution

JFK's Wall

Akhil Amar and Andy Lipka’s journey through centuries of religious practice, attitudes, and constitutionalism reaches the 20th century, when several presidential elections set mileposts for the American religious debate.

A Closer Look

Doe v. X Corp.

Section 230 of the Communications Decency Act has been in the news regularly this spring amid legal battles over whether social media sites can be held liable for allegedly harming young users’ mental health. The law states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 makes it so that sites generally can’t be held accountable for content uploaded by users, and it’s proven to be a powerful defense for sites accused of allowing dangerous information to spread unimpeded.

During the 2022-23 term, the Supreme Court heard two cases on the scope of Section 230 and declined to limit its application. In Twitter, Inc. v. Taamneh, a unanimous court held that a family’s effort to hold Twitter, Facebook, and Google liable for aiding and abetting international terrorism by failing to remove content related to ISIS was barred by Section 230. The court then sent the second case, Gonzalez v. Google LLC, on whether Google could be held liable for the spread of ISIS recruitment videos on YouTube, back to a lower court for further consideration in light of Taamneh.

Since then, the court has declined other opportunities to address the scope of this law, including in Doe v. Snap, Inc., in which the court was asked to weigh whether Snapchat was immune from a lawsuit over its design – specifically, over how sexual predators took advantage of its emphasis on vanishing photos to prey upon young users. The court denied the petition for review in July 2024, but Justice Clarence Thomas dissented from the denial in an opinion joined by Justice Neil Gorsuch. “Although the Court denies certiorari today, there will be other opportunities in the future. But, make no mistake about it—there is danger in delay,” Thomas wrote. “Social-media platforms have increasingly used §230 as a get-out-of-jail free card.”

At their private conference on Thursday, the justices will again consider whether to revisit Section 230 in a case involving Twitter (now known as X). In Doe v. X Corp., two unnamed plaintiffs seek to hold the site accountable for failing to remove child pornography, and they’ve asked the court to hold that Section 230 does not bar their claims.

The dispute began in 2020, when, according to the petition for review, sex traffickers who tricked John Doe 1 and John Doe 2 into sending them sexual content when they were young teenagers uploaded that content to Twitter. Doe 1 and his mother contacted the site and asked for it to be taken down, emphasizing that it featured underage boys and was therefore child pornography. Twitter declined to remove the content, informing Doe 1 that it “didn’t find a violation of our policies.” Finally, nine days after Doe 1 first reached out – and after an official with the Department of Homeland Security had also reached out, after being contacted by Doe 1’s mother – Twitter removed the posts.

Doe 1 and Doe 2 sued Twitter, alleging, among other things, that it had knowingly distributed child pornography and that it has failed to develop the tools needed to ensure that such content will not spread on its site. Citing Section 230, a federal district court dismissed the vast majority of the counts, concluding, as the U.S. Court of Appeals for the 9th Circuit later summarized, “that because these counts sought to treat Twitter as a publisher of third-party content—child pornography generally, and the video of Plaintiffs specifically—Twitter was immune under §230.” The 9th Circuit affirmed most of those dismissals, but held that claims related to how Twitter fields concerns about pornographic material could move forward because they address the site’s design and the company’s duty to report child pornography to the National Center for Missing and Exploited Children and “do not arise from Twitter’s role as a publisher.”

In their petition for review, the Does urge the justices to review the 9th Circuit’s ruling and allow the dismissed claims to move forward. Specifically, they contend that Section 230 does not grant immunity when a company allows “criminal content” to remain on its site even after being notified about it. Holding that this law shields companies from such lawsuits “puts §230 at war with itself,” according to the petition, because lawmakers included language in the provision to encourage sites to identify and restrict children’s access to “objectionable or inappropriate online material,” and “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

In its response, X counters that the 9th Circuit applied a “settled interpretation of Section 230 ... on which the digital economy has relied for nearly 30 years.” The Supreme Court should not, X continued, take the “destabilizing step” of holding that a site loses its Section 230 immunity and can be treated like a publisher of child pornography if it doesn’t move quickly enough in addressing content concerns.

Doe v. X Corp. is scheduled to be considered by the justices for the first time on Thursday.

SCOTUS Quote

MS. MOSKOWITZ: “… if the parent is concealing the child – for example, if the parent is moving from place to place to evade detection or changing the child’s name or not enrolling the child in school to avoid detection –”

JUSTICE SOTOMAYOR: “My gosh, all it takes is moving to Peoria. I mean, I don't mean to denigrate Peoria, but all it takes is moving to a place that has no connection to –”

JUSTICE SCALIA: “Justice Sotomayor is from New York.”

JUSTICE SOTOMAYOR: “Yes, obviously.”

— Lozano v. Montoya Alvarez (2013)

John Jay

Chief Justice John Marshall may get all the attention, but John Jay was there first. A successful lawyer in private practice, Jay first made his mark on history as the tensions between Great Britain and the colonies escalated and then exploded. Among other duties, Jay chaired New York’s Committee for Detecting and Defeating Conspiracies, and directed agents to expose Loyalist schemes, which included a plot to assassinate General George Washington. He also joined secret talks in Paris in 1782, securing terms in the (appropriately named) Treaty of Paris that formally ended the Revolutionary War.

In 1789, George Washington appointed Jay as the first chief justice. At the time this was a rather sleepy job: the nascent court decided just four cases in six years. Having relatively little to do, Jay was able to continue his diplomatic duties, including acting as secretary of foreign affairs and negotiating the 1794 “Jay Treaty” with Britain (which dealt with unresolved issues following American independence). As for Jay’s actual court duties, perhaps his most famous decision was in Chisholm v. Georgia, written in 1793, in which the court declared that sovereignty rested with the people as a unified nation, not individual states, thus allowing citizens to sue states in federal court. (This ruling prompted ratification of the Eleventh Amendment limiting suits against states.)

In 1795, Jay resigned from the court to serve as New York’s governor, where he signed a 1799 act for the gradual abolition of slavery in the state. And although in 1800 President John Adams offered to appoint him again as chief justice, Jay turned it down, stating the court lacked the “energy, weight, and dignity” essential for public respect (or at least the respect that John Jay deserved). 

John Rutledge

The story of John Rutledge, the nation’s second chief justice, is a rather depressing one. But it didn’t start out that way: Rutledge began his political career as a delegate to the Stamp Act Congress, railing against Parliament’s taxes (oh, how they would rail in those days!). He then served as South Carolina’s first president and governor from 1776-1778 and 1779-1782, with broad emergency powers – he could effectively do anything but execute a citizen without trial. Rutledge also played a significant role in the nation’s founding as a delegate at the 1787 Constitutional Convention, where he chaired the Committee of Detail, producing the first complete draft of the U.S. Constitution (written as a report).

In 1789, President George Washington tapped Rutledge as one of the original associate justices. Rutledge did not hear a single Supreme Court case, however, and a year later he resigned after having to ride the grueling Southern Circuit. But Rutledge was not done with the court. When John Jay resigned as chief in 1795, Rutledge lobbied Washington for the top spot and was made chief during a congressional recess. Unfortunately, Rutledge almost immediately burned his bridges with a fiery speech disparaging the Jay Treaty with Britain as a “death warrant” for the nation, and that he’d “rather see [the president] dead than to see him sign [it].” When Congress reconvened, Federalist senators, already whispering of Rutledge’s financial woes and apparent depressive spells (likely exacerbated by his wife’s death in 1792), denied his nomination to serve as chief justice 14-10, the first rejection of a Supreme Court nominee in Senate history. In 1795, Rutledge tried to drown himself off a Charleston dock but was reportedly saved by two slaves who saw him in the water.

Oliver Ellsworth

Honestly, we did not remember this fellow was a chief justice when putting these bios together. And that irony is not lost on us, given that we entitled his closer look “The Rather Memorable Chief Justice Ellsworth.” While “memorable” may be false advertising in terms of his court tenure, the same cannot be said of his broader contribution to American politics. At the Constitutional Convention of 1787, when the convention couldn’t agree on how states should be represented in the new government, Ellsworth helped engineer the Great Compromise (also known as the Connecticut Compromise). As some likely remember from their high school American history classes, the deal established a bicameral legislature: a House with proportional representation (good for large states) and a Senate with two members per state (good for small states). Ellsworth was subsequently elected one of Connecticut’s first two senators. While in that role, he wrote the Judiciary Act of 1789 – which established the structure and jurisdiction of the federal court system and created the position of attorney general.

In March 1796, Washington nominated Ellsworth to be chief justice. Perhaps most notably, Ellsworth favored issuing per curiam opinions rather than the court’s practice of “seriatim” ones, where each justice wrote their own separate opinion. In 1799, President John Adams sent Ellsworth, while he was chief justice, to France as a diplomat to negotiate with Napoleon an end to the “Quasi-War,” an undeclared naval conflict between that country and the United States. He did so successfully. But while abroad, Ellsworth fell ill. Citing his poor health, he resigned from the Supreme Court in December 1800.

John Marshall

John Marshall was the only chief justice who we dedicated two closer looks to, and for good reason. Both his life before becoming chief and his time occupying the center seat were momentous. 

As the oldest of 15 children, Marshall was raised in rural Virginia in a two-room log cabin (because of course he was). In attending the local school he supposedly walked 60 miles by himself (because of course he did). At 19, Marshall left home to serve in the Virginia Continental regiment. After the war’s end, he joined the Virginia House of Delegates in 1782, supporting both ratification of the Constitution and stronger federal powers – positions that clashed with those of his second cousin once removed Thomas Jefferson, who strongly favored states’ rights.

Approximately seven months after assuming the office of Secretary of State in June 1800, Marshall was appointed chief justice by outgoing President John Adams. As chief, Marshall lost no time in making his mark: During the first session in which he presided over the court, he supposedly introduced the tradition of black judicial robes.

Marshall’s most famous case remains – for good reason – Marbury v. Madison, where in 1803 the court declared that part of the Judiciary Act of 1789 was unconstitutional and, in doing so, established the power of judicial review. But this was far from Marshall’s only notable decision. His opinion in 1819’s McCulloch v. Maryland helped establish the supremacy of federal law over state law by holding that Maryland could not tax the Second Bank of the United States and affirmed Congress’ implied powers under the necessary and proper clause. 

Beyond penning such landmark opinions (he participated in over 1,000 decisions and wrote more than 500), Marshall continued to host the justices for dinners in a D.C. boarding house – and would quip that the court’s vast jurisdiction surely included some rainy spot, justifying a drink.

Roger Taney

Roger Taney was a complicated man with a horrific legacy.

Prior to serving on the court, Taney was (like most of his predecessors) a talented lawyer and successful politician. Specifically, he served multiple terms in the Maryland House of Delegates as a member of the Federalist party and led a section of the Federalists that supported the War of 1812 against Britain. After moving to Baltimore, Taney was appointed the attorney general of Maryland in 1827 – and staunchly supported (and campaigned for) both President Andrew Jackson and the Democratic Party, leading Jackson to name Taney as U.S. attorney general in 1831. (For a short period of time, Taney simultaneously acted as Jackson’s secretary of war.) Taney, like Jackson, was a ferocious critic of the Second Bank of the United States – and after Jackson nominated him for treasury secretary in 1833, helped to cripple the institution, requiring that funds be withdrawn from the bank and thereby “sealing [its] fate.”

In 1836, Taney was nominated by Jackson as the court’s fifth chief justice. Today, Taney’s notoriety comes from his 1857 decision in Dred Scott v. Sandford, where he ruled that 1) Scott, an enslaved man who spent time in free territory, was not free; 2) Black Americans, whether enslaved or free, were not and could not be citizens; and 3) the Missouri Compromise – which banned slavery in certain territories – was unconstitutional. The decision intensified the abolition movement and aggravated tensions between the states and the federal government, culminating in the Civil War. The end of Taney’s career on the court was a contentious one (to put it mildly), in which he and Lincoln sparred over the president’s authority during the Civil War – with Taney’s efforts ending in defeat. 

Salmon P. Chase

Like some other chiefs, what Chase did before getting on the court was arguably more impressive than his tenure on the court. 

Believing from an early age that the Constitution was fundamentally anti-slavery, Chase led Ohio’s abolitionist Liberty Party – creating an antislavery coalition that would ultimately contribute to a U.S. Senate nomination in 1848, where Chase would serve one (six-year) term representing Ohio. Following this, he was elected as governor of the state in 1855. As governor, Chase supported anti-slavery actions, public education, prison reform, and women’s rights, and was reelected to the Senate in 1860 – but left his Senate seat after just two or three days to become secretary of the treasury, to which he was appointed by President Abraham Lincoln. Chase served as treasury secretary until 1864, when he resigned after a series of political and personal conflicts with Lincoln.

Lincoln didn’t take it too personally, and shortly thereafter, Chase was nominated by him to the position of chief justice following the death of Taney. As chief justice, Chase ruled in the 1868 case of Texas v. White that the “Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States” and the Southern states had therefore never departed from the Union. But Chase’s heart was not really in the center seat: In 1868, Chase attempted and failed in a presidential bid, and was defeated again in 1872 on a second run. Chase also presided over the 1868 impeachment trial of President Andrew Johnson (he was acquitted by one vote).

Chase’s face still appears on the $10,000 bill, although one may cost you upwards of $480,000.

Morrison Waite

Morrison Waite had at least two things going for him: impressive facial hair – and a great nickname (“Mott”). Less spectacular was his early political career, which consisted of two unsuccessful runs for the U.S. House of Representatives, in 1846 and 1862. Then, in 1871, President Ulysses S. Grant appointed Waite to an international commission in Geneva tasked with settling U.S. claims against Britain from the Civil War. Apparently impressed by the results, Grant appointed Waite as chief justice – although only after several others passed.

The Waite court made its mark enhancing national economic authority (in general, its decisions on economic regulation supported federal commerce powers), and narrowly interpreting the Reconstruction Amendments, prioritizing state sovereignty over federal power. Also of note: in 1888, it upheld Alexander Graham Bell’s telephone patents in what are known as the Telephone Cases.

Despite having a breakdown in 1885 from overwork and the court’s massive backlog (Waite appealed publicly for relief for the public against the “tedious and oppressive delays” of federal justice in 1887), he refused retirement. He died three years later.

Melville Fuller

Although today relatively unknown, Melville Fuller presided over some of the most important cases in the history of the Supreme Court. (He also instituted the practice of having the justices shake hands before private conferences and before taking the bench.)

Fuller passed the bar after a brief stint (six months) at Harvard Law School, and then moved west to manage Stephen Douglas’ 1860 presidential campaign. Fuller also served in the Illinois House of Representatives for two years, was elected president of the state bar association, and was a delegate to the Illinois constitutional convention of 1862. (His Illinois House colleagues reportedly were left unhappy when Fuller publicly opposed their gold pens as a waste of public spending.)

President Grover Cleveland nominated Fuller to be chief justice in April 1888. The Senate took three months to confirm him, with concerns over his perceived favoritism towards corporations and questionable loyalty to the Union. Two other rather unusual topics came up during Fuller’s confirmation: his facial hair (Fuller sported quite a mustache), and his penchant for poetry. According to the Journal of Supreme Court History: “articles asserted that Fuller was a mediocre amateur poet and, as such, was not fit to sit on the high Bench.” Despite these apparent lapses, Fuller was confirmed, and took his judicial oath in October 1888.

Some of Fuller’s better-known cases include the controversial Lochner v. New York (which struck down – on the basis of substantive due process – New York’s law making it illegal for bakers to work over a certain number of hours) and United States v. E.C. Knight Co., which limited – under the interstate commerce clause – the scope of the Sherman Antitrust Act that Congress passed to break up unfair monopolies. But by far the most notorious case of the Fuller court came in 1896 with Plessy v. Ferguson, which held that state-mandated segregation laws were not unconstitutional so long as the separate accommodations were “equal” for the “white and colored races,” and which was not reversed until Brown v. Board of Education almost 60 years later. Fuller joined in the majority decision.

Fuller served on the court for approximately 22 years, and died in office from heart disease in July 1910.

Edward Douglass White

The first associate justice to be elevated to chief justice, White has the distinction of being nominated by two separate presidents: Grover Cleveland (as an associate justice) and William Howard Taft (as chief).

When the Civil War broke out, the future chief justice, then 15 years old and born and raised in southern Louisiana, joined the Confederate Army. He was captured twice, and imprisoned in New Orleans – where he would remain for about a month until Robert E. Lee surrendered at Appomattox on April 9, 1865. Thereafter, White began practicing law, briefly served in the Louisiana state senate, and was appointed to the Louisiana Supreme Court in 1878 (though was kicked out shortly after his appointment for not meeting the minimum age requirement of 35 – he was 33). Ten years later, White was chosen by the state legislature to represent Louisiana in the U.S. Senate, partly due to his role in abolishing the corrupt Louisiana Lottery, which had been granted a charter in 1868 based on supposed bribes to state legislatures.

White’s best-known cases include those on race and civil rights. He authored the ruling in Guinn v. United States that rejected certain “grandfather clauses,” which allowed those whose grandfathers had been able to vote before the 15th amendment was ratified to register to vote without first passing a literacy test. As with his predecessor, however, White joined the majority in Plessy v. Ferguson. His court also restrained war-related speech (holding that under Debs, Schenck, and Abrams, speech or activities interfering with the war could be criminalized), and the “Insular Cases,” which held that only some Bill of Rights protections apply within the U.S. territories and remain in effect to this day.

William Howard Taft

It’s hard to easily encapsulate the larger-than-life story of William Howard Taft. The 10th chief justice was born in Cincinnati in 1857, the son of a former secretary of war and U.S. attorney general under Grant. Following a resoundingly successful legal and political career, in 1904 Taft agreed to become Roosevelt’s secretary of war, and in 1908 defeated the Democratic candidate, William Jennings Bryan, to become president. Taft served one term, in which the public regarded him as a “large, genial” fellow. (After being on the court for a few years, he remarked, “I don’t remember that I ever was President.”).

After Republican President Warren Harding won the 1920 election, Harding nominated him to the chief justiceship in 1921 – which Taft gladly accepted. Taft’s most recognized legal contributions to the court include rulings restricting Congress’ power, such as through Bailey v. Drexel Furniture Co. in 1922, which voided a federal law taxing products made with child labor. In the same year, Taft ruled in Stafford v. Wallace that the federal government can regulate certain activities through the commerce clause to prevent unfair competition. And then there is his 1926 decision in Myers v. United States, which supported the president’s power to remove “administrative officers” – an issue at the heart of several cases this very term.

But perhaps Taft’s greatest impact as chief justice was in the realm of judicial administration, which has earned him the designation as “father of the modern U.S. Supreme Court.” Among other things, Taft established the court’s practice of controlling its own caseload, reorganized the structure of the lower courts, and oversaw the construction of the Supreme Court Building – telling architects to create something “of dignity and importance” (before this, the court was confined to a small space in the U.S. Capitol).

Taft was the first former president, and the first Supreme Court justice, to be interred at Arlington National Cemetery, and remains the only justice to have a state funeral.

Charles Evans Hughes

As Justice Robert Jackson once put it, “Hughes looked like God and talked like God.” But he was very human.

After several years in private practice, Hughes forged a public career in the early 1900s after leading a pair of high-profile investigations – one into abuses in New York’s public utilities industry, and the other in the life insurance business. Garnering the support of President Theodore Roosevelt, Hughes ran for governor of New York and was elected in 1906. In 1910, President Taft nominated Hughes to the court, “in part to remove a likely challenger from the 1912 presidential election.” If Taft thought he had politically neutralized Hughes, however, he was wrong: Hughes ran for president in 1916, reportedly wanting to dispel the notion that he was a man “who placed his own comfort and preference for the life of a judge above his duty to the nation.” In this, Hughes became the first (and to date, only) sitting justice to be nominated for the presidency by a major party – though he resigned from the court after being nominated. After running a seemingly successful campaign, Hughes went to sleep on election night after being told by his advisers that he had won – only to lose California by a few thousand votes, which swung the Electoral College for Woodrow Wilson.

In 1930, Hughes was nominated as chief justice by President Herbert Hoover to fill the seat vacated by Taft. Perhaps the greatest test of Hughes’ tenure came in 1937, when he navigated President Franklin Roosevelt’s “court packing plan” to increase the number of justices on the court so as to fill it with sympathetic justices. During this, Hughes worked with Sen. Burton Wheeler of Montana, a Democrat who agreed to lead the opposition to the court-packing bill – and with the approval of both liberal Justice Louis Brandeis and conservative Justice Willis Van Devanter, Hughes sent a letter to the Senate Judiciary Committee countering the president’s argument that the court needed to be made larger because of the slow pace of its decision-making (“calmly point[ing] out that the Court was keeping up with its work”). The plan was killed in the Senate that July, and FDR grudgingly remarked that Hughes was the best politician in the nation.

Harlan Fiske Stone

Stone’s classmates predicted that he would “proceed to be the most famous man” of their 1894 class – and they were (probably?) right. 

Born on a farm in Chesterfield, New Hampshire, in 1872, Stone grew up in Amherst, Massachusetts, and graduated from Amherst College in 1894, where he played football alongside his fellow student (and future President) Calvin Coolidge (it’s good to have friends who go on to high places). After law school, Stone divided his time between private practice and academia, eventually becoming dean of Columbia Law School in 1910, where he remained for 13 years until Coolidge appointed him attorney general in 1924 and nominated him to the court the following year.

On the bench, Stone aligned himself with the liberal wing anchored by Justices Louis Brandeis and Benjamin Cardozo, and the three came to be labeled the “Three Musketeers.” In particular, Stone was known for his willingness to dissent alone when he believed the court had gone astray. In 1940, for example, he was the sole dissenter in Minersville School District v. Gobitis, which held that public schools’ mandatory flag salute did not violate the First and 14th Amendments. (Three years later, the court sided with Stone and overturned Gobitis 6-3 in West Virginia Board of Education v. Barnette.)

Yet Stone’s most enduring contribution may have come in 1938 in “[t]he footnote that broke constitutional law.” In United States v. Carolene Products Co., a case about a ban on “filled milk,” Stone added what would become the famous footnote four: a suggestion, as explained by SCOTUSblog recurring columnist Anastasia Boden, that “laws should be presumed constitutional unless they interfered with ‘the corrective political processes which can ordinarily be expected to bring about repeal of undesirable legislation.’” This would come to take on a life of its own as a general standard for evaluating a measure’s constitutionality.

After several years on the court, Stone was appointed chief justice in 1941 by Roosevelt to succeed Hughes. The role of chief proved harder to manage than his years as an associate justice, however, as Stone struggled to contain rivalries among his strong-willed colleagues. In April 1946, Stone suffered a cerebral hemorrhage while presiding over a session of the Supreme Court and died a few hours later at the age of 73.

Fred M. Vinson

Very few Americans have held prominent positions in all three branches of the federal government. The 13th chief justice was one of them.

Frederick Moore Vinson was born in 1890 in Louisa, Kentucky, a small town near the border of West Virginia and Kentucky, to a southern family of “reduced circumstances.” While on the campaign trail a few decades later, Vinson would joke that he was “born in jail” – which was not entirely untrue, given his father worked as the county jailer and the family lived in front of it.

In a special January 1924 election, Vinson was elected to Congress as a Democrat. In Congress, he was known as an expert on fiscal policy and became a reliable ally of the New Deal. In 1938, Roosevelt appointed Vinson to the U.S. Court of Appeals for the District of Columbia Circuit. But the country’s involvement in World War II led Vinson to move to the executive branch; in 1943, Vinson became director of the office of economic stabilization, where he helped oversee the wartime American economy and control inflation.

On June 6, 1946, Truman nominated Vinson to the center seat. Vinson preferred a restrained judiciary, encouraging the court to defer to the executive branch when evaluating its actions, whether in matters of free speech (of which he was partly successful) or the president’ seizure of steel mills during the Korean War (of which he completely failed). Nor was Vinson able to tame a fractured court: although he was in the majority a staggering 97% of the time in one term, only around 30% of his court’s decisions proved unanimous (during the Roberts era, that figure is around 42%).

Vinson’s more enduring legacy, however, lies in the realm of civil rights. In 1948’s Shelley v. Kraemer, for example, Vinson held that enforcement of “racially restrictive [housing] covenants” violated the equal protection clause. Two years later, in Sweatt v. Painter, Vinson wrote for a unanimous court that a qualified Black law school applicant could not be constitutionally denied admission to the University of Texas Law School under the “separate, but equal” doctrine. And although Vinson heard Brown v. Board of Education, he never got to decide it – just before Brown was scheduled for reargument, the chief justice died of a heart attack at the age of 63.

Earl Warren

Unlike some of the other fellows on this list, Earl Warren is a man who needs no introduction.

After earning his law degree from UC Berkeley in 1914, Warren spent virtually his entire career in public office, first as Alameda County’s district attorney – where in 13 years he apparently never had a conviction overturned by a higher court – and then as California’s attorney general. Warren’s record as attorney general is marred by his advocacy of the forced internment of over 100,000 persons of Japanese descent during World War II. (In his memoirs, Warren said that he had “since deeply regretted the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens.”)

Warren was elected California governor for three consecutive terms, and in 1948 joined Thomas Dewey on the Republican presidential ticket as its vice-presidential nominee (but only after turning down Dewey twice). That turned out to be the only time Warren lost in an election.

When Chief Justice Vinson died suddenly in September 1953, President Dwight D. Eisenhower, honoring a promise to Warren that he would make him his first appointment to the Supreme Court (Warren had campaigned for Eisenhower in the general election despite initially running as a potential candidate), named Warren as chief justice.

From the get-go, Warren was able to forge relative solidarity on the court by pragmatically appealing to the different justices. Indeed, in his very first term, Warren authored the unanimous opinion in Brown v. Board of Education, declaring racially segregated public schools inherently unequal under the 14th Amendment and overturning the “separate but equal” doctrine that had prevailed since Plessy v. Ferguson in 1896.

Warren also participated in, or wrote, several other rulings which dramatically altered the legal and political landscape. In 1964’s Reynolds v. Sims, Warren established the “one person, one vote” principle, holding that representation in state legislatures must be apportioned equally on the basis of population – a ruling Warren said was his most important contribution to American law. In the criminal realm, Miranda v. Arizona required police to advise suspects of their rights before questioning – a ruling shaped in part by Warren’s “close association” with August Vollmer, the Berkeley chief of police and an early advocate for interrogation reform. Loving v. Virginia struck down bans on interracial marriage, and Gideon v. Wainwright guaranteed the right to counsel for all criminal defendants. And on First Amendment grounds, the Warren court produced New York Times Co. v. Sullivan and Brandenburg v. Ohio – which, respectively, held that a public official can only recover damages in a civil defamation suit if the statement was made with “actual malice,” and determined that a state cannot prohibit speech unless the advocacy is “directed at inciting or producing imminent lawless action” and is “likely to produce such action.”

Warren is buried at Arlington National Cemetery and was posthumously awarded the Presidential Medal of Freedom in 1981. Although no fan of the Warren Court, even President Richard Nixon said on the night of Warren’s death that “America has lost one of her finest public servants.”

Warren E. Burger

The first thing to note is that the next chief shared both a first and middle name with his predecessor – which should be illegal.

In any event, the 15th chief justice was born in 1907 in St. Paul, Minnesota to a working-class family. To get through night school at the University of Minnesota, Burger sold insurance. Actively involved in Republican politics, one of Burger’s most consequential political acts came at the 1952 GOP convention, where he helped deliver the state’s votes to Eisenhower. The following year, he was appointed by Ike as assistant attorney general and, in 1955, to a seat on the U.S. Court of Appeals for the D.C. Circuit. As a judge, Burger became known as promoting “law-and-order” principles amicable to the Nixon administration.

On May 21, 1969, Nixon nominated Burger to replace the retiring Warren. Although Nixon expected Burger to serve as a “conservative constructionist,” the chief justice proved a bit more complicated. As some note, the Burger court did move the nation to the right (as compared to the Warren court) – but it also expanded protections for privacy and sex equality. Perhaps most prominently, Burger himself voted with the majority in Roe v. Wade in 1973 (indeed, three of Nixon’s four appointees joined the 7-2 ruling).

Justice Sandra Day O’Connor once singled Burger out alongside Taft as one of the chief justices who “really deeply cared about judicial administration.” This led to some significant changes under his tenure – among other things, Burger discouraged justices from reading their full opinions or “lengthy summaries” aloud from the bench (estimating the practice wasted 300 hours of their time each year), cut the time allotted for oral arguments in half (from two hours to one), changed the physical bench to a U-shape (which reduced interruptions during oral argument), and began distributing written opinion summaries alongside decisions. Burger was not Mr. Popular among his colleagues, however, who could find him “manipulative and aloof,” doing such things as miscounting his own conference votes to control opinion assignments.

Burger retired in 1986, after 17 years on the court, to chair the Commission on the Bicentennial of the United States Constitution, which took up so much of his time that his wife reportedly asked whether he could get his old job back. He died on June 25, 1995, at 87, of heart failure, and (like his predecessor) is buried at Arlington National Cemetery.

William Rehnquist

When Rehnquist's elementary school teacher asked him what he wanted to do when he was older, the future chief justice supposedly replied: “I'm going to change the government.” He most certainly did.

After high school, Rehnquist served as a weather observer in North Africa during World War II and then attended Stanford under the GI Bill, where he graduated in 1948 with bachelor's and master's degrees in political science. Rehnquist then received a master's degree in government from Harvard in 1950, after which he returned to Stanford and graduated first in his law school class in 1952 – just two places ahead of his classmate Sandra Day O’Connor, who would later join him on the court (and who Rehnquist had once dated and proposed to).

Rehnquist’s heavy involvement in Republican politics eventually brought him to the Nixon administration’s Justice Department in 1969 as assistant attorney general. Nixon, who called him “Renchberg” in the Watergate tapes, nominated Rehnquist to the court as an associate justice in 1971, and the Senate confirmed him 68–26.

On the court, Rehnquist relied on three “related constitutional ideas”: “strict construction” of the Constitution’s text, judicial deference to Congress on questions of policy, and a robust defense of states’ rights. Those convictions put him at great odds with most of his colleagues – in his first five terms he wrote 24 solo dissents (among 72 total), which earned him the nickname “the Lone Ranger.” (By 1975, a more conservative court allowed Rehnquist to write an increasing number of majority opinions.)

When Burger retired and President Ronald Reagan nominated Rehnquist as Burger’s successor in 1986, the confirmation fight was contentious. In particular, critics raised a memo Rehnquist had written as a law clerk to Justice Robert Jackson urging that Plessy v. Ferguson’s “separate but equal” doctrine not be overturned in Brown v. Board of Education, and pointed to racially restrictive covenants in the deeds to his homes. The Senate nevertheless confirmed him 65–33, and he was sworn in on the same day Antonin Scalia was unanimously confirmed to fill Rehnquist’s vacated associate justice seat.

Despite having once been a lone ranger, Rehnquist presided over an increasing rate of unanimous cases. In terms of major decisions, Rehnquist is perhaps most remembered for his efforts to limit Congress’ power – the chief justice wrote the majority opinion striking down the Gun-Free School Zones Act and applied the same logic five years later in United States v. Morrison to invalidate a provision of the Violence Against Women Act. Rehnquist also joined the court’s per curiam decision in Bush v. Gore, stopping Florida’s recount in a 5-4 decision that effectively allowed the election to be certified for George W. Bush.

According to his colleagues (who proved significantly more complimentary toward him than Burger), Rehnquist “steered the Court along a path of responsibility and careful analysis throughout his 19 years as Chief Justice … and he was able to secure the cooperation and admiration of all of the Justices for the years in which he served” (Sandra Day O’Connor), “was a good man who epitomized fairness, dignity, and strength of character” (Clarence Thomas), and “was the fairest, most efficient boss I have ever had” (Ruth Bader Ginsburg).

John Roberts

And then there is the current chief.

Born in January 1955 in Buffalo, New York, Roberts attended La Lumiere School, a Catholic boarding school in La Porte, Indiana, in which he captained the football team, wrestled, and graduated first in his class. Roberts then attended Harvard College as a history major, and went on to Harvard Law School.

After a clerkship for then-Justice Rehnquist, Roberts spent two stints at the Reagan White House, first as Special Assistant to the Attorney General and then as Associate Counsel to President Ronald Reagan, before entering private practice at the law firm Hogan & Hartson. Roberts left Hogan to serve as Principal Deputy Solicitor General under Ken Starr from 1989 to 1993, becoming, by Starr’s account, “my very closest, most trusted adviser.” Returning to Hogan in 1993, Roberts argued 39 cases before the Supreme Court, winning 25 of them.

After serving on the U.S. Court of Appeals for the District of Columbia Circuit for several years, Bush nominated Roberts to the Supreme Court in July 2005, initially to fill the vacancy of retiring Justice Sandra Day O’Connor. When Rehnquist, who was by then chief justice, died on Sept. 3, 2005, Bush withdrew that nomination and re-nominated Roberts to the center chair.

On the bench, Roberts has authored more than his share of significant opinions – to put it mildly. But here are a few. In 2012, Roberts wrote the majority opinion in National Federation of Independent Business v. Sebelius, which upheld the Affordable Care Act by finding the individual mandate to be unconstitutional under the commerce clause, but valid as a tax. In 2013, Roberts’ majority opinion in Shelby County v. Holder struck down the Voting Rights Act’s pre-existing coverage formula. In 2023, Roberts wrote the 6-2 opinion in Students for Fair Admissions v. Harvard, which held that race-conscious admissions at colleges and universities violated the equal protection clause of the 14th Amendment. In 2024, Roberts authored, for a 6-3 majority, Loper Bright Enterprises v. Raimondo, overturning the 40-year old Chevron doctrine, which had courts defer to federal agencies’ interpretations of ambiguous statutes. And later that year, in Trump v. United States, Roberts wrote for a 6-3 court holding that former presidents receive absolute immunity from prosecution for acts within their core constitutional powers and “presumptive immunity” for other official acts. And most recently, Roberts authored Learning Resources v. Trump, which struck down President Donald Trump’s tariffs in a 6-3 decision. (Roberts also wrote a concurrence in Dobbs v. Jackson Women’s Health Organization, in which he would have declined to overrule Roe v. Wade, and penned the lead dissent in Obergefell v. Hodges, in which the court recognized a constitutional right to same-sex marriage.)

Last term, Roberts was in the majority in 95% of all cases – the most of any justice – and did not write a single separate opinion. And although Roberts typically speaks through his opinions, he has been somewhat outspoken (by his own standards, at least) in defending judicial independence. After Trump called a judge an “Obama judge” in 2018, for example, Roberts issued a written statement noting that “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Roberts also presided over Trump's first impeachment trial in 2020 – making him, like Chief Justice Salmon P. Chase and Rehnquist before him, one of only three chief justices in history to perform that duty. And, no doubt to Roberts’ chagrin, there has been no shortage of drama during his tenure, from the Dobbs leak to recent tension between the justices themselves – all during a time where the public is largely skeptical of how the court is fulfilling its duties.

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