Generally, the justices have refrained from explicitly commenting on politics. That custom, however, is more a matter of practice and institutional norms than a hard-and-fast rule, and over more than two centuries, justices have at times set it aside while sitting on the bench.

As the current court continues to generate criticism from both sides of the aisle, it seemed relevant to take a deep dive into the (somewhat) rare occasions when justices have openly – and often controversially – done so.

Politics from the bench

In the court’s earliest years, the judicial and political roles were hard to separate – in ways that might shock those who currently accuse the court of partisanship. Besides often being heavily invested in political causes (e.g., campaigning on behalf of elected officials or seeking elected office themselves), the early justices often used addresses to grand juries while circuit riding as occasions for commentary beyond the strictly legal. At that time, such bodies were not simply assembled to decide whether to indict individuals. Instead, the responsible circuit justice would address the grand jurors at the start of each court term, “laying out their duty and the manner in which it was to be performed,” and “lectur[ing] on the role of government, on the implications of the new Constitutional system, and on the jury’s role and responsibility within that system.” Many of these charges were later printed in newspapers and reached a wider audience. In this way, the justices acted as “republican schoolmasters” who saw their role as to “instill a sense of civic virtue in the populace.”

The first chief justice, John Jay, did just that while riding circuit. In May 1790, Jay addressed several grand juries on the (then) “Eastern circuit,” openly contemplating political ideas discussed in the Federalist Papers, such as if men are capable of self-government. Jay was also political in a more explicit sense – he advised President George Washington in both politics and law, and while on the court, negotiated the “Jay Treaty” between the United States and Britain – which helped avert war between the two countries.

But perhaps no early justice tested the limits as far as Justice Samuel Chase. A Federalist who had campaigned for President John Adams in 1800, Chase delivered an 1803 charge to a Baltimore grand jury that criticized Republicans and the Jefferson-aligned Congress for repealing the Judiciary Act of 1801. This repeal, which, among other things, removed 16 circuit judges (most appointed by Adams), meant, according to him, that “the independence of the national judiciary” would be shaken to its foundation. Following this, Chase assailed a new Maryland provision broadening the vote to include individuals without property, saying that it would turn the U.S. into “a mobocracy.”

These overtly political remarks led in part to Chase’s impeachment by the House (specifically, the articles called out his activities as “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan”) and President Thomas Jefferson himself encouraged Chase’s impeachment in a letter to a House member, referencing “the extraordinary charge of Chace [sic] to the grand jury at Baltimore” and asking “ought this seditious & official attack on the principles of our constitution, and on the proceedings of a state, [] go unpunished?”

The Senate ultimately acquitted Chase in 1805, and no justice has been impeached since.

Then there was Chief Justice John Marshall, who – even while serving as chief justice – remained heavily involved in Federalist politics. Perhaps most remarkably, Marshall held two offices simultaneously after being sworn in as chief, as he continued acting as secretary of state for the final month of the Adams administration. Legal scholars today have noted the conflict of this “double duty,” which was not limited to Marshall (Jay and Chief Justice Oliver Ellsworth served in similar roles). In fact, the case that made Marshall’s legacy, Marbury v. Madison, arose directly from commissions he had failed to deliver in his capacity as secretary of state.

Marshall’s off-bench advocacy didn’t end with the Adams administration, however. After his ruling in 1819’s McCulloch v. Maryland that recognized Congress’ ability to create the Second Bank of the United States pursuant to the necessary and proper clause of the Constitution drew criticism from certain corners, Marshall published a series of nine essays in the Alexandria Gazette under the pen name “A Friend of the Constitution” defending his own opinion. Legal scholars have also debated if Marshall’s conduct there was appropriate.

Mid-19th century

In 1829, President Andrew Jackson nominated John McLean for the Supreme Court, who took his seat the day after. During his time as a justice, McLean had a goal in mind other than serving on the court: to become president. Indeed, as Adams once remarked, McLean “thinks of nothing but the Presidency by day and dreams of nothing else by night.”

In 1848, McLean was talked about as a candidate for the anti-slavery Free Soil Party, but he demurred after Martin Van Buren took the lead for the nomination. Nevertheless, in a withdrawal letter that ran in several newspapers, McLean endorsed the party’s defining position of keeping slavery out of the land the United States had won from Mexico. This was not unusual for McLean, who was more than willing to take on the nation’s most difficult issues: He also voiced his strong objections to the annexation of Texas and to the war with Mexico (as, famously, did Abraham Lincoln). This was not met without opposition, as Mississippi Sen. Henry Foote complained that “the conduct of McLean, as a political letter-writer, is unworthy of the bench, discreditable to the country, and wholly indefensible.” Others accused him of “electioneering from the bench” given antislavery remarks contained within some of his court opinions.

Justice Levi Woodbury, who was on the court with McLean, made a presidential run of his own to serve as the nominee for the Democratic Party. Woodbury was reportedly known as a “loyal Jackson man … [who] saw [his] judicial and political positions as interchangeable.” The year before the 1848 Democratic convention, he held for a unanimous court in Jones v. Van Zandt that (1) the Fugitive Slave Act was valid under the Constitution as an exercise of congressional power and (2) that slavery’s protections were baked into the Constitution’s original compromises. The decision “gave him southern support,” though not enough to secure him a victory over Sen. Lewis Cass, who then went on to lose to Zachary Taylor.

The most widely read jurist in America

Near the start of the 20th century, Justice David J. Brewer treated the lecture hall as his second vocation. Justice Oliver Wendell Holmes Jr., who professed personal fondness for Brewer, frequently poked fun at his “itch for public speaking.” Nevertheless, by one historian’s account, all that speaking made Brewer “probably the most widely read jurist in the United States at the turn of the twentieth century.”

And Brewer did not shy away from politics at the podium. His most insistent cause was peace; he spoke against the country’s drift toward empire abroad, against military buildups, and against war in general. He also took aim at the Progressive movement and at President Theodore Roosevelt in particular, criticizing Roosevelt’s imperialism (specifically, the Monroe Doctrine) and accusing him of playing “hide and seek” with the idea of running for a third term as president. Brewer also said New York Governor Charles Evans Hughes (who would eventually take his place on the court) – was a better politician than Roosevelt. The justice’s constant readiness to speak his mind in public reportedly unsettled some of his colleagues, including Holmes.

Which brings us to Hughes. Hughes, who had served as governor of New York, was initially nominated to the court in 1910 by President William Howard Taft, “in part to remove a likely challenger from the 1912 presidential election.” This didn’t quite work: Six years after his Senate confirmation, Hughes ran for president again, becoming the only sitting justice to be nominated for the presidency by a major party. He resigned from the court after being nominated and subsequently lost to Woodrow Wilson. In 1930, after serving as secretary of state, Hughes was picked as chief justice by President Herbert Hoover to fill the seat vacated by Taft and was swiftly confirmed. From there, perhaps his most notable political maneuver was to successfully speak out against President Franklin Roosevelt’s court packing plan, leading the president to grudgingly remark that Hughes was the best politician in the nation.

A first for radio

In 1937, there was no shortage of drama in politics or on the court. Hugo Black, a New Deal Democrat from Alabama who as a senator had been a vocal supporter of Roosevelt’s plan to enlarge the institution, was confirmed that August by a vote of 63 to 16. Soon after, Pittsburgh Post-Gazette reporter Ray Sprigle won a Pulitzer Prize for exposing Black’s membership in the Ku Klux Klan in the 1920s, and editorial boards and politicians demanded that he step down.

Black publicly responded on October 1, 1937, with an 11-minute address made available across the U.S. via radio — by the Hugo Black archive’s account, the first such broadcast any justice had ever made. He admitted the charge (“I did join the Klan”) but maintained that he had resigned years earlier, kept no ties to the group, and held no racial or religious prejudice. The Post-Gazette put the audience at roughly 50 million, second, it said, only to the radio audience for King Edward VIII’s abdication in 1936. The address did its work: Polling showed Americans who wanted Black to resign dropped from 59 to 44 percent. Black took his seat on October 4, 1937, and proved to one of the court’s most ardent defenders of civil rights for Black Americans.

A justice takes on the bicentennial

In 1987, with the country gearing up to celebrate the Constitution’s 200th anniversary under a commission led by the recently retired Chief Justice Warren Burger, Justice Thurgood Marshall declined to join in. Speaking on May 6 to a lawyers’ group in Hawaii, Marshall remarked that the Framers’ judgment did not strike him as especially wise and described the document they wrote as “defective from the start“ – being, in his view, a charter that had protected slavery, shut women out of the vote, and that took a civil war and a series of amendments to set right.

The Maui speech drew front-page coverage (The Washington Post headline read “MARSHALL BLASTS CELEBRATION OF CONSTITUTION BICENTENNIAL”) and a conservative backlash, with one legal group going so far as to call for his resignation on the theory that Marshalls’ words “reflect[ed] a deep-seated bitterness and dislike that impair his capacity.” Others criticized Marhsall for misreading the Founding and defended the Constitution’s Framers, which was responded to at length in many a law review article. To be fair, the response was not all critical, and some received the speech well. For his part, Marshall did not address the critics and reprinted his address in several law journals.

Calling a candidate a ‘faker’

A more recent moment of a justice entering the political fray occurred when Justice Ruth Bader Ginsburg – in a string of interviews with The Associated Press, The New York Times, and CNN – went after the Republican presidential nominee, Donald Trump, in July of 2016, calling him “a faker,” pressed the point that he had not released his tax returns, said she could not picture the country with him as president, and quipped that her late husband would have judged it time to decamp for New Zealand. As NPR’s Nina Totenberg reported, no modern justice she knew of had ever “publicly criticize[d] a presidential candidate.”

The New York Times editorial board told Ginsburg to give up the political commentary, while Sen. Mitch McConnell called the comments inappropriate and Chuck Grassley said she should stay out of it. Trump did not remain silent, tweeting that her “mind is shot” and demanding that she resign. Ginsburg put out a statement describing her remarks as “ill-advised” and conceded that judges ought not to comment on candidates for office.

Arguing about whether the court is political

More recently, several justices have weighed in publicly on the question of whether the court is political – a subject that is arguably, in and of itself, political. In 2018, Trump dismissed an adverse ruling which held the administration could not deny asylum to individuals who crossed the border illegally as the work of an “Obama judge.” Chief Justice John Roberts pushed back, saying that “we do not have Obama judges or Trump judges.” Trump replied in a tweet: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” (As many media outlets, including SCOTUSblog, have reported, this has been far from Trump’s only criticisms about the Supreme Court and the justices – especially following its tariffs decision).

In 2021, speaking at a center named for McConnell, Justice Amy Coney Barrett insisted that the justices are not “a bunch of partisan hacks.” The same year, Justice Stephen Breyer published a book and embarked on a public tour arguing that the court is not a political body and warning against proposals to add seats to it. And in 2022, after the court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, Justice Elena Kagan said more than once that judges put their legitimacy at risk when they come across as “political or partisan.”

Last term, as well as this one, brought some additional reflections on politics from the justices. In July, Justice Ketanji Brown Jackson said that the state of American democracy is what keeps her up at night and that she is “not afraid to use [her] voice.” She called some of the court’s recent decisions an “existential threat to the rule of law” and warned that these risk making the court appear political. And in April 2026, in an address at the University of Texas that raised some eyebrows, Justice Clarence Thomas linked “progressivism” to Stalin, Hitler, Mussolini, and Mao, and said that the audience should find “the same level of courage that the signers of the Declaration had … It may mean speaking up in class tomorrow when everyone around you expects you to live by lies. It may mean confronting today’s fashionable bigotries such as anti-semitism … It may mean running for your school board when you see that they are teaching your children to hate your values and our country.”

The court and politics, still

Critics of the current court, from those troubled by Thomas’ remarks on progressivism to those skeptical of Jackson’s statement about existential threats to the rule of law, at times speak as though the current justices publicly wade into politics in a way that previous courts never approached. History very much suggests otherwise.

As noted at this article’s start, Robert Dahl wrote in 1957 that Americans are “not quite willing to accept” the court as a political institution and “not quite capable of denying it.” If anything, the preceding two centuries show that certain justices, at certain times, felt much the same way.

At the Court

On Thursday, the court released its opinions in four cases: Mullin v. Doe, Wolford v. Lopez, Mullin v. Al Otro Lado, and Monsanto v. Durnell.

• In Mullin v. Doe, the court held, by a vote of 6-3, that the Temporary Protected Status program bars courts from reviewing the Secretary of Homeland Security’s determinations on TPS designations. The decision means that the Trump administration can end removal protections for Syrian and Haitian nationals. Justice Samuel Alito wrote the majority opinion, and Justice Elena Kagan dissented, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
• In Wolford, the court held, also by a 6-3 vote, that Hawaii’s law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second and 14th Amendments. Alito wrote the majority opinion, and Kagan and Jackson wrote dissenting opinions. Jackson’s dissent was joined by Sotomayor.
• In Al Otro Lado, the court held, again by a vote of 6-3, that asylum seekers do not “arrive[] in the United States” for the purposes of being permitted to apply for asylum under the Immigration and Nationality Act until they physically cross the border in the U.S. Alito wrote the majority opinion, and Sotomayor wrote a dissenting opinion, joined by Kagan and Jackson. Jackson also wrote a dissenting opinion.
• In Monsanto, the court held, by a vote of 7-2, that the Federal Insecticide, Fungicide, and Rodenticide Act expressly preempts a state-law failure-to-warn claim because the claim would require Monsanto to add a cancer warning to its Roundup products’ label that the EPA does not require. Justice Brett Kavanaugh wrote the majority opinion, and Jackson wrote a dissent, joined by Justice Neil Gorsuch.

After Thursday’s opinion announcements, the justices met in a private conference to discuss cases and vote on petitions for review. The court will release orders from that conference on Monday at 9:30 a.m. EDT.

Later on Thursday, the court denied a request for a stay of execution from Dusty Ray Spencer, who was sentenced to death for murdering his wife, Karen Spencer. Hours later, he was executed in Florida.

The court has indicated that it will next release opinions on Monday at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30. There is expected to be at least one more opinion announcement day after Monday.

Morning Reads

White House calls immigration decisions a ‘tremendous win’

Aileen Graef, CNN

In a statement, “[t]he White House called the two immigration decisions handed down by the Supreme Court Thursday a ‘tremendous win’ for the Trump administration,” according to CNN. White House spokeswoman Abigail Jackson said the Temporary Protected Status program “was never intended to be a pathway to permanent status or legal residency” and that President Donald Trump “is committed to ‘restoring integrity to our immigration system,’” including by ending “‘egregious abuses to our asylum system.’”

Almost 7 in 10 say Supreme Court should keep birthright citizenship in place: Survey

Max Rego, The Hill

As the Supreme Court considers a challenge to President Donald Trump’s effort to end birthright citizenship, a new Quinnipiac University poll found that “69 percent of 1,165 self-identified registered voters believe the Supreme Court” should rule for the challengers and “keep birthright citizenship in place,” according to The Hill. “Ninety-five percent of Democrats and 69 percent of independents” held that view, while “a little over half of Republicans surveyed said the high court should side with the Trump administration.” The court’s birthright citizenship ruling could come as soon as Monday.

The Forgotten Founder

Anastasia Boden, The Dispatch

For The Dispatch, Anastasia Boden, who is a columnist for SCOTUSblog, reviewed a new book about “the unsungest of the unsung heroes” – James Wilson, “who helped design the architecture of American government” and then went on to serve on the Supreme Court, where he became “the first and only justice to be imprisoned while on the bench.” She praised the book – The Lost Founder by Jesse Wegman – for recovering this significant historical figure “from obscurity,” noting that “even many lawyers have little idea who” Wilson is. Wilson was “one of the clearest expositors of the radical American idea that government derives its just powers from the consent of the governed,” wrote Boden. “In an era when many Americans feel increasingly disconnected from their institutions, Wilson is a Founder worth remembering.”

The Ascension of Westside Mothers

Steve Vladeck, One First (paywalled)

In a post for his Substack, Steve Vladeck reflected on, among other things, the court’s Tuesday ruling in Landor v. Louisiana Department of Corrections and Public Safety, describing it as “a massively important holding with constitutional dimensions – one that reflects the culmination of a long-term conservative legal project to weaken” Congress’ powers under the spending clause. In Landor, he wrote, the majority endorsed a “previously fringe” idea “that statutes that Congress enacts under the Spending Clause are somehow of lesser force and status – and impose fewer obligations – than the laws it enacts under its other enumerated regulatory powers.” “The decision will bear not only on the ability of individuals to vindicate the federal rights Congress has conferred but on the capacity of Congress itself to provide for enforcement of the Spending Clause statutes it enacts going forward,” including in such areas as Medicaid, education, and nursing home regulations, Vladeck contended.

On Site

Opinion Analysis

Supreme Court strikes down Hawaii gun restriction

The Supreme Court on Thursday struck down a Hawaii law that makes it a crime for gun owners to bring their guns onto private property that is open to the public unless they have the property owner’s specific consent. By a vote of 6-3, the justices agreed with a group of Maui residents with concealed-carry permits that the law violates the Second Amendment.

Opinion Analysis

Court allows Trump administration to end removal protections for Syrian and Haitian nationals

On Thursday, the court cleared the way for the federal government to remove protections for citizens of Haiti and Syria under the Temporary Protected Status program, which allows foreign citizens to stay in the U.S. when the government believes it is not safe for them to return to their home. By a vote of 6-3, the justices paused lower-court rulings that barred the Trump administration from ending the TPS designations.

Opinion Analysis

Justices side with Trump administration in border dispute over asylum seekers

In Mullin v. Al Otro Lado, the court upheld the federal government’s policy of systematically turning back asylum seekers before they can reach the U.S.-Mexico border. By a vote of 6-3, the justices agreed with the Trump administration that the policy does not violate a federal law that permits noncitizens to apply for asylum when they “arrive[] in the United States,” because they don’t “arrive” until they cross the border.

Opinion Analysis

Court rules for Roundup maker in dispute over cancer warnings on pesticide labels

The court on Thursday sided with Monsanto in a high-stakes dispute over cancer warnings on pesticide labels. In an opinion by Justice Brett Kavanaugh, the court ruled, by a vote of 7-2, that state lawsuits aimed at holding the company liable for failing to warn consumers about the potential risks of Roundup exposure are barred by the federal law governing pesticide sales.

View from the Court

An unusual retort to a dissent from the bench

In his View from the Court column, Mark Walsh described what unfolded as the justices announced Thursday’s opinions. Of particular note was Justice Samuel Alito’s rare response to Justice Sonia Sotomayor’s 10-minute delivery of her oral dissent in Al Otro Lado. “There is much that I would have added to my bench statement had I known there would be a dissent read,” Alito said.

Relist Watch

Penultimate relists: papers, parents, and procedural puzzles

In his Relist Watch column, John Elwood examined six petitions for review that were considered by the justices for a second time during their private conference on Thursday, including three on Arizona voting laws, one on attorney’s fees, one on parents’ involvement in their children’s gender identity and transitioning, and one on access to a certificate of appealability in a habeas case.

A Closer Look

Coverage of Wolford v. Lopez

As noted above, the Supreme Court held in Wolford v. Lopez that a Hawaii gun law addressing private property that is open to the public violated the Second Amendment. The law in question was sometimes referred to as a “vampire rule,” because it required concealed-carry permit holders to receive express permission from property owners before entering with a gun. Although most media outlets, including SCOTUSblog, went with “strikes down” to describe what the court did to Hawaii’s law, its nickname created some interesting headline possibilities, as evidenced below.

The New York Times: Supreme Court Overturns Hawaii Gun Law

The Washington Post: Supreme Court strikes down Hawaii limits on carrying guns in public

Associated Press: Supreme Court strikes down Hawaii law requiring permission to carry guns in stores and hotels

USA Today: Supreme Court strikes down gun limits for stores, other public places

NBC News: Supreme Court strikes down Hawaii’s ‘vampire rule’ for gun owners

NPR: Supreme Court bars ‘vampire rules’ on gun ownership

Fox News: Supreme Court strikes down blue state’s ‘vampire rule’ in major win for gun rights

National Review: Supreme Court Drives a Stake Through Hawaii’s ‘Vampire Rule’

Washington Examiner: Supreme Court strikes down sweeping Hawaii gun law 6-3

Vox: The Supreme Court’s embarrassing new Second Amendment decision, explained

SCOTUS Quotes

“The Second Amendment has the same meaning in all parts of the United States. It cannot give way to ‘the spirit of Aloha’ in Hawaii, any more than it can yield to the spirit of the Big Apple … or the Windy City.”

— Justice Samuel Alito in Wolford v. Lopez (2026)

“Today’s decision makes one thing clear: The Court’s objective is protecting guns, not consistently preserving any principle of law.”

— Justice Ketanji Brown Jackson, dissenting in Wolford

But first, after being out of town and missing Tuesday’s session, I arrive at the court this morning and decide to check the cafeteria menu, in case a lengthy opinion release spills into the lunch hour. Today’s special is “Garlic Parmesan Wings.” Yesterday’s special of a “Hawaii Five-O Burger” – “Caramelized Onion, Griddled Pineapple Slice, Bacon, Lettuce, Tomato, Pepper Jack Cheese and Sriracha Aioli” – is a reminder that the big Hawaii gun case, Wolford v. Lopez, is among the 12 decisions we’re expecting in the next few days.

In the courtroom, it is a bit of a relief that the bar section is nearly empty; there will be no bar admissions today even though this is the last regularly scheduled court session of the term. (Tuesday was the first bonus day and there will be more.) The court abstains from that in-court procedure after the third week of June. This means there will be no delay between the moment opinions are done and when Marshal Gail Curley announces the next day for court. (Chief Justice John Roberts makes the announcement if this is the penultimate opinion day.)

In the justices’ guest box, Justice Brett Kavanaugh’s mother, Martha, is in attendance, as she is with some frequency.

The U.S. solicitor general’s office contingent is led by Principal Deputy Solicitor General Sarah Harris and several other top deputies and assistants. Solicitor General D. John Sauer is not here today.

When the justices take the bench, all are present, and Roberts announces that Kavanaugh has the opinion in Monsanto v. Durnell. He concisely summarizes the court’s holding that the Federal Insecticide, Fungicide, and Rodenticide Act expressly pre-empts a Missouri man’s state-law failure-to-warn claim that would require Monsanto to add a cancer warning to its glyphosate-based pesticide Roundup.

Kavanaugh notes that the Environmental Protection Agency’s view that glyphosate is not likely to cause cancer in humans is shared by regulators in Canada, Australia, Japan, and the European Union. My mind goes to the World Cup, as those three countries are vying to move on the knockout stage, while thankfully the EU is not confined to a single team.

Harris argued in support of Monsanto and seems pleased with this result. Kavanaugh announces the somewhat unusual lineup that includes a concurrence by Justice Clarence Thomas and a dissent by Justice Ketanji Brown Jackson, joined by Justice Neil Gorsuch.

The chief justice next announces that “Justice [Samuel] Alito has the opinion in three of our cases this morning.”

It’s not unheard of for a justice to have two majority opinions in one day. Three is a little more rare, but Alito has been behind his colleagues in completed opinions, which is not necessarily his fault but could be due to the concurring and dissenting justices.

Alito’s first serving is a Hawaii Five-O Burger: Wolford.

He is concise with a summary of the holding that Hawaii’s law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second and 14th Amendments.

He spends a few moments explaining why the decision has rejected Hawaii’s proffered historical analogues for justifying its gun regulation, with special attention to the state’s citation of an 1865 Louisiana law that generally barred the carrying of guns on premises or plantations of citizens. That law was enacted as part of the post-Civil War “Black Codes” aimed to perpetuate the subjugation of Blacks. Alito calls it “strange indeed” that Hawaii would rely on “this racist law.”

Alito announces a lineup that includes a concurrence by Justice Amy Coney Barrett, joined by Thomas and Gorsuch in part, and a dissent by Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, with a separate dissent by Justice Elena Kagan.

Alito moves right along to his second case, Mullin v. Al Otro Lado, which holds that an “alien” standing in Mexico does not “arrive” in the United States by attempting, and failing, to set foot in this country but only when he crosses the border. The Immigration and Nationality Act thus neither entitles such a person standing in Mexico to apply for asylum nor requires an immigration officer to inspect him.

This lineup includes a concurring opinion by Thomas, as well as a dissent by Sotomayor, joined by Kagan and Jackson, and a separate dissent by Jackson.

Alito pauses, and I am looking down jotting in my notebook ready for him to move on to his third case when another voice sounds from the bench.

Sotomayor, it quickly becomes clear, is delivering an oral dissent in this case, and she opens with something from page 29 of her 35-page opinion, the story of the M.S. St. Louis, the ship that left Nazi Germany in 1939 with some 900 Jewish refugees but was turned away in Cuba, Miami, and Canada before returning to Europe, where 250 of the refugees died in the Holocaust.

This led, after World War II, to a treaty and federal laws meant to avoid such a fate for asylum-seeking refugees. But under the practice at issue in this case, U.S. immigration officers “physically block” asylum seekers just outside ports of entry, Sotomayor says.

“Turn the ship back,” she states, hammering home her point.

She takes issue with the majority’s conception of “arrive,” saying it is perfectly logical to say you have arrived in Washington, D.C., when you have landed at “Reagan National Airport,” which is in Virginia. (She uses its “DCA” code in the opinion, but adds from the bench that “I always think I’m still in D.C.” while at that close-proximity airport.)

Sotomayor also discusses the federal “metering policy” that limited the number of arriving aliens who would be inspected at ports of entry and how it has led to makeshift camps on the Mexican side of the U.S. border and other “dire humanitarian conditions.”

As Sotomayor goes on for 10 minutes, longer than the total of Alito’s first two opinion summaries, he at times leans back in his chair and sips from his water cup. When she wraps up, he leans forward and we expect him to move on to his third opinion.

But first, he has a response.

“There is much that I would have added to my bench statement had I known there would be a dissent read,” he says. This causes heads to turn in the courtroom. He goes on with a short substantive retort to Sotomayor, paraphrasing his written opinion’s point that “the government’s policy merely delayed entry by some aliens as a way of improving a situation that both interfered with the proper conduct of inspection and created unsanitary, inhumane, and sometimes dangerous conditions at ports of entry.”

He tells the audience to read the opinion and says, “I will move on to the next case.”

There is some discussion afterwards in the press room, where those who listened to the audio piped into the Public Information Office caught some or all of Alito’s retort, about what he meant by “had I known there would be a dissent read.” It seems clear enough he knew when the justices took the bench that Sotomayor planned an oral dissent, because he expectantly paused at the end of his short summary. But what he seemed to mean was that he didn’t have much notice that she planned to dissent.

Indeed, while Alito favors short summaries, he does tend to respond to more of the dissent when he knows an oral dissent is coming. (He did this most recently in Louisiana v. Callais in late April, when he responded in some detail to Kagan’s oral dissent. But that was a “prebuttal” – he included his responses in his opinion summary, not speaking after her oral dissent.)

The closest historical analogue I can remember to today’s Alito retort came in Glossip v. Gross in 2015. In that case, in which the court rejected an Oklahoma death row inmate’s challenge to the state’s means of execution, Justice Stephen Breyer read from his dissent, joined by Justice Ruth Bader Ginsburg, that fundamentally called into question the constitutionality of the death penalty.

That prompted a short rebuttal from Justice Antonin Scalia, delivered from the bench (and in a concurrence in print that was, a bit strangely, more colorful than his bench statement).

Back to Alito and his third opinion of the day. He delivers a succinct summary of the court’s holding in another immigration case, Mullin v. Doe, which allows the Trump administration to end Temporary Protected Status for Syrian and Haitian nationals.

He essentially makes just one point from his 24-page opinion, that the administration has ended TPS for every country that has come up for renewal. (He doesn’t connect the dots to his conclusion in the written opinion that this undercuts the challengers’ arguments about the alleged discriminatory animus at play regarding Syria and Haiti.)

It is essentially another 6-3 lineup, with two justices not joining one part of Alito’s opinion, and Thomas filing a concurrence. Kagan has written a sharp dissent, joined by Sotomayor and Jackson, but she does not summarize it from the bench.

The reporters look expectantly at the chief justice, wondering whether there could be yet more today. But he is looking to the marshal.

Curley bangs her gavel and announces that the court is recessed until Monday. With no “penultimate” announcement from the chief justice, it appears there are at least two more opinion days, with more fireworks likely.

The Supreme Court on Thursday sided with Monsanto in a high-stakes dispute over cancer warnings on pesticide labels. In an opinion by Justice Brett Kavanaugh in Monsanto Company v. Durnell, the court ruled, by a vote of 7-2, that state lawsuits aimed at holding the company liable for failing to warn consumers about the potential risks of Roundup exposure are barred by the federal law governing pesticide sales.

Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justice Neil Gorsuch. In it, she contended that Thursday’s ruling is based on “a labeling requirement that does not exist,” and described the effects of the majority’s interpretation of the law as “both remarkable and regrettable.”

The court’s ruling comes after decades of debate and litigation over the safety of glyphosate, a highly effective and popular herbicide that serves as the main active ingredient in Monsanto’s Roundup weedkiller. Since 1974, when the Environmental Protection Agency first reviewed and registered glyphosate-based pesticides, clearing the way for their sale in the United States, the EPA has repeatedly concluded that such products do not need to carry a cancer warning. However, the EPA’s determinations have not dispelled concerns about Roundup’s cancer risks. These concerns increased in 2015, when a working group of the International Agency for Research on Cancer, part of the World Health Organization, classified glyphosate as “probably carcinogenic to humans.”

The IARC’s report led to tens of thousands of lawsuits against Monsanto over how Roundup products were labeled. Plaintiffs such as John Durnell, who brought the case that was before the court, contended that the company was liable for failing to warn them about the alleged link between glyphosate and cancer, while Monsanto countered that the EPA, which oversees pesticide labeling, had not required a cancer warning.

Over the past decade, Monsanto has paid billions in damages and settlement agreements in these lawsuits even as it has continued to assert that state-level claims over Roundup labels are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, which authorizes the EPA to regulate the use, sale, and labeling of pesticides and which includes a uniformity requirement prohibiting states from imposing “any requirements for labeling or packaging in addition to or different from those required” by the federal government.

When it asked the Supreme Court to clarify the scope of FIFRA, Monsanto emphasized that thousands of lawsuits over Roundup’s label remain pending and claimed that the future of U.S. agriculture was at stake in the case. In January, the justices agreed to weigh in.

On Thursday, the court held that FIFRA expressly preempts a state-law failure-to-warn claim against Monsanto, because such a claim would require the company “to add a cancer warning to Roundup’s label” that is not part of the EPA-approved label. That outcome, Kavanaugh wrote in his 22-page majority opinion, runs afoul of FIFRA’s uniformity requirement.

Before registering a product for sale and distribution, Kavanaugh explained, the EPA “undertakes an extensive review of the pesticide and its proposed labeling,” and “determine[s] that the proposed label includes all warnings necessary and adequate to protect human health and the environment.” Once registered, “the manufacturer is required to use” the label approved by the EPA until it receives approval for a change or the EPA orders a change. The agency, according to Kavanaugh, “possesses a slew of tools to monitor the pesticide market and scientific developments, and thereby ensure that pesticide labels contain appropriate warnings in light of changed circumstances or new information.”

Since it first studied glyphosate-based pesticides in 1974, Kavanaugh continued, the EPA has “repeatedly concluded that glyphosate is not likely to cause cancer” and therefore not required “pesticides like Roundup to include a cancer warning on their labels.” That means that, “as a matter of federal law, Monsanto legally must use a label without a cancer warning unless and until EPA approves or requires a change.”

Kavanaugh rejected Durnell’s contention, echoed by Jackson in her dissent, that a state failure-to-warn claim does not violate the uniformity requirement because the goal of both the claim and FIFRA is to ensure that manufacturers “include adequate warnings to protect human health.” Such an argument, he wrote, “operates at far too high a level of generality and disregards the central and comprehensive role that EPA performs in making labeling determinations.”

Kavanaugh also dismissed the idea that state claims must be allowed to ensure that labels account for new research. “EPA does not sit in an information-free silo,” he wrote. “It keeps abreast of new safety developments” and follows up on potentially significant findings, such as when it “commissioned multiple reports about glyphosate’s potential carcinogenicity” after the IARC report came out. Third parties are free to “bring new information to EPA’s attention,” Kavanaugh concluded, but they cannot use state lawsuits to “impose labeling requirements” that the EPA has deemed unnecessary or inaccurate.

Justice Clarence Thomas wrote a brief concurring opinion, in which he expressed support for the majority opinion but called out what he believes are “underlying constitutional infirmities” in FIFRA. “[T]he Act,” he wrote, “likely exceeds Congress’s authority under the Commerce Clause,” because agriculture and manufacturing are “entirely ‘separate’ from ‘commerce.’” It also “raises questions about Congress’s ability to delegate core legislative power to the EPA,” he contended, and about separation-of-powers issues raised by “the modern administrative state.”

In her 24-page dissent, Jackson wrote that the court should have joined the “chorus” of “state and federal courts that have rejected” Monsanto’s preemption argument. She asserted that FIFRA gives the EPA the authority to review product labels when assessing pesticides, but not the authority to have the final say on cancer warnings. “In accepting Monsanto’s argument and holding that Durnell’s failure-to-warn claim is preempted, the Court misunderstands FIFRA’s requirements, misinterprets the scope of FIFRA’s preemption, and ultimately leaves Durnell without a remedy for the significant harms he has suffered,” she wrote.

“FIFRA,” according to Jackson, “expressly limits States’ authority to regulate pesticide labels, but it does not eliminate that authority.” States retain the power to impose labeling requirements that are “‘equivalent to’ FIFRA’s requirements,” and the cancer warning at issue in this case is one such permissible state requirement because it stems from the shared goal of avoiding misbranding. “As the Missouri Court of Appeals explained, Durnell’s claim has the same ‘practical effect’ as FIFRA’s misbranding prohibition: ‘[B]oth require a pesticide manufacturer to adequately warn users of the potential dangers of using its product,’” she wrote.

The idea that “state law cannot require Roundup’s label” to include a warning that the EPA has not required “has some intuitive appeal,” Jackson acknowledged, adding that “federal approval should count for something, after all.” But that conclusion “is unmoored from the” the text of FIFRA, which says that registered pesticides can still be subject to a misbranding charge. “This means,” she wrote, “that the EPA’s approval of a pesticide’s label cannot conclusively establish that the pesticide is not misbranded.” “The majority reads into FIFRA a labeling requirement that does not exist, and it reads out of FIFRA the statute’s ongoing prohibition on misbranding,” Jackson concluded.

The Supreme Court on Thursday upheld the federal government’s policy of systematically turning back asylum seekers before they can reach the U.S.-Mexico border. By a vote of 6-3, the justices agreed with the Trump administration in Mullin v. Al Otro Lado that the policy, which was adopted a decade ago as a response to a surge in the number of Haitian immigrants seeking asylum outside San Diego, does not violate a federal law that permits noncitizens to apply for asylum when they “arrive[] in the United States.”

Writing for the majority, Justice Samuel Alito called the question before the court a “straightforward” one. “In ordinary speech,” he wrote, “no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase ‘arrives in the United States’ is used in the immigration statutes at issue here supports an ordinary meaning.’”

In an opinion that she read from the bench – an expression of strong disagreement with the majority’s decision – Justice Sonia Sotomayor (joined by Justices Elena Kagan and Ketanji Brown Jackson) wrote that “[t]he consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not.”

The policy at the center of the case is known as “metering.” Officials from the Customs and Border Patrol agency implemented the policy – which was formalized in a memorandum in 2018 – by standing along the U.S. border with Mexico and turning back noncitizens without valid travel documents, including asylum seekers, before they could enter the United States.

The challengers in the case are Al Otro Lado, Inc., an immigrant rights group, and 13 people who are seeking asylum, which is a form of legal protection for people who fear persecution or harm in their own countries. When noncitizens who arrive at a port of entry (an officially designated site to enter the country), such as an airport or a land crossing, indicate that they want to seek asylum, they are normally screened by border officials and then channeled into the asylum system, which may include either an interview with an asylum officer or proceedings in immigration court.

The challengers argued, and the U.S. Court of Appeals for the 9th Circuit agreed, that, for purposes of applying for asylum, noncitizens who were turned away from ports of entry before they could cross the border had “arrived in” the United States.

On Thursday, the Supreme Court reversed that decision. Alito first pointed to what he characterized as the “clear” meaning of the phrase “arrives in the United States” “when used in everyday speech.” Surveying several different major dictionaries, Alito concluded that “a person arrives in a destination when he enters within its area—not before.” He rejected the challengers’ argument that “when someone ‘block[s]’ the way of the person seeking to arrive,” “to arrive in a place is merely to ‘be at its threshold’” – so that, for example, asylum seekers “arrive in the United States” when they try to enter the country. “A running back does not arrive in the end zone when he reaches the 1-yard line,” Alito countered, nor does a letter “arrive in the mailbox when a dog assaults the carrier a step away from the mailbox. A person arrives in a destination only when he enters it, and that conclusion does not change because someone or something blocks entry.”

This conclusion, Alito continued, is bolstered by other immigration laws that distinguish between “actual entrance into the United States and attempted entrance.” The latter distinction, he suggested, shows that “[a]n alien who unsuccessfully attempts to arrive in the United States does not arrive in the United States.” If Congress had wanted “aliens who arrive at or near the border to be able to apply for asylum,” Alito emphasized, it could have said so expressly. But, he concluded, “Congress did not use those terms.”

Alito also rebuffed the challengers’ argument that the phrase “arrives in” must apply to some asylum seekers who are not yet in the United States because the same provision also allows noncitizens to apply for asylum if they are “physically present in the United States.” Otherwise, the challengers contended, and contrary to one of the principles on which courts rely when interpreting laws, the phrase “arrives in” would not have any additional meaning. Alito acknowledged that the challengers’ “argument has some force,” but he wrote that the rule is not an “iron” one. “[E]ven excellent writers do not always trim every unnecessary word,” he said, “and the same is true of Congress.”

Additionally, Alito pushed back against the challengers’ contention that accepting the government’s interpretation would violate the United States’ obligation under international conventions, as well as the Refugee Act of 1980, not to return refugees when they would face persecution because of characteristics such as their race or religion. The Supreme Court has held, Alito emphasized, that the ban on returning refugees “imposes a duty on nations not to send refugees that are within their borders to certain places. It does not establish,” he wrote, “that refugees have a right to enter a nation at the time they prefer.”

Finally, Alito rejected the challengers’ suggestion that the majority’s decision “will create perverse incentives for aliens to enter the country illegally” instead. “Metering,” he wrote, “does not permanently bar any alien from arriving in the United States and then applying for asylum. It merely delays the date when some may enter. Illegal entry, on the other hand, may be expensive and dangerous, and it carries adverse legal effects.”

Justice Clarence Thomas filed a concurring opinion in which he argued that the lower court, by issuing a declaration that the government’s metering policy violated federal law, had granted “relief that Congress has prohibited” under federal immigration law, which provides that only the Supreme Court has the power “to enjoin or restrain the operation of” some federal immigration laws. But in any event, Thomas added, Congress does not have the power under the Constitution to require the president to “allow aliens to cross the border against his will.”

In her 35-page dissent, Sotomayor challenged Alito’s conclusion that the ordinary meaning of the phrase “arriving in” always means that someone is physically within a particular space. “If someone said, ‘Call me when you arrive in Washington, D. C.,’” she posited, “it would be logical to call them once you have landed at DCA Airport, just across the river in Virginia.”

Sotomayor also reiterated the argument that the majority’s ruling creates “‘a perverse incentive’” for asylum seekers to enter the country illegally, suggesting that Alito was wrong to dismiss the concern as “overstated.” “The point,” she wrote, “is not that illegal entry always produces a net windfall for asylum seekers; it is that Congress was unlikely to devise a system in which asylum is available to those who unlawfully set foot over the border, but not to those who attempt to comply with the law and are physically blocked from entering at the threshold of a port of entry by an immigration officer.”

“Congress,” Sotomayor concluded, “passed the Refugee Act in 1980 because it did not want this country to repeat the mistakes of its past. Yet if the refugees on the M. S. St. Louis” – a ship carrying more than 900 Jewish refugees seeking to escape from Nazi Germany, who were turned away from (among other countries) the United States and eventually returned to western Europe, where many of them died in the Holocaust – “were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U.S. soil.”

In an extremely rare move, Alito responded briefly to Sotomayor’s dissent from the bench, saying that there was “much that I would have added” to his oral summary of the opinion if he had known she would read such an extensive summary. Alito emphasized that the “metering” policy had been employed “by two different administrations” – the Obama administration and the first Trump administration” – “as a way of dealing with surges” of asylum seekers at the border in an “orderly and humane” manner.

Justice Ketanji Brown Jackson wrote a brief separate dissent in which she argued that the court should have never granted review because the metering policy had been rescinded in 2021 and the case lacked “a factual record establishing how metering works in practice.”

The Supreme Court on Thursday cleared the way for the federal government to remove protections for citizens of Haiti and Syria under a federal program that allows foreign citizens to stay in the United States when the U.S. government believes that it is not safe for them to return to their homes. By a vote of 6-3 in Mullin v. Doe, the justices paused rulings by federal courts in Washington, D.C., and New York that had barred the Trump administration from ending the designations under the program, known as Temporary Protected Status, for Haiti and Syria. Instead, the court ruled that the federal law creating the TPS program generally bars courts from reviewing the determinations by then-Secretary of Homeland Security Kristi Noem to end the TPS designations for Haiti and Syria. The court also ruled that the Haitian TPS holders are likely to lose on the claim that Noem ended TPS status for Haiti because the country’s citizens are overwhelmingly Black and therefore violated the Constitution’s guarantee of equal treatment.

Writing for the majority, Justice Samuel Alito wrote that the language of the TPS statute prohibiting judicial review “is clear, and its plain meaning is very broad.”

Justice Elena Kagan dissented, in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. She wrote that at this stage of the litigation, the Haitian and Syrian TPS beneficiaries “ask for only one thing: that they may stay in this country while they continue to litigate their claims. … [T]hey are entitled to that relief, and should not instead be consigned to devastating, and indeed life-threatening, injury.”

Congress enacted the Temporary Protected Status program in 1990. The program gives the Department of Homeland Security the power to designate a country’s citizens as eligible to remain in the U.S. and work if they cannot return safely to their own country because of a natural disaster, armed conflict, or other “extraordinary and temporary” conditions there.

Then-Secretary of Homeland Security Janet Napolitano made both of the designations at the center of this case. In 2010, shortly after a magnitude 7.0 earthquake struck Haiti, killing more than 300,000 people and causing catastrophic damage, she designated Haiti under the TPS program. Napolitano made a similar designation for Syria two years later, pointing to “deteriorating conditions” there after a “brutal crackdown” by Syrian dictator Bashar al-Assad against anti-government dissenters.

Napolitano’s designations of Haiti and Syria initially lasted for 18 months, but they were repeatedly extended until 2025, when Noem announced that the Trump administration planned to end both designations. Noem said that a new Syrian government was attempting to “move the country to a stable institutional governance,” and that she had determined that “there are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals … from returning in safety.” And in both cases, she indicated that it would be “contrary to the national interest” to allow the countries’ TPS designation to remain in place.

Challenges from Haitian and Syrian nationals with TPS followed in Washington, D.C., and New York, respectively. Federal judges in those cities barred the Trump administration from ending the TPS program for both countries, and two federal appeals courts declined to step in.

The Trump administration then came to the Supreme Court earlier this year, asking the justices to pause the lower courts’ orders and hear oral arguments in the disputes immediately, without waiting for the federal appeals courts to weigh in. Those requests came less than a year after the Supreme Court twice blocked rulings by a federal district judge in San Francisco that would have temporarily barred the Trump administration from ending a TPS designation (as well as an extension of that designation) for Venezuela.

On March 16, the Supreme Court agreed to take up the Haiti and Syria disputes, but it temporarily left the lower courts’ rulings in place – and, as a result, kept the protections for Haitian and Syrian nationals intact – while the case moved forward at the Supreme Court. The court heard oral arguments on April 29.

On Thursday, the Supreme Court reversed the lower court’s rulings. Alito explained that the law creating the TPS program “allows ‘no judicial review of any determination . . . with respect to the . . . termination’ of a TPS designation. The term ‘determination,’” he continued, “can be used to describe either an individual decision or” “the chain of events leading up to a decision.” Moreover, Alito continued, the government’s reading is supported by “other terms” in the same provision, “particularly the phrase ‘with respect to’”—which “‘generally has a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject.’”

“Under either of these definitions,” Alito concluded, courts generally cannot review Noem’s decisions to terminate the TPS designations for Syria and Haiti. Each of the claims by the challengers in this case involves “a discrete decision made by the Secretary—for example, her decision to consult the State Department in a particular manner and her decision that country conditions in Syria and Haiti justified termination of their TPS designations. And all those steps were part of the process that led to her final decision to terminate these countries’ TPS designations.”

Alito also rejected the challengers’ argument that although courts cannot review the substance of Noem’s decision to terminate TPS status, they can weigh in on procedural violations of the laws governing her determinations – for example, their claim that Noem “inadequately consulted the State Department about conditions in Syria.” “[T]he TPS judicial-review bar,” Alito stressed, “expressly restricts review.”

Alito similarly turned down the challengers’ contention that decisions that are only part of the secretary’s “ultimate ‘determination’” can be reviewed. Alito once again emphasized that such an interpretation “is inconsistent with the plain meaning of the statutory text. And that is true whether the term ‘determination’ is understood to mean a discrete decision or a process leading up to a final decision.” This theory, Alito continued, is also inconsistent with the general principles of federal agency laws, under which “[i]f the final agency action is unreviewable, then so too are subsidiary determinations.”

Alito downplayed the challengers’ suggestion that, if courts cannot review the secretary’s decisions, it could lead to “many shocking abuses” – such as “a 50-year TPS designation, contrary to the 18-month statutory cap” or a decision to terminate TPS “based on a coin-flip.” Even if the courts could not step in, Alito posited, “Congress would have ample means to stop that abuse, including, for example, through the annual appropriations process.”

And even if there is an exception to the general bar on judicial review for the Haitian TPS beneficiaries’ claim that Noem’s decision to terminate the designation for Haiti violated the Constitution, Alito added, that claim “will likely fail.” The challengers had pointed to statements by President Donald Trump about Haiti – which, as Kagan provided in her dissent, included suggestions that Haitians in Ohio were “eating the dogs . . . [and] cats,” descriptions of Haiti as a “shithole country,” and contentions that Haitians living in the U.S. “probably have AIDS” – as well as statements by Noem about immigration and TPS. Alito acknowledged that the statements contain “heated language.” But “[n]one” of those statements, he concluded, “was overtly racial, and in substance all expressed policy views that could rest on” reasons having nothing to do with race. But, he wrote, “[p]olitical discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by” the Haitian TPS beneficiaries “exemplify this development.”

Justice Clarence Thomas filed a concurring opinion in which he argued that courts also lack the power to review the Haitian TPS beneficiaries’ constitutional claim. “[T]he statute,” he contended, “makes Congress’s intent to preclude judicial review clear.” But even if courts could review constitutional claims generally, he said, these challengers could not prevail because noncitizens cannot sue the federal government for violations of their right to equal treatment. Such a guarantee is only binding on the states, he wrote.

In a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Kagan first offered a different, and narrower, reading of the judicial-review bar. The TPS judicial-review bar, she contended, applies only to the DHS secretary’s “‘ determination’ ‘with respect to the designation, or termination or extension of a designation, of a foreign state.’” This means, she wrote, that courts do have the power to review decisions and actions beyond the secretary’s “determination[s]” about TPS designations or terminations. This includes, she said, “the procedural steps the Secretary must undertake prior to making any determination about” the conditions in a particular country.

Here, Kagan said, the challengers are not arguing that Noem “made the wrong call when she determined that Haiti and Syria no longer meet the criteria for TPS (although the plaintiffs surely think that too). Instead,” Kagan wrote, “the claims are that the Secretary failed to comply with a pre-determination procedural mandate—more specifically, that she failed to consult with appropriate agencies about country conditions.”

Kagan called it “plain to see” that race played a role in the decision to terminate the TPS designation for Haiti. “The evidence” that the Haiti TPS beneficiaries “have offered,” she stressed, “includes statements by the President so repellent and racially inflected that the majority declines to put them in print.” But those “statements fairly shout,” she said, “in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”

“Respectfully,” Kagan concluded, “I dissent from the Court’s decision that” the TPS beneficiaries “may … be put on the next plane.”

This Thursday’s conference is the last one currently scheduled during the October Term 2025. If past practice is any guide, the court will add a mop-up conference after it releases the last opinions in argued cases – which, at this point, looks likely to happen next week. But before the justices can close the books on the term and scatter to their respective undisclosed locations, they have to clear out the relists.

The court made real progress on Monday, disposing of eight relisted cases. As we expected, the court granted review in last week’s Nielsen v. Watanabe, which asks whether a federal prisoner may bring an implied damages action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for alleged deliberate indifference to his medical needs after he was badly beaten by other prisoners. Some informed commentators think that the real question is not whether this particular Bivens claim survives, but whether the court has finally tired of narrowing Bivens one case at a time and is ready simply to overrule it. Meanwhile, the court is holding Mohan v. Watkins, which raises the same issue, pending Nielsen’s resolution.

In seven-time relist McCarthy v. Hernandez, the court summarily reversed the U.S. Court of Appeals for the 2nd Circuit’s grant of habeas relief to Pedro Hernandez, who was convicted of the notorious 1979 murder of six-year-old Etan Patz. Hernandez confessed to the murder multiple times – first before receiving Miranda warnings, and then again after receiving these – and argued that the later confessions were tainted by the earlier, unwarned one.

During deliberations, the jury sent the judge a note asking whether, if it found the first confession involuntary, it had to disregard all the later ones as well. The trial judge said no. The 2nd Circuit held that the trial court should have instructed the jury on the rule of 2004’s Missouri v. Seibert, under which certain two-step interrogations designed to circumvent Miranda are admissible only if the later, warned confession is sufficiently attenuated from the earlier, unwarned statement. The Supreme Court disagreed, and held that the 2nd Circuit had exceeded its authority under the Antiterrorism and Effective Death Penalty Act because Seibert “said nothing about jury instructions.” Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson noted that they would have denied certiorari.

The court also granted, vacated, and remanded (decided without oral argument) in two relisted cases after prosecutors confessed error. The court GVR’d in Newberry v. Texas for further consideration in light of Texas’ brief arguing that the Texas Court of Criminal Appeals had wrongly rejected Newberry’s claim that prosecutors improperly withheld exculpatory information in violation of Brady v. Maryland. And in Grayson v. United States, the court GVR’d after the U.S. Court of Appeals for the 6th Circuit upheld the admission of a FaceTime recording showing Grayson offering to pay for a murder, but the government later conceded that the recording should have been suppressed under federal law. Grayson still may not obtain relief on remand; the government maintains that any error was harmless. Justice Samuel Alito agreed in a dissent from the GVR order that the error was harmless, noting that Grayson herself had called the FBI and described the incriminating FaceTime call in detail.

The other relisted petitions fared less well. Continuing the solicitor general’s intermittent cold streak, the court denied review in United States v. Carter, in which the government sought review of a D.C. Court of Appeals (the highest court in D.C.) decision holding that a defendant’s race is relevant to whether a reasonable person would feel free to leave an encounter with police and thus whether the person has been “seized.” Alito, joined by Justice Clarence Thomas, dissented from the denial of certiorari, saying that the D.C. Court of Appeals’ rule was important, constitutionally fraught, and worthy of review now rather than later.

The court also denied review in five-time relist Saldaño v. Texas. Sotomayor, joined by Kagan and Jackson, dissented from denial, arguing that the court should at least have summarily vacated so that Texas courts could consider whether Victor Saldaño is intellectually disabled and therefore ineligible for execution under 2002’s Atkins v. Virginia. Sotomayor emphasized that every expert to evaluate Saldaño had concluded that he is intellectually disabled – and that even Texas had asked for a remand to sort that issue out. In her view, the Texas Court of Criminal Appeals’ refusal to take even that “modest step” risks turning the Eighth Amendment into a dead letter.

Lastly, the court denied review in 11-time relist City of Los Angeles v. Estate of Hernandez, in which the city sought review of a decision holding that the final two shots an officer fired at a man approaching her with a box cutter were constitutionally excessive. Thomas and Alito noted, without opinion, that they would have granted the petition.

That brings us to this week’s new business. There are 180 petitions and applications for this week’s conference. Six are being considered for a second time. So are they just summer reruns or surprise season finales? Let’s take a look.

Arizona’s proof-of-citizenship triple feature

Three of this week’s new relists – Republican National Committee v. Mi Familia Vota, Petersen v. Mi Familia Vota, and Arizona v. Promise Arizona – arise from long-running litigation over Arizona’s 2022 voting laws, known as House Bills 2492 and 2243. Together, they ask how far Arizona may go in requiring documentary proof of citizenship or residence, limiting mail voting by “federal-only” voters, and checking voter rolls for noncitizens – and how much deference the U.S. Court of Appeals for the 9th Circuit owed the district court after a bench trial.

Some background, regrettably necessary. In 2013’s Arizona v. Inter Tribal Council of Arizona, Inc., the Supreme Court held that the National Voter Registration Act of 1993 requires Arizona to “accept and use” the federal voter-registration form, which does not require documentary proof of citizenship, for federal elections. Arizona responded with a bifurcated system: voters who provided documentary proof of citizenship could vote in all elections, while those who used the federal form without such proof could be registered as “federal-only” voters. Then, in a 2018 consent decree in litigation brought by the League of United Latin American Citizens and others, the Arizona secretary of state (and the Maricopa County Recorder) agreed to treat state-form applicants the same way as federal-form applicants for federal-election registration purposes. In 2022, Arizona enacted H.B. 2492, which among other things required documentary proof of citizenship and residence for state-form applicants and barred certain federal-only voters from voting by mail or for president. H.B. 2243 added new procedures for checking databases and canceling registrations of voters believed not to be citizens.

The district court enjoined significant parts of the laws. As relevant here, it held that Arizona could not reject state-form applications lacking documentary proof of citizenship, both because of the LULAC consent decree and because the NVRA does not allow Arizona to demand that extra proof for federal registration. It also held that the documentary proof-of-residence requirement violated the NVRA, that public-assistance-agency forms requiring extra proof were not “equivalent” to the federal form, that Arizona could not deny mail voting to federal-form registrants lacking documentary proof of citizenship, and that the state could not systematically remove voters within 90 days of a federal election. After a lengthy bench trial, the district court also rejected the claim that H.B. 2243 was enacted with discriminatory intent.

A divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed most of the injunction but (holding that the district court applied too demanding an evidentiary standard) vacated the no-discriminatory-purpose finding. The panel majority also held that Promise Arizona had representational standing, even though Arizona says the organization failed to identify any injured member after trial. Judge Patrick Bumatay dissented, arguing the panel’s decision was “[u]nprecedented” and that Arizona’s proof-of-citizenship and voter-roll-cancellation laws should largely have been sustained. According to Bumatay, the consent decree could not bind the legislature, Promise Arizona lacked standing, and the majority reweighed the discriminatory-intent evidence in derogation of the “strong presumption of good faith” owed to lawmakers. Eleven judges dissented from denial of rehearing en banc on various grounds in three separate opinions.

The petitions divide the issues into three baskets. The RNC’s petition presents two questions: whether the NVRA or the LULAC consent decree bars Arizona from requiring documentary proof of citizenship from state-form applicants, and whether the NVRA bars Arizona from removing noncitizens from voter rolls within 90 days of a federal election. The petition filed by Arizona legislative leaders Warren Petersen and Steve Montenegro overlaps on the state-form question, but also asks whether the NVRA preempts Arizona’s rule barring federal-only voters without proof of citizenship from voting by mail, and whether the 9th Circuit improperly disturbed the district court’s discriminatory-intent ruling. The petition filed by the state of Arizona and state attorney general Kristin Mayes is narrower: it challenges the 9th Circuit’s holding that Promise Arizona has representational standing and the remand on discriminatory purpose.

The solicitor general, one of several respondents in the case, displays the kind of moderation that in Supreme Court practice usually means “everybody is at least a little unhappy.” It supports granting the RNC petition but opposes the others. The United States says the state-form proof-of-citizenship question and the 90-day removal question warrant review. The government also points to the court’s emergency-docket encounters with these issues before the 2024 election. Specifically, in August 2024, in this case, the court partially stayed the injunction against Arizona’s state-form proof-of-citizenship requirement, though it declined to disturb the injunction against the mail-voting restriction. And in October 2024, in Beals v. Virginia Coalition for Immigrant Rights, the court stayed an order blocking Virginia’s similar noncitizen voter-roll-removal program. The government reads those stays as a preliminary sign that the state-form and voter-roll questions warrant review; respondents read them more modestly, as emergency orders issued under election-season pressures. But the solicitor general argues that the mail-voting issue is not ready for the court, and that the discriminatory-intent ruling, though according to the government “plainly wrong,” is interlocutory (there has been no final ruling) and may be corrected on remand. Arizona responds that describing a ruling as “plainly wrong” is a peculiar reason to deny review.

The other respondents say the cases are poor vehicles. They argue that the state-form issue is entangled with the still-operative LULAC consent decree; that the mail-voting question is Arizona-specific, because Arizona’s federal-only-voter system and heavy reliance on mail voting are unusual; and that the discriminatory-intent issue is premature because the 9th Circuit merely sent this back to the lower court. On the 90-day issue, respondents argue that there is no real split and that the NVRA permits individualized removals close to an election, just not systematic programs likely to sweep in eligible voters when there is little time to correct mistakes. And the RNC and the solicitor general argue that this case presents a valuable opportunity to address these issues outside the context of a contested election.

Given the number of moving pieces, the justices probably need more time just to get a handle on all the issues, much less to decide whether there might be vehicle problems preventing the court from resolving them.

EAJA does it

Our next new relist is Montoya Palacios v. Liggins, which involves a question that sounds technical until you remember that lawyers, like everyone else, prefer to be paid: whether a habeas petition challenging civil immigration detention is a “civil action” under the Equal Access to Justice Act, making a prevailing detainee potentially eligible for attorney’s fees when the government’s position was not substantially justified.

Kevin Montoya Palacios, a citizen of El Salvador, was ordered removed but granted withholding of removal to El Salvador under the Convention Against Torture. After years under an order of supervision, ICE detained him following a routine check-in in Baltimore, saying his case was being reviewed for third-country removal to Mexico. Montoya Palacios filed a habeas petition under 28 U.S.C. § 2241, and the district court ordered his release under his prior supervision terms.

Montoya Palacios then sought fees under EAJA, which authorizes awards to prevailing parties in “any civil action (other than cases sounding in tort)” against the United States, to be filed “within thirty days of final judgment in the action,” defined to mean “a judgment that is final and not appealable.” Montoya Palacios did not wait until the government’s period for appealing his habeas win had expired; he applied immediately, and the district court denied relief under controlling precedent from the U.S. Court of Appeals for the 4th Circuit holding that immigration-detention habeas proceedings are not “civil actions” under EAJA because habeas is a “unique, hybrid” proceeding. Montoya Palacios sought summary affirmance under that precedent in an apparent effort to speed his case to the Supreme Court. The 4th Circuit obliged, affirming in a two-sentence order.

Montoya Palacios sought cert, noting that the government had acknowledged a “deeply rooted circuit split” regarding the availability of EAJA fees for immigration detention proceedings, with the U.S. Courts of Appeals for the 2nd, 3rd, and 10th Circuits holding that such fees are available and the U.S. Courts of Appeals for the 4th and 5th Circuits holding that they are not. The government, in a brief filed without seeking an extension, agrees that “the courts of appeals are divided on the issue, and this case would be a suitable vehicle for resolving the disagreement on an important and recurring legal question.” The papers were distributed for conference and the case appeared to be on a glide path for a grant.

Then came a late-arriving amicus brief filed by Eva Daley and Adolph Michelin, immigrants who won cases deepening the circuit conflict in the 10th and 3rd Circuits, respectively. [Disclosure: My firm was among counsel to Daley in the 10th Circuit and has been among counsel to Michelin in the 3rd Circuit and Supreme Court proceedings.]

They moved to file an amicus brief out of time, explaining that they had only recently learned of the case because of the summary nature of proceedings in the 4th Circuit and because the cert-stage filings were not publicly available through the court’s online docket. They argue that the question should not be decided in what they call a defective vehicle, arguing that Montoya Palacios filed his EAJA application before he was entitled to fees because the judgment was not final and was still open for the government to appeal, and that the case was not subject to adequate adversarial testing because Montoya Palacios sought summary affirmance under circuit precedent. Instead, they argue, the court should await a proper vehicle (such as the government’s anticipated petitions in Michelin or Daley, currently due in July).

Montoya Palacios responded that EAJA sets a deadline, not a “not-before” date; that timeliness is nonjurisdictional and was not raised by any party; and that summary affirmance is unsurprising when circuit precedent squarely forecloses the claim. Montoya Palacios argues that the issue is too urgent to wait for another vehicle, citing rapidly increasing numbers of immigration habeas cases and fee decisions dividing along circuit lines.

It seems likely that the Supreme Court will be resolving this issue during October Term 2026. It appears to be selecting the case or cases in which to do it.

Standing and parental rights

The Supreme Court and several justices have expressed concerns about state laws that affect parents’ involvement in their children’s gender identity and transitioning. Our next new relist, International Partners for Ethical Care, Inc. v. Ferguson, raises it in a new context: 2023 amendments to a Washington state law governing runaway youth shelters. Petitioners, a group of Washington parents, say those laws allow runaway minors seeking “gender-affirming treatment” to be referred for services without parental notice or consent, keep parents from learning their child’s location or condition, and delay reunification unless parents accept the state’s preferred approach. Washington describes them as “modest steps to address the crisis of transgender youth homelessness.”

The petitioners, backed by several organizations, challenged a trio of state laws, chiefly Senate Bill 5599 and House Bill 1406, directing Washington’s child-welfare agency to offer various behavioral-health services. The district court dismissed for lack of Article III standing. A unanimous panel of the U.S. Court of Appeals for the 9th Circuit affirmed, holding that the parents’ asserted injuries were not “actual or imminent,” but rather depended on numerous contingencies: a child would have to identify as transgender, run away, go to a licensed shelter, seek protected health care services, decline reunification services, accept referrals, and ultimately receive gender-affirming care. At most, the panel found, the parents “allege only that the looming ‘threat’ imposed by the Statutes has led them to alter their parenting styles so that the Statutes cannot affect them.” The court denied rehearing en banc over the dissent of three judges.

Petitioners contend that some judges are misusing standing doctrine as “an excuse … to avoid what they perceive as contentious constitutional questions.” They argue that “even though these laws do not regulate parents directly, parents of gender-confused children clearly … ‘might be considered an object of the [Washington] regulations,’” and thus have standing to challenge laws affecting them. They claim the decision below conflicts with decisions of the Supreme Court and the 5th Circuit. They are supported by so many amicus briefs (20) that the clerk’s office may decide it needs to start charging by the pound. Washington defends the decision as based on layers of contingencies, and emphasizes that the challenged laws impose no obligations on petitioners; do not authorize the state to take custody of children; and require Washington’s Department of Children, Youth, and Families to make good-faith efforts to notify parents and offer voluntary family-reconciliation services.

There is a lot here for the justices to sort through over the next week.

Yet another AEDPA split

Our last relist asks the justices to untangle yet another puzzle created by AEDPA when it was enacted 30 years ago. To appeal the denial of a federal habeas or 28 U.S.C. § 2255 motion, a prisoner needs a certificate of appealability, which a judge may issue only upon a “substantial showing of the denial of a constitutional right” – meaning that “reasonable jurists could debate” the claim.

Berry v. United States asks whether a COA should issue when the prisoner’s claim is foreclosed by his own circuit’s precedent but has been resolved in his favor by another circuit. The U.S. Courts of Appeals for the 5th, 6th, and 11th Circuits say no; the 9th and 10th Circuits say yes. Berry’s premise has a certain logic: a square circuit split is about the most concrete proof imaginable that reasonable jurists can debate something. In his case, the 11th Circuit saw it the other way, reasoning that “reasonable jurists will follow controlling law,” so binding circuit precedent ends the debate before it starts, whatever those misguided neighbors may think.

Here, Corey Berry pleaded guilty years ago to an 18 U.S.C. § 924(c) count predicated on attempted carjacking as a “crime of violence.” After the Supreme Court held in 2018’s United States v. Davis that § 924(c)’s residual clause was unconstitutionally vague and in 2022’s United States v. Taylor that attempted Hobbs Act robbery is not a “crime of violence” under its elements clause, Berry won authorization to file a second Section 2255 motion – only to lose under circuit precedent requiring him to prove his conviction rested only on the now-defunct residual clause. Berry didn’t try to satisfy that framework; he attacked it, and the same district judge who had taken his plea, and then the 11th Circuit denied him the COA that would allow him to appeal.

Berry now seeks Supreme Court review. He argues that “[w]here, as here, the circuits have divided on a legal issue, that issue is by very definition one that ‘reasonable jurists could debate.’ After all, they have in fact already debated it.” Several amici sharpen the systemic worry: a group of former federal judges and the criminal-defense bar note that COA denials grounded in circuit precedent quietly strangle the appeals that let the Supreme Court resolve splits in the first place. The government, for its part, largely sidesteps the 11th Circuit’s reasoning and characterizes the circuit conflict as a “limited disagreement” with no real-world consequences. And it adds some vehicle objections, claiming that Berry procedurally defaulted his claim and that it is time-barred. Berry answers that the decision below relied on neither defense, and so neither should be resolved by the Supreme Court before addressing the issue he petitioned on: this is, after all, “a court of review, not of first view.”

This one might have legs.

New Relists

International Partners for Ethical Care, Inc. v. Ferguson, 25-840

Issue: Whether parents have standing to challenge a law or policy that deliberately displaces their decisionmaking role as to “gender transitions” of their children, and in so doing creates present and likely future impediments to their ability to parent their children as they deem best for them.

(Relisted after the June 18 conference.)

Montoya Palacios v. Liggins, 25-1223

Issue: Whether, under the Equal Access to Justice Act, “any civil action” encompasses an action seeking a writ of habeas corpus to challenge civil immigration detention.

(Relisted after the June 18 conference.)

Republican National Committee v. Mi Familia Vota, 25-1017

Issues: (1) Whether the National Voter Registration Act or a federal consent decree prohibits Arizona from requiring voter-registration applicants to produce “satisfactory evidence” of U.S. citizenship when registering with a state registration form; and (2) whether the NVRA prohibits Arizona from implementing a program within 90 days of a federal election to cancel the registrations of voters who are not U.S. citizens.

(Relisted after the June 18 conference.)

Petersen v. Mi Familia Vota, 25-1019

Issues:(1) Whether the National Voter Registration Act or a prior consent decree precludes Arizona from requiring documentary proof of citizenship and residence when applicants use its state-specific form to register to vote in federal elections; (2) whether the NVRA preempts Arizona’s prohibition on mail-in voting by registrants who have not provided proof of citizenship; and (3) whether the district court clearly erred in concluding that H.B. 2243, a related law that requires elections officials to check various databases to identify non-citizen or non-resident voters, was not motivated by discriminatory animus.

(Relisted after the June 18 conference.)

Arizona v. Promise Arizona, 25-1022

Issues: (1) Whether Article III allows an organization to sue when an unknown number of its unidentified members “may be” injured; and (2) whether the U.S. Court of Appeals for the 9th Circuit improperly reweighed evidence of discriminatory purpose while reviewing the district court’s finding for clear error.

(Relisted after the June 18 conference.)

Berry v. United States, 25-7026

Issue: Whether a certificate of appealability under 28 U.S.C. § 2253 should be granted where the issue that the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.

(Relisted after the June 18 conference.)

Returning Relists

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

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

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 conferences.)

Duncan v. Bonta, 25-198

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

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 conferences.)

Viramontes v. Cook County, 25-238

Issue: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 conferences.)

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

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

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 conferences.)

Grant v. Higgins, 25-566

Issue: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 conferences.)

Smith v. Kind, 25-943

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

(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 conferences.)

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

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

(Relisted after the May 21, May 28, June 4, June 11, and June 18 conferences.)

The Supreme Court on Thursday struck down a Hawaii law that makes it a crime for gun owners to bring their guns onto private property that is open to the public unless they have the property owner’s specific consent. In Wolford v. Lopez, by a vote of 6-3, the justices agreed with a group of Maui residents with concealed-carry permits that the law violates the Second Amendment’s guarantee of the right to bear arms.

Thursday’s decision will have an impact not only in Hawaii, but also in four other states – California, Maryland, New York, and New Jersey – with similar laws.

In his 24-page opinion for the court, Justice Samuel Alito wrote that the law “hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.” Justice Ketanji Brown Jackson, who dissented, countered that the law “fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment.”

Hawaii passed the law in 2023, just under one year after the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. In Bruen, the court invalidated a New York handgun-licensing law that required state residents who wanted to carry a handgun in public to show that they had a special need to defend themselves. The court also made clear that the Second Amendment protects a broad right to carry a handgun outside the home for self-defense. In his opinion for the majority in Bruen, Justice Clarence Thomas emphasized that courts should uphold gun restrictions only if they are “consistent with the Nation’s historical tradition of firearm regulation.”

Before Hawaii’s ban could go into effect, three Maui residents with concealed-carry permits, as well as a local gun-rights group, went to federal court to challenge the law. A federal appeals court upheld the ban, finding that there was likely “a national tradition … of prohibiting the carrying of firearms on private property without the owner’s oral or written consent.”

The challengers then went to the Supreme Court, asking the justices to weigh in. The court agreed to do so in October and heard oral argument in January.

On Thursday, the Supreme Court reversed. Alito found it clear that the Hawaii law fell within “the plain text of the Second Amendment” and was therefore “presumptively unconstitutional.” “No party,” he wrote, “disputes that” the challengers in the case “are among ‘the people’ protected by the Second Amendment or that they seek to ‘bear,’ i.e., to carry, ‘arms.’” Alito stressed that the Hawaii law “unquestionably imposed a new and significant burden on the exercise of the right” to bear arms.

He acknowledged that under the Hawaii law, property owners can still “admit or exclude” gun owners “who are carrying guns for self-defense.” But the difference between the Hawaii law and the default rule elsewhere in the country – that gun owners with concealed-carry permits can enter private property open to the public “unless expressly prohibited from doing so” – “will determine where carry-permit holders may lawfully carry firearms,” Alito said, when “the owner either pays no attention or does not care about such issues.”

The key question before the court, in his view, was whether there was a history of similar regulations in early U.S. and English history. Alito first rejected Hawaii’s contention that, “whatever the situation in other parts of the country, in Hawaii, opening private property to the public” does not give permission to bring a gun onto that property. Alito countered that “the Second Amendment has the same meaning in all parts of the United States,” where there is “‘overwhelming evidence’” of “an ‘enduring American tradition permitting public carry.’”

Alito next rebuffed Hawaii’s efforts to rely on a group of 18th-century laws that Alito characterized as prohibiting “unauthorized hunting … on someone else’s private property.” Such laws, Alito said, were simply too different from Hawaii’s law, because they did not affect “the Second Amendment’s central objective” of “protecting the fundamental right to self-defense.” Instead, he wrote, they were intended to “prevent the distinctive harms and risks associated with unauthorized hunting.”

Alito also strongly spurned the state’s reliance on “an 1865 Louisiana statute that made it unlawful ‘for any person or persons to carry fire-arms on the premises or plantations of any citizens,’” without the owner’s consent, calling it “remarkable.” That law was “neither widespread nor widely accepted,” Alito contended, and in any event, it was adopted as part of the “so-called Black Codes” to discriminate against formerly enslaved people in the wake of the Civil War. “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

In a dissent joined by Justice Sonia Sotomayor, Jackson contended that the majority was asking the wrong question. In her view, “Hawaii’s law does not implicate the Second Amendment because” “[t]here is no constitutional right to enter private property without the owner’s permission, let alone with a firearm.” The question before the justices, therefore, Jackson wrote, is “merely how a property owner must communicate his decision to exclude or to invite armed carry, including whether a State may alter the background property-law rules that set the default as one or the other. The Second Amendment has nothing to say about that.”

Even if the Second Amendment did apply, Jackson continued, the early American laws that Hawaii offers meet the test outlined by the court in Bruen because they “demonstrate a tradition of state regulation within which Hawaii’s law fits comfortably. Like Hawaii’s,” Jackson said, “these laws required consent for armed entry onto private property open to the public. And like Hawaii’s, they did so to protect property owners’ rights and to prevent the harms that generally accompanied unauthorized armed entry onto private land.”

Jackson, who joined the court after its decision in Bruen, reiterated her view that the case “was wrongly decided.” But in any event, she said, “the Court has now manipulated Bruen into a free-for-all that lets the Judiciary thwart the will of legislatures by privileging access to firearms above all else. Today’s decision makes one thing clear: The Court’s objective is protecting guns, not consistently preserving any principle of law.”

Justice Amy Coney Barrett wrote a concurring opinion, joined in part by Justices Clarence Thomas and Neil Gorsuch, in which she pushed back against Jackson’s insistence that property law, rather than the Second Amendment, is at the core of the dispute. She contended that Jackson’s argument “misunderstands the role of historical evidence in a Second Amendment challenge.” For purposes of determining whether the Second Amendment is implicated at all, Barrett wrote, it does not matter “that a property owner has the right to exclude anyone who wishes to enter her property with firearms. No one doubts that all property owners in Hawaii could bar the carry of arms on their respective premises, if they wanted to.” But, Barrett continued, “the Second Amendment does not apply to private parties. It does apply to the States. And when a State enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment.”

Justice Elena Kagan wrote a brief dissenting opinion of her own. In her view, the court could have upheld the Hawaii law “because … it is a modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent.”

Plus, we will be live blogging this morning beginning at 9:30 a.m. EDT as the court announces opinions in one or more argued cases. We are expecting 12 more decisions by early July, including Trump v. Barbara (birthright citizenship); Trump v. Slaughter (removal protections for heads of independent agencies); Trump v. Cook (Trump’s effort to fire Fed Governor Lisa Cook); West Virginia v. B.P.J. and Little v. Hecox (transgender athletes); Watson v. Republican National Committee (mail-in voting); and Mullin v. Doe (Temporary Protected Status).

At the Court

After any opinion announcements this morning, the justices will meet in a private conference to discuss cases and vote on petitions for review.

Morning Reads

Trump's power takes center stage in US Supreme Court's home stretch

Andrew Chung, Reuters (paywalled)

As the court enters the home stretch of the current term, “some of its biggest cases yet to be decided will test Donald Trump’s aggressive efforts to expand presidential authority,” according to Reuters. “The cases involve his efforts to limit birthright citizenship, fire Federal Reserve Governor Lisa Cook, oust Democratic members of independent agencies and terminate a humanitarian legal status protecting hundreds of thousands of Syrian and Haitian immigrants from deportation.” “It’s totally normal for the most important cases of the term to come out in the last few days. What is unusual is that there are so many blockbuster cases,” said Sam Erman, a constitutional law professor at the University of Michigan, to Reuters.

Map Shows Abortions Per State 4 Years After SCOTUS Overturned Roe v. Wade

Anna Skinner, Newsweek

Four years after the “Supreme Court eliminated the constitutional right to abortion” in Dobbs v. Jackson Women’s Health Organization, the number of abortions taking place in the U.S. has not fallen as much as “lawmakers and advocates expected,” according to Newsweek. “Instead, it has climbed, and abortions are still happening even in states with the strictest bans.” Data from the Society of Family Planning shows that, “[i]n the states with the strictest bans, most abortions were provided via telehealth services.” “The ability to consult providers remotely and receive abortion pills by mail—including across state lines—has significantly lowered barriers for many people.”

Religious Prisoners Need Congress’s Help

The Wall Street Journal Editorial Board (paywalled)

In an editorial on the court’s ruling in Landor v. Louisiana Department of Corrections and Public Safety, the Wall Street Journal Editorial Board called on Congress to take action to avoid the consequences of the decision, which held that individual prison guards can’t be sued for money damages under the Religious Land Use and Institutionalized Persons Act for violating prisoners’ religious rights. “Occasionally a party that loses at the Supreme Court will still win the larger debate, because the legal outcome is such a frustration of justice that it prompts change,” the editorial said. “The case of Damon Landor, a dreadlocked Rastafarian who was forcibly shaved by state prison guards, belongs in this category.”

The Supreme Court’s Opinion Day Ritual Helps Conceal the Justices’ Favorite Lie

Jay Willis, Balls and Strikes

In a column for Balls and Strikes, Jay Willis took aim at the court’s process for releasing opinions, contending that it should no longer refuse to reveal in advance how many and which opinions will be released on a given opinion announcement day because “[n]othing about the Court’s work necessitates this performative melodrama.” “If the justices so desired,” Willis wrote, “they could announce with a reasonably high degree of confidence when they plan to publish a particular opinion. If the justices were hesitant to commit to a day, they could at least designate the week when, say, the parents of children whose citizenship status will be decided by Trump v. Barbara can actually expect to read it.”

On Site

From the SCOTUSblog Team

When Congress “overrides” the court

The Supreme Court doesn’t necessarily have the final say on an issue. Congress can limit the impact of a ruling by updating the statute the decision addressed, passing a new law, or proposing a constitutional amendment. Kelsey explored three of the most important examples of Congress “overruling” the court.

Contributor Corner

The blast radius of Callais – and what it means for Constitutional Law

In her Cases and Controversies column, Carolyn Shapiro reflected on what we know now about the significance of Louisiana v. Callais, about a month and a half since it was decided. She contended that Callais has not only “decimated voting rights protections for minorities,” but also fueled a push to rethink protections against race-based employment discrimination.

Podcasts

Advisory Opinions

Enforcing International Law in U.S. Courts

Sarah Isgur and David French explain the various legal complications of the U.S.-Iran Memorandum of Understanding and react to the opinions handed down by the Supreme Court on Tuesday.

A Closer Look

Powell v. Securities and Exchange Commission

From 1972 until last month, settlement agreements with the Securities and Exchange Commission included a unique condition: Defendants had to agree not to publicly deny the SEC’s allegations against them. If they broke this “no-deny provision,” as the SEC called it (critics preferred “gag rule”), the commission could go back to the court that oversaw the settlement agreement and reopen the case.

In 2018, the New Civil Liberties Alliance, which describes itself as “a nonpartisan, nonprofit civil rights group founded ... to protect constitutional freedoms from violations by the Administrative State,” petitioned the SEC to amend the provision, contending that it violated the First Amendment’s guarantee of free speech. Five years later, and without a response from the commission, the NCLA renewed its petition, this time alongside several more challengers.

In January 2024, the SEC responded, denying the petition to amend the rule. Although one commissioner dissented, a majority concluded that the no-deny provision was both necessary and constitutional. “There is a large body of precedent confirming that a defendant can waive constitutional rights as part of a civil settlement, just as a criminal defendant can waive constitutional rights as part of a plea bargain,” they said.

The challengers appealed the SEC’s denial to the U.S. Court of Appeals for the 9th Circuit, which has the authority to consider an SEC order so long as one of the challengers lives in the region it oversees. They asserted that the no-deny rule was unconstitutional on its face and that the SEC had violated the law governing administrative procedure when it put the rule in place.

In August 2025, the 9th Circuit denied this petition for review. It echoed the SEC’s conclusion, holding that “[t]he law has long regarded the voluntary relinquishment of constitutional rights as permissible, so long as appropriate safeguards are attached.” However, it added that it did not seek to “minimize petitioners’ concerns,” and suggested that their First Amendment questions would be “properly addressed in as-applied challenges” (that is, in specific circumstances) rather than the current facial-type one.

In March, the challengers filed a petition for review with the Supreme Court, in which they urge the justices to take up the case and hold that the provision violates the First Amendment. “This ban requires Americans to take their unspoken grievances against the agency to their graves. The First Amendment prohibits that most un-American result,” they write.

The challengers describe the policy as “virtually unprecedented” and say it’s especially troubling given how common settlements are in SEC proceedings. “[T]he SEC’s enforcement actions often drag on for years. Running this gauntlet inflicts an enormous personal, financial, and reputational toll on the SEC’s targets. ... The burdens are so great that 98% of those charged by the SEC—often despite vigorously asserting their innocence and objecting to the agency’s actions—are ultimately forced to capitulate through settlement.”

In May, two months after the petition for review was filed, the SEC rescinded the challenged rule, acknowledging that the policy “may have created an incorrect impression that the Commission is trying to shield itself from criticism.” U.S. Solicitor General D. John Sauer highlights this development in the SEC’s brief responding to the petition, arguing that the case is now moot. While he acknowledges that “a party cannot ‘automatically moot a case’” with a policy change, he writes that “such cessation does moot a case if the relevant practice ‘cannot reasonably be expected to recur,’” which he claims is true of the SEC’s decision.

Sauer adds that, even before the rescission of the rule, the case was not worthy of the court’s attention, because it does “not satisfy the court’s usual criteria.” Among other things, the 9th Circuit’s decision “does not conflict with any decision of this Court or another court of appeals.”

In their reply brief, the challengers contend that the rescission of the rule “tells the Court everything it needs to know about the certworthiness of the question presented. Agencies do not vacate longstanding rules the moment litigation arrives at this Court (and the Solicitor General assumes the lead), unless the government is gravely concerned about the likelihood of this Court’s review and its ability to defend those rules on the merits.” They further argue that the case is not moot, because the “government provides no meaningful assurance that a future SEC will not revive the Gag Rule.”

Powell v. Securities and Exchange Commission is expected to be considered by the justices for the first time at their private conference on Thursday.

SCOTUS Quote

“When one intends the facts to which the law attaches consequences, he must abide the consequences, whether intended or not.”

— Justice Harlan Fiske Stone in Texas v. Florida (1939)

Minority voting rights

Congress enacted the current version of Section 2 in part to ensure that minority voters are able to have meaningful representation in multimember elected bodies. But the court appears to believe that purpose itself to be unconstitutional. Intentional racial discrimination in voting and election law violates the 14th and 15th Amendments, and the Supreme Court is now treating efforts to protect minority voters’ electoral influence as constitutionally equivalent to efforts to undermine it. Barely a month after deciding Callais, the court invoked “our colorblind constitution” in a shadow docket ruling allowing Alabama to eliminate the congressional district that a district court had ordered to remedy racial discrimination. That per curiam opinion, Allen v. Milligan, from which the three liberal justices dissented, effectively reversed the court’s own 2023 merits opinion in the very same litigation. (Alabama is not alone. Several other southern states have redistricted in ways that eliminate or reduce minority voters’ electoral power.)

At least as alarming is that the Allen shadow docket opinion also rejected the district court’s factual finding that Alabama intentionally discriminated against Black voters. Callais itself claimed not to be addressing intentional discrimination, only cases about discriminatory effects in redistricting. But it is now clear that this claim, barely credible to begin with, was false. In Allen, the court expanded on Callais’ new requirement that a voting rights plaintiff alleging disparate impact in redistricting produce an alternative map that performs “just as well” as the state’s map “with respect to all of the state’s constitutionally permissible criteria.” The court combined that new standard with prior precedent demanding a presumption of “legislative good faith” in redistricting cases alleging intentional discrimination. That combination, as applied in Allen, suggests that once a state claims any constitutionally permissible basis for its map, the case may be functionally over. Plaintiffs may not even be allowed to try to demonstrate that the claimed “permissible basis” is a pretext for intentional discrimination. Whether they can proceed to that stage will depend on whether they can produce an alternative map that meets Callais’ new “just-as-well” standard.

Indeed, the Allen court barely mentioned the district court’s analysis of the extensive evidence of racial discrimination. The Supreme Court ignored, for example, the district court’s detailed findings that Alabama had deviated significantly from its prior redistricting practices and criteria. And it even credited as a constitutionally permissible purpose Alabama’s desire to keep intact a district that encompasses the Gulf Coast despite the state’s express reliance on that area’s “French and Spanish colonial heritage.” (In other words, according to Allen, it’s constitutionally permissible for the state to take into account a community’s white European heritage in drawing its map.) As Justice Sonia Sotomayor said in dissent, if the district court clearly erred by finding discriminatory intent here, “there is no realistic case in which the presumption of legislative good faith can ever be rebutted.” Cases in which the circumstances “give rise to a strong inference of racial discrimination,” as demanded by Callais, may thus be a null set.

So Callais has decimated voting rights protections for minorities. But perhaps only for minorities. In the past, the court has required plaintiffs alleging intentional discrimination in redistricting to show that consideration of race “predominated” over other factors. Callais, on the other hand, suggests that any desire to protect or perhaps even consider minority voting power is unconstitutional. We may well see a wave of new racial gerrymandering claims brought by white voters challenging their districts on that basis. One wonders whether or how the “presumption of legislative good faith” will apply in such cases.

Callais’ impact on the law of employment discrimination

Up next may be employment discrimination, at least if the Department of Justice’s Office of Legal Counsel has its way. (OLC “provides legal advice to the President and all executive branch agencies.” It does not have the power to actually change the law.) On June 9, 2026, OLC issued an opinion entitled “Constitutionality of Disparate-Impact Liability Under Title VII.” In reliance on Callais and the new version of Allen, OLC purports to declare unconstitutional existing law outlawing (under some circumstances) employment practices that have discriminatory effects. In so doing, it attempts to wipe aside decades of Supreme Court precedent and Congress’ own decision, in 1991, to codify prohibitions on facially neutral employment practices that exclude protected groups but are not tied to job performance.

By way of background, everyone – including OLC – agrees that as enacted in 1964, Title VII outlaws intentional discrimination on the basis of race and other protected characteristics. In 1971, in a case called Griggs v. Duke Power Co., the Supreme Court held that under some circumstances, Title VII also outlaws practices with a discriminatory effect even in the absence of intentional discrimination.

The facts of Griggs are instructive (although simplified here). Before Title VII was enacted, Duke Power, based in North Carolina, had an entirely segregated workforce. African Americans could work only in the Labor Department, one of five “operating departments,” and the one that paid the least. After Title VII went into effect, Duke Power eliminated that restriction but imposed several new requirements. For some jobs, it began to require a “passing” performance on two tests, one that purported to measure “general intelligence” and the other apparently addressing “mechanical comprehension.” The tests had the effect of screening out almost all of the African Americans seeking jobs outside the Labor Department. Duke Power did not claim that these tests measured any skills or abilities necessary for the jobs in question or even for being trained to do those jobs. Instead, it said only that it thought the tests “generally would improve the overall quality of the work force.” Nonetheless, the district court found no intentional discrimination.

In Griggs, the Supreme Court held, 8-0, that Duke Power violated Title VII because it engaged in an employment practice – the test requirement – that had the effect of excluding African Americans from its workforce. It explained that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”

In its June 9, 2026, memo, OLC tries to rewrite Griggs, saying that “[t]he trial court’s findings were controversial, considering” the evidence in the record of discriminatory intent. Of course, it may well be true as a factual matter that Duke Power intentionally discriminated against African Americans. But that is not, remotely, the basis on which the Supreme Court decided Griggs. The court was very explicit that it was addressing Title VII liability in the absence of discriminatory intent.

The OLC opinion also tries to rewrite what Congress did. It claims that Congress “acquiesced in [Griggs’]interpretation when it amended Title VII in 1991,” as if Congress acted only begrudgingly. But that is not correct (nor would it matter if it were given the actual amendment that Congress passed). Rather, when Congress amended Title VII in 1991, it did so in part to override a 1989 case called Wards Cove Packing Co. v. Atonio. Among other things, Wards Cove had “dilute[d] the “necessity” in the “business necessity” defense,” focusing instead on “the employer's legitimate interests,” a much lower bar than Griggs had required.

Congress rejected Wards Cove. In the Civil Rights Act of 1991 itself, Congress stated that one of the statute’s “purposes” was “to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs … and in the other Supreme Court decisions prior to Wards Cove …” (my emphasis). And to operationalize that purpose, Congress added an entire subsection to Title VII laying out how disparate impact claims operate and incorporating the language of Griggs. If a plaintiff shows that a particular employment practice has discriminatory effects, Congress said, the employer must then “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”

In other words, Congress did not “acquiesce” to Griggs. It doubled down.

But, despite Congress’ clear words to the contrary, OLC relies on Callais to try to undo all of that. It argues that disparate impact law, dating back to 1971, needs to be “update[d]” to eliminate constitutional concerns, just as Callais purported to “update” voting rights law. Specifically, it quotes Callais to argue that Title VII’s disparate impact prohibition is unconstitutional under the 14th Amendment’s equal protection clause unless it is limited to situations that “give rise to an objectively ‘strong inference’ of intentional discrimination.” Based on OLC’s updated interpretation, employment practices need only be “reasonably related to the achievement of some legitimate goal” to be valid because that reasonable relationship” necessarily “dispels an inference” of discriminatory intent.

Moreover, OLC specifically identifies “aptitude tests” and “knowledge-based tests” as “presumptively job-related.” Under this standard, of course, Griggs would have come out the other way. In other words, OLC is arguing both for overruling the key holding of Griggs and for eviscerating the central provision of the 1991 Civil Rights Act that codified that holding. It is arguing that Congress has no power to legislate against race discrimination in the very way Congress expressly chose to do so.

And just as Callais and Allen will make protecting minority voting rights all but impossible, OLC’s analysis, if adopted by the courts, could actually encourage employers to adopt or keep in place tests and screening mechanisms that have a disparate impact on minorities. In a footnote, OLC asserts that “racial or ethnic diversity cannot be a legitimate business goal that defeats a disparate-impact challenge to a facially neutral policy.” The implications of this position are astonishing. Imagine an employer who is deciding which test or screening criteria to use in hiring employees. If it chooses one with a less disparate impact on minorities, in part for that reason, has it then violated Title VII? After all, white plaintiffs could claim that the chosen test has a disparate impact on them – or that any consideration of disparate impact on minorities has this effect and may even rise to the level of intentional discrimination. Those outcomes are not what Title VII says or what Congress intended, but they may well be what OLC demands is required.

What Callais’ impact means for how we think about Constitutional Law

There is much more (and in my opinion, nothing good) to say about how the OLC opinion, if adopted by the Supreme Court, would undermine both congressional power and longstanding law. But I want to zoom out a bit here. Callais is only one of numerous cases in which this court has dramatically changed the law or appears about to do so. Whether one celebrates or condemns those cases, that fact is undeniable.

But that fact also should remind us that these new holdings are not necessarily permanent. As I’ve argued elsewhere, change in constitutional law is nothing new. (Think Plessy v. Ferguson and Brown v. Board of Education.) That’s not to understate the deeply destructive nature of many of this court’s decisions and the significant harm they inflict on real people. Nor is it to understate the very long time horizons and massive political and social mobilization involved in constitutional change, nor the fact that the court’s appalling voting and election law jurisprudence may well extend those timeframes and require even more intense efforts. The point is simply this: constitutional law is changing dramatically. It can change again.

These pleas for congressional action serve as a reminder that the Supreme Court doesn’t necessarily have the final say on an issue. Congress can avoid the potential consequences or limit the impact of an unpopular ruling by updating the statute the decision addressed or passing a new law. Research into statutory responses to Supreme Court decisions shows that such congressional undertakings were once common, although the practice has fallen off considerably since about 1998.

And, of course, Congress can also propose a constitutional amendment in response to a ruling. However, the proposal won’t become part of the Constitution until it’s approved by at least two-thirds of the House and Senate and ratified by at least 38 states.

But being able to do something is not the same thing as doing it, and Congress has faced a torrent of criticism claiming that it isn’t doing much of anything these days. In 2025, Congress “hit new lows for productivity,” casting just 362 votes, “the second-lowest count in the last quarter century,” according to The New York Times. And the 118th Congress, which served from Jan. 3, 2023, to Jan. 3, 2025, enacted just 274 laws, “the fewest since the Civil War,” per a Wall Street Journal analysis.

In this era of inaction, it’s unlikely that Congress will respond to Louisiana v. Callais or any other of this term’s rulings. But Congress responded to the Supreme Court’s decisions in the past, including after major cases on race and religion. Here are three of the most important examples of Congress “overruling” the court.

The 13th and 14th Amendments

In 1857, the Supreme Court decided Dred Scott v. Sandford, and its ruling is often described as the worst in Supreme Court history. The court held that Dred Scott, an enslaved man who spent time in free territory, was not free; that African Americans, whether enslaved or free, were not and could not be citizens; and that the Missouri Compromise, which addressed where Americans could own slaves, was unconstitutional.

The decision came as the country was wrestling with the future of slavery, and, indeed, the Civil War began just four years later. While the war was still ongoing, Congress passed the 13th Amendment, which outlawed slavery in the United States. It was ratified by December 1865, about eight months after Confederate General Robert E. Lee admitted defeat.

The next year, Congress passed the 14th Amendment, which guarantees citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.” It also bars states from “depriv[ing] any person of life, liberty, or property, without due process of law” or denying “equal protection of the laws” to any person. It took just over two years for three-fourths of states to ratify this amendment, according to the National Archives, and it became part of the Constitution in July 1868.

Together, the 13th and 14th Amendments overturned Dred Scott by ending slavery and requiring equal treatment of African Americans. However, as the National Archives points out, it took many additional lawsuits, pieces of legislation, and executive branch actions for these Americans to actually enjoy the protections outlined in the 14th Amendment.

The Religious Freedom Restoration Act

As noted above, Congress doesn’t always have to amend the Constitution to minimize the impact of a ruling. In some cases, it can undo or circumvent a Supreme Court decision with a new statute, as it did in 1993 with the Religious Freedom Restoration Act.

RFRA was Congress’ response to the court’s 1990 ruling in Employment Division v. Smith, a case that centered on two men, Alfred Smith and Galen Black, who had ingested peyote during a Native American Church ceremony. As a result of using the drug, the men were fired from their jobs at a private drug rehabilitation organization. Then, they were denied unemployment benefits from the Employment Division of Oregon’s Department of Human Resources, because applicants who had been fired for work-related misconduct were ineligible for such benefits.

Smith and Black sued the Employment Division, contending that the First Amendment barred the state from treating their religious practice as misconduct. They won before the Oregon Court of Appeals and Oregon Supreme Court, but the U.S. Supreme Court ultimately held, in an opinion by Justice Antonin Scalia, that Oregon had not violated the First Amendment by enforcing its controlled substances law, which prohibited peyote possession and use.

In the ruling, the court abandoned the compelling interest test it had previously used in free exercise cases, which required the government to show that the law that had interfered with a religious practice served a compelling purpose and that this purpose could not be achieved through some other, less restrictive means. Smith meant that, moving forward, the free exercise clause would offer no protection from “a neutral, generally applicable law,” meaning a law that applies to everyone and does not target a specific faith group.

Critics of the Smith decision claimed that it would force people of faith to navigate unintended consequences of what in the eyes of a judge would be neutral, generally applicable policies. After Smith, these religious individuals would no longer be able to win exemptions to such laws through First Amendment challenges, and would, instead, need to rely on legislators to respond to their concerns.

The outcry from religious organizations was so intense that Congress quickly took action. By the summer of 1990, Congress was already considering legislation that would restore the compelling interest test in free-exercise cases. RFRA ultimately passed with near-unanimous support three years later, after being slowed down by a debate over whether it should include a carveout preventing religious freedom challenges to abortion restrictions, as I previously reported for the Deseret News.

The text of RFRA includes a brief discussion of its purpose – and criticism of the Smith ruling. That decision, lawmakers wrote, “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” even though “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Under RFRA, people of faith regained the ability to challenge any law that burdened their religious practice; at which point the government is required to show that offering a religious exemption to the challenged policy would undermine its purpose.

However, the story of RFRA is also a story about how sometimes Congress doesn’t get the last word. In 1997, the Supreme Court in City of Boerne v. Flores held that RFRA did not apply to state actions, meaning that Congress ultimately only succeeded in “overruling” Smith as applied to federal laws.

Lilly Ledbetter Fair Pay Act

A more recent example of congressional action in response to a controversial ruling unfolded just under two decades ago, after the Supreme Court in 2007 considered a sex discrimination lawsuit over unequal pay for men and women doing the same work. The case, Ledbetter v. Goodyear Tire & Rubber Co., featured Lilly Ledbetter, who spent 19 years working for Goodyear Tire and learned near the end of her time there that she was being paid less than men in her same position.

After retiring in 1998, Ledbetter sued the company for violating Title VII of the Civil Rights Act of 1964, which outlaws discrimination in the workplace on the basis of sex. A jury awarded Ledbetter more than $3 million, but, as Anastasia Boden noted in a column this month for SCOTUSblog, “an appellate court overturned that ruling after finding her claims to have been brought too late.”

In its 2007 ruling, the Supreme Court affirmed the U.S. Court of Appeals for the 11th Circuit, agreeing that Ledbetter had not filed her claim in time. The clock, according to Justice Samuel Alito, who wrote the majority opinion, did not reset every time Ledbetter received a paycheck. It had started when the salary decision was made.

Justice Ruth Bader Ginsburg wrote a dissenting opinion, which was joined by three other justices. In it, she contended that the court had “overlook[ed] common characteristics of pay discrimination.” Such discrimination is not immediately evident, Ginsburg explained, because “[p]ay disparities often occur, as they did in Ledbetter’s case, in small increments.” She further argued that the ruling was “totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.” Ginsburg concluded by calling on Congress to take action. “[T]he ball is in Congress’ court,” she wrote. “[T]he Legislature may act to correct this Court’s parsimonious reading of Title VII.”

Ledbetter ran with this idea and met with congressional leaders to urge them to take action. Less than two years after the court released its decision in May 2007, Congress in January 2009 passed the Lilly Ledbetter Fair Pay Act, which amended Title VII, as well as related statutes, to clarify that the time limit for challenging unequal pay and other unlawful practices resets “each time compensation is paid.” Ledbetter told the Birmingham News as she prepared to go to the signing ceremony that she was “thrilled” the law passed.

The court and Congress

These days, high-profile rulings sometimes prompt lawmakers to introduce related legislation, but these measures often seem more like messaging bills, rather than serious proposals. For example, after recent decisions on abortion rights and presidential immunity from prosecution, Democrats pushed legislation that would undo the consequences of those decisions. But these were not bipartisan measures, and they stood little chance of making it through the deeply divided legislative branch.

Unless lawmakers embrace opportunities for compromise – and Congress wakes up from its current slumber – the court is unlikely to face such a direct response from Congress again anytime soon.

At the Court

On Tuesday, the court released its opinions in five cases: Cisco Systems, Inc. v. Doe I, Exxon Mobil Corp. v. Corporación Cimex, S.A., Landor v. Louisiana Department of Corrections and Public Safety, Pung v. Isabella County, Michigan, and Blanche v. Lau.

• In Cisco, the court held that the Alien Tort Statute only allows foreigners to bring lawsuits in U.S. courts alleging serious violations of international law based on the small group of claims Congress likely had in mind when it passed the ATS. It also held that the Torture Victim Protection Act does not allow lawsuits for aiding and abetting torture. Justice Amy Coney Barrett wrote the majority opinion, and Justice Sonia Sotomayor wrote a dissenting opinion, joined in part by Justices Elena Kagan and Ketanji Brown Jackson.
• In Exxon Mobil, the court, by a vote of 6-3, held that the Helms-Burton Act trumps the sovereign immunity of Cuban agencies and instrumentalities, and thus plaintiffs who sue those agencies or instrumentalities under the act need not also satisfy one of the Foreign Sovereign Immunities Act’s enumerated exceptions. Justice Brett Kavanaugh wrote the majority opinion, and Kagan wrote a dissenting opinion, joined by Sotomayor and Jackson.
• In Landor, the court, also by a 6-3 vote, held that Damon Landor’s lawsuit against prison officials who shaved his head cannot proceed because state employees may not be held liable in their personal capacities under the Religious Land Use and Institutionalized Persons Act of 2000 unless they voluntarily and knowingly consented to answer such private suits. Justice Neil Gorsuch wrote the majority opinion, and Jackson wrote a dissenting opinion, joined by Kagan and Sotomayor.
• In Pung, the court unanimously held that the proper baseline for measuring “just compensation” following a fairly conducted tax sale is the auction sale price, not the property’s hypothetical fair market value. Justice Samuel Alito wrote for the court, and his opinion was joined in full by every justice except Justice Clarence Thomas, who joined it in part and wrote an opinion concurring in part and concurring in the judgment.
• In Lau, the court again split 6-3 in holding that federal immigration law does not require a border officer to have clear and convincing evidence that a lawful permanent resident has committed a crime involving moral turpitude before declining to admit that person into the country. Thomas wrote the majority opinion, and Jackson wrote a dissenting opinion, joined by Sotomayor and Kagan.

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

After opinion announcements on Thursday, the justices will meet in a private conference to discuss cases and vote on petitions for review.

Morning Reads

Former Oklahoma death row inmate has a new trial set for a 1997 killing of motel owner

Associated Press

Former Oklahoma death row inmate Richard Glossip returned to court on Tuesday, approximately 15 months after the Supreme Court overturned his conviction and one month after he was released from incarceration. “Glossip had been sentenced to death for the January 1997 killing in Oklahoma City of motel owner Barry Van Treese, his former boss,” after a trial that included testimony from Glossip’s co-defendant Justin Sneed, who “agreed to testify against Glossip to avoid the death penalty himself,” according to the Associated Press. In overturning Glossip’s conviction, the Supreme Court held “that prosecutors allowed Sneed to give testimony about his mental health history that they knew was false, and said it violated Glossip’s constitutional right to a fair trial.” On Tuesday, a state judge addressed a request from Glossip’s attorneys “to consider whether there is enough evidence to retry him,” and “ruled that a new trial would start Sept. 28.” The state “is not pursuing the death penalty again.”

A Former Reagan Official on an “Unprincipled” Supreme Court

Jesse Wegman, Major Questions with Jesse Wegman

For his Substack, Jesse Wegman interviewed Don Ayer, who clerked for Justice William Rehnquist when he was an associate justice and then went on to serve in the Reagan and George H.W. Bush administrations as principal deputy solicitor general and deputy attorney general, about his frustrations with the current court and which potential reforms might be most effective. Ayer contended that the 6-3 conservative supermajority has been “unprincipled” in its effort to overturn established precedents and has embraced originalism as “a sort of cudgel to be used selectively to support answers that otherwise defy common sense.” Ayer further argued that recent decisions overturning precedent have weakened trust in the government and suggested that term limits and “clear ethical rules that are independently enforceable by the judicial council or its designee” would help repair the damage.

Some senators want more grandstanding at the Supreme Court

The Washington Post Editorial Board (paywalled)

The Washington Post Editorial Board has come out against the bipartisan Cameras in the Courtroom Act, which would require the Supreme Court to televise its “open proceedings” and “which passed the Senate Judiciary Committee last week on a voice vote.” The board asserted that such a requirement would change the Supreme Court – and not for the better. “Just look at Congress. Members give speeches for the cameras and social media, rather than trying to persuade their colleagues.” With cameras in the courtroom, the “incentives for grandstanding – snappy sound bites, sick burns, witty repartee – would increase exponentially. The incentive for persuasion would decline.”

On Site

Opinion Analysis

Court rules former Louisiana inmate cannot sue prison officials in religious dispute over long hair

The court on Tuesday ruled in Landor v. Louisiana Department of Corrections that a Louisiana man cannot sue prison officials who shaved his head even after he showed them a copy of a court ruling that allowed him to keep his long hair for religious reasons. By a vote of 6-3, the justices agreed with the prison officials that a federal law intended to protect the religious rights of prisoners does not authorize Damon Landor’s lawsuit seeking damages from the officials.

Opinion Analysis

Supreme Court limits ability of foreigners to bring lawsuits for violations of international law

In a Tuesday ruling, the court made it far more difficult for foreigners to bring lawsuits in U.S. courts alleging serious violations of international law. In an opinion by Justice Amy Coney Barrett, the justices ruled that a 1789 law, the Alien Tort Statute, on which plaintiffs have relied to bring such cases, only allows lawsuits based on the very small group of such claims that Congress allowed for when it passed the law. The court also ruled that the Torture Victim Protection Act, a 1991 law that permits suits against individuals who subject others to torture while acting on behalf of a foreign government, does not allow lawsuits for aiding and abetting torture.

Opinion Analysis

Court rules for Exxon Mobil in Cuban confiscation case

The court ruled in Exxon Mobil v. Corporación Cimex that a lawsuit by Exxon Mobil against Cuban state-owned companies for the confiscation of assets owned by subsidiaries of the oil giant’s predecessor can go forward. Writing for the majority, Justice Brett Kavanaugh explained that the Helms-Burton Act cancels the immunity that the Cuban government and its companies would normally have, so that plaintiffs seeking to rely on that statute to sue them are not required to satisfy an exception to the Foreign Sovereign Immunities Act.

Opinion Analysis

Justices reject constitutional attack on foreclosure rules

Tuesday’s decision in Pung v. Isabella County squarely rejects an argument that longstanding use of tax foreclosure sales as a method to collect unpaid real-estate taxes violates the takings clause of the Fifth Amendment or the excessive fines clause of the Eighth Amendment.

Opinion Analysis

Court sides with government in dispute over rights of green card holders accused of committing a crime

The court in Blanche v. Lau cleared the way for immigration officers to more freely deny lawful permanent residents – also known as green card holders – admission into the U.S. By a vote of 6-3, the court, in an opinion from Justice Clarence Thomas, held that federal immigration law does not require border officers to have “clear and convincing evidence” that green card holders have committed a disqualifying crime before preventing them from reentering the country for an indefinite stay.

A Closer Look

Clerk to Justice?

Six of the nine current justices clerked at the Supreme Court before becoming justices, and three of those six (Chief Justice John Roberts, along with Justices Ketanji Brown Jackson and Brett Kavanaugh) succeeded the very justices whom they clerked for.

But let’s break that down a bit.

After graduating from Harvard Law School, Roberts first clerked for Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit (considered by some to be the greatest judge of his era). He then served as a clerk for (then associate) Justice William Rehnquist during the 1980-81 term. Approximately 25 years later, President George W. Bush nominated Roberts to fill the vacancy of retiring Justice Sandra Day O’Connor – but when Chief Justice Rehnquist died in September 2005, Bush withdrew that nomination and re-nominated Roberts to his seat – meaning Roberts succeeded his mentor.

Justice Elena Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit before serving as a clerk for Justice Thurgood Marshall during the 1987-88 term. Kagan has described Marshall as demanding a great deal from his clerks, but, according to her, he gave his time and knowledge generously to them in return. (Marshall’s nickname for her was “Shorty.”)

Justice Neil Gorsuch has the distinction on the court of having clerked for two Supreme Court justices. Although hired to clerk for Byron White, White retired in June 1993 and Gorsuch thus also clerked for Justice Anthony Kennedy – whom he came to (briefly) serve on the court with. (Gorsuch also clerked for Judge David B. Sentelle on the D.C. Circuit.)

Kavanaugh clerked for Judge Walter Stapleton of the U.S. Court of Appeals for the 3rd Circuit and for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. After this, he (like Gorsuch) clerked for Kennedy during the 1993-94 term. When Kavanaugh was confirmed to the Supreme Court in 2018, Kennedy thus became the first justice to have two former clerks on the court.

Justice Amy Coney Barrett clerked for Judge Laurence H. Silberman on the D.C. Circuit before doing so for Justice Antonin Scalia during the 1998-99 term. During her Scalia clerkship, Barrett recalled, the late justice would host a dinner at his home once during the year, a practice she now shares with her own clerks. Barrett’s fellow Scalia law clerks apparently called her “the Conenator” (a cross between her maiden name and “The Terminator” character) for “destroying flimsy legal arguments.”

Finally is Jackson, who served as a clerk for Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts and Judge Bruce M. Selya of the U.S. Court of Appeals for the 1st Circuit. She then clerked for Justice Stephen Breyer during the 1999-2000 term. Jackson has called her Breyer clerkship “an extraordinary gift,” and before assuming her spot on the bench, said she was “daunted by the prospect of having to follow in his footsteps.”

The clerk-to-justice pipeline wasn’t always a thing. Indeed, having clerked at the Supreme Court is a relatively recent, although by no means new, trend for justices. White was the first to have done so when he clerked for Chief Justice Fred Vinson in 1946. From there, Rehnquist clerked for Justice Robert Jackson; Justice John Paul Stevens clerked for Justice Wiley Rutledge; and Breyer clerked for Justice Arthur Goldberg. They were followed by the other six on the current bench.

Roberts is the first justice to have directly replaced his former mentor. But, as noted above, Gorsuch is the first justice to have served with the person he clerked for – and at Gorsuch’s swearing-in, Kennedy became the first sitting justice to swear in one of his former clerks to serve alongside him.

SCOTUS Quotes

“We recognize, as does the dissent … that [these types of] cases frequently involve heinous and inhumane acts. The political branches or other international actors may well provide redress. But we decline to distort the statutory text or the Constitution’s allocation of powers to enlist U. S. courts in that project.”

— Justice Amy Coney Barrett in Cisco Systems, Inc. v. Doe I  (2026)

“The Court’s decision today is yet another notch in its belt, unabashedly remaking the law in its preferred image.”

— Justice Sonia Sotomayor, dissenting, in Cisco

Justice Ketanji Brown Jackson dissented, in an opinion joined by Justices Sonia Sotomayor and Elena Kagan. Jackson asserted that the court’s opinion undermines “the benefits and security that come with having a green card” and wrote that she is worried that the court has “handed the Government a massive blank check” to put lawful permanent residents in “immigration limbo.”

The case stemmed from a June 2012 encounter between immigration officers and Muk Choi Lau, a Chinese citizen and lawful permanent resident of the United States who, one month earlier, had been charged under New Jersey law for allegedly selling nearly $300,000 worth of counterfeit shorts. Under the Immigration and Nationality Act, lawful permanent residents such as Lau are typically admitted into the country – that is, allowed to enter and stay indefinitely – after a short trip abroad. They are only to be treated as “seeking an admission” under a few exceptions, such as when they have “committed” “a crime involving moral turpitude” – that is, a dishonest or immoral act, such as fraud or theft. Because of this exception, immigration officers paroled Lau rather than admitting him. He could enter the U.S. to face prosecution, but the officers deferred consideration of his eligibility for admission.

One year later, Lau pleaded guilty to trademark counterfeiting, and he was convicted and sentenced to two years’ probation. The Department of Homeland Security then began removal proceedings on the ground that Lau’s conviction made him ineligible for admission under the INA. Lau fought his removal, contending that he had been “improperly classified” by immigration officers in June 2012 and should have been admitted, which would have forced the government to treat him as a lawful permanent resident and seek to remove him on the ground that he was deportable.

An immigration judge and the Board of Immigration Appeals rejected that argument, but the U.S. Court of Appeals for the 2nd Circuit agreed with Lau. Immigration officers, the 2nd Circuit held, must have “clear and convincing” evidence that a disqualifying crime has been committed to decline to admit a lawful permanent resident into the country, and the immigration officers considering Lau’s reentry did not.

On Tuesday, the Supreme Court vacated the 2nd Circuit’s decision, holding that border officers do not need to meet the “clear and convincing evidence” standard to treat a lawful permanent resident who has been charged with a crime of moral turpitude as a candidate for admission. “Nothing in the INA imposes” that burden, Thomas wrote in the nine-page majority opinion. It came, instead, “from inapposite Board of Immigration Appeals precedent.”

That BIA precedent, Thomas continued, addressed the evidence the government must have during a removal hearing, not during an encounter at the border. He rejected Lau’s assertion “that the Government ‘expressly’ conceded” that this evidence standard applied at the border, explaining that the government had made that concession only with regard to removal proceedings. The court was also unconvinced, Thomas explained, by Lau’s claim that a lawful permanent resident cannot be found to have committed a crime involving moral turpitude until he is convicted of such a crime. “A straightforward reading of the text contradicts Lau’s interpretation,” Thomas wrote, because “the Government may regard a lawful permanent resident as seeking admission as soon as he ‘committed a’ crime involving moral turpitude ‘even if (as in [Lau’s] case) the conviction occurred’ later.”

“We decline to read into the INA an additional clear-and-convincing-evidence burden on border officers entrusted with making ‘quick judgments on the spot’ when that burden is nowhere in the statute or even Board precedent,” Thomas concluded.

In her 17-page dissent, Jackson argued that the “text, structure, and context” of the INA should have led the court to a different conclusion. “[U]nder the plain terms of the statute,” she wrote, the government has “no discretion” to deny a lawful permanent resident admission into the country when it does not yet have evidence to justify that decision. “[T]he removal hearing—which can come months, or even years, after the LPR is demoted to ‘seeking an admission’ status and paroled in—is too late for the Government to carry its burden,” according to Jackson.

Jackson emphasized what was at stake for lawful permanent residents, asserting that “[a] demotion to the status of ‘seeking an admission’ is not costless,” because it makes it possible for them to “be immediately detained or paroled.” “The downsides of detention are obvious,” Jackson continued, and parole can also lead to “serious negative repercussions,” including a loss of one’s permanent green card and the ability to work.

“It is a fundamental maxim in our country that all are innocent until proven guilty,” Jackson wrote. And yet, “Lau was divested of his already-admitted status, deemed an applicant for admission, and paroled solely on the basis of” an indictment. “Congress could not have meant for the guarantees” afforded to lawful permanent residents “to be so cavalierly swept aside,” Jackson concluded.

Tuesday’s decision in Pung v. Isabella County squarely rejects an argument that the longstanding use of tax foreclosure sales as a method to collect unpaid real-estate taxes violates the takings clause of the Fifth Amendment or the excessive fines clause of the Eighth Amendment.

The specific problem that gives rise to the case is the reality that a tax foreclosure sale typically, perhaps invariably, produces a sale price far lower than the price that would come from the ordinary sale process of listing the property with a broker and marketing it over the course of weeks (or months). In this case, for example, Michael Pung’s home was auctioned to recover about $2,200 in unpaid real-estate taxes. The home, with an assessed value of about $194,000, sold at the auction for about $76,000. Under the existing regime, Pung received the surplus – the difference between the sale price and the amount of taxes. Pung’s claim is that the state also owes him the difference between $194,00 and $74,000 as compensation, even though the state sold the property to a third party at the sale and has nowhere other than general tax revenues from which to recover that sum.

Justice Samuel Alito wrote for the court, joined by all of the justices except Clarence Thomas. Alito starts by considering the takings problem, which he describes as “whether ‘just compensation’ [required by the takings clause] following a tax sale is measured by the price that the property fetched at auction or its hypothetical fair market value.” For the court, “the auction price is the proper baseline, at least when the procedure is fair in light of our country’s history of tax sales.”

Alito then briskly recounts the lengthy history, with examples dating to “the time of Magna Carta,” “the early days of the Republic,” and “later in the 19th century,” demonstrating that “for hundreds of years, English and American Law have allowed the seizure and sale of property as a tax-collection method, provided that the government return any surplus proceeds to the debtor”—“nothing less, and nothing more.” Applied to Pung’s challenge then, “[t]he baseline for measuring just compensation in the tax-sale context is … the sale price, not the property’s hypothetical fair market value.”

Reprising points that he emphasized at the argument, Alito emphasizes the practical realities that protect the taxpayer from loss in this context:

[I]f the owner believes that the fair market value of the property exceeds the taxes that are due, the owner may be able to avoid foreclosure by refinancing the property or using the property as collateral for a new loan … Or the owner may be able to sell the property … himself before foreclosure, pay off the tax debt, and keep what is left … Here, the Pungs had years to take these steps and avoid foreclosure. … They failed to do so.

Alito also describes the “unprecedented burdens” that Pung’s arguments “would impose … on jurisdictions that wish to collect unpaid taxes.” One possibility is that in an effort “to obtain something like fair market value for homes on which they have foreclosed, jurisdictions would have to … either shoulder the burden of selling the property themselves or employ a real estate agent. In the meantime, local governments would have to do without the unpaid taxes and bear the costs and risks that go with the ownership of unoccupied homes.” Alternatively, jurisdictions that “proceeded with traditional tax-sale procedures” often would face “a net loss” under Pung’s theory, as “[t]he government would be on the hook for any difference between the foreclosed property’s fair market value and the tax-sale price,” typically being (as here) multiples of the proceeds received at the tax sale.

In the end, Alito explains, the court’s “task … is not to decide whether tax sales as historically conducted represent good public policy. Our authority is limited to deciding whether the Takings Clause requires the transformation Pung advocates, and the answer to that question is clear.”

Alito also devotes a few paragraphs to rejecting Pung’s claim that the local government’s “failure to compensate him for the fair market value of his property constituted an excessive fine.” On that point, he notes that “[f]orfeiture of property can be a ‘fin[e]’ for purposes of the Eighth Amendment if it serves ‘in part to punish.’” He explains that the court always “has consulted historical practice” in examining that question and then concludes that the historical practice that defeats the just compensation claim suffices for this point as well: “So, like his Fifth Amendment claim, Pung’s Eighth Amendment claim lacks historical or precedential support.”

The case is unlikely to make any great jurisprudential splash, as it validates what has been a common practice of all levels of government in this country for almost three centuries. Perhaps more notable is the concurrence of Justice Clarence Thomas, joined in part by Justice Neil Gorsuch. He makes two points, the first of which is the conclusion that the Michigan courts erred under Michigan law in concluding that Pung in fact owes any taxes – a question neither presented to nor decided in the lower court. Second, he concludes that the takings clause obligated the government first to sell Pung’s personal property before proceeding to sell the land that was the subject of the unpaid taxes. Neither of those points resonated with other members of the court.

The case began when Isabella County foreclosed on the home owned by Michael Pung’s late nephew, Timothy, for whose estate Pung served as the executor. The state contended (although Pung disputed) that he owed $2,200 in taxes. After the house was sold at auction for $76,000, Pung received the difference between that price and the taxes owed. The buyer later sold it again for much more, and Pung contended that he was entitled to receive approximately $192,000 – the difference between the second sale price (which he says was the fair market value) and the taxes that he owed.

Pung argued that the county’s failure to pay him that larger amount violated both the Fifth Amendment’s takings clause (which bars the government from taking private property for public use without paying “just compensation”) and the Eighth Amendment’s ban on excessive fines. The U.S. Court of Appeals for the 6th Circuit rejected his argument, and on Tuesday, the Supreme Court largely agreed.

In his 12-page opinion, Alito emphasized that, “for hundreds of years, English and American law have allowed the seizure and sale of property as a tax-collection method, provided that the government return any surplus proceeds to the debtor. Our Nation’s history and this Court’s precedent thus establish the principle that when the government seizes and sells property to collect a tax debt, the owner is entitled to the surplus sale proceeds—nothing less, and nothing more.”

Alito noted that in the Supreme Court, Pung had argued that the procedures that the county used to sell the home were unfair. Although “the parties appear to agree that a jurisdiction might violate the Constitution if it employs blatantly unfair procedures, such as by conducting a sham sale or needlessly delaying a tax sale while real estate prices crashed,” they did not agree “on what constitutes a fair process.” The justices declined to resolve this question themselves, instead sending the case back to the 6th Circuit for it to consider them.

The Supreme Court on Tuesday ruled in Exxon Mobil v. Corporación Cimex that a lawsuit by Exxon Mobil against Cuban state-owned companies for the confiscation of assets owned by subsidiaries of the oil giant’s predecessor can go forward.

Writing for the majority, Justice Brett Kavanaugh explained that the Helms-Burton Act, a federal law passed in 1996, cancels the immunity that the Cuban government and its companies would normally have, so that plaintiffs seeking to rely on that statute to sue them are not required to satisfy an exception to the Foreign Sovereign Immunities Act, a federal law that generally prohibits lawsuits in U.S. courts against foreign governments and their “agencies and instrumentalities.” “Stacking an FSIA requirement on top of the Helms-Burton Act would thwart Congress’s design and directly contravene the President’s foreign policy judgments,” Kavanaugh wrote.

Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, dissented. She argued that “[n]othing in the text or ‘architecture’ of the Helms-Burton Act suggests that Congress abrogated the sovereign immunity of these defendants—much less that it did so with the requisite unmistakable clarity.”

The law at the center of the case was the Cuban Liberty and Democratic Solidarity Act, also known as the LIBERTAD Act or the Helms-Burton Act. It 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.” It also 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.

On the same day that the Trump administration ended the suspension, Exxon filed the case in federal court in Washington, D.C., seeking more than $1 billion. It contended that three Cuban-owned companies violated the Helms-Burton Act by trafficking in confiscated property that Exxon owned – specifically, by (among other things), extracting, importing, and refining crude oil and operating service stations using property that Exxon’s subsidiaries had possessed but the Cuban government had confiscated in 1960.

The Cuban companies urged U.S. District Judge Amit Mehta to dismiss the case, arguing that it was barred by the FSIA. Mehta ruled that the Helms-Burton Act does not itself overcome the immunity normally conferred by the FSIA. But, he concluded, one of the exceptions to that immunity – for lawsuits involving “commercial activity” in the United States – did apply to one of the Cuban companies because of its operation of gas stations in Cuba that process money transfers from U.S. residents to Cuba and sell products imported from the United States.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed that the FSIA generally bars lawsuits against Cuban state-owned companies in U.S. courts. In an opinion by Chief Judge Sri Srinivasan, the court sent the case back to the lower court for it to take another look at whether the commercial-activity exception applies – namely, whether the Cuban company’s money transfers and sales of U.S. goods at its gas stations have effects in the United States “and whether the effects are sufficiently ‘direct.’”

Exxon appealed to the Supreme Court, which granted review last year. On Tuesday, the justices reversed.

In his 22-page opinion, Kavanaugh emphasized that “one Congress cannot bind another—meaning that a later Congress always may repeal or modify an old law, or enact a new law that is exempt from the old law. In 1996, when Congress passed the Helms-Burton Act, Congress was free to directly abrogate the foreign sovereign immunity of Cuban agencies and instrumentalities, thereby overriding the FSIA.”

That is exactly what it did, Kavanaugh concluded. First, he wrote, Congress in the Helms-Burton Act indicated that it intended to eliminate immunity under the FSIA. The law creates a right to sue that “expressly applies against Cuban agencies and instrumentalities”: it “explicitly confers a private right of action for any U. S. national whose ‘property’ was ‘confiscated by the Cuban Government’” to sue “any person that … traffics in” that property. And the law defines “person” broadly, Kavanaugh noted, “to include ‘any agency or instrumentality of a foreign state.’” 

Second, Kavanaugh continued, “Congress does not ordinarily enact self-defeating statutes.” The Helms-Burton Act was intended to provide a remedy for U.S. nationals whose property had been seized, he wrote, but the Cuban companies’ theory would “largely negate” that remedy. It would rarely, if ever, be possible for plaintiffs to also satisfy one of the exceptions to the FSIA, Kavanaugh posited, because the Helms-Burton Act “codified a comprehensive economic embargo against Cuba and barred most commercial interactions between Americans and Cubans.”

Third, Kavanaugh pointed to the fact that, for purposes of jurisdiction, lawsuits brought under the Helms-Burton Act fall under a different provision of federal law than lawsuits brought under the FSIA. The Helms-Burton Act classifies such lawsuits as covered by the provision that “allows civil actions to proceed in federal court whenever they arise ‘under the Constitution, laws, or treaties of the United States,’” while lawsuits under the FSIA are governed by the provision that gives federal district courts the power to hear lawsuits against foreign countries. In making this distinction, Kavanaugh concluded, “Congress made clear that actions under the Helms-Burton Act are not actions under the FSIA.”

Fourth and finally, Kavanaugh suggested that the president’s power to suspend lawsuits under the Helms-Burton Act “based on current security and foreign policy assessments” is analogous to the scheme that was in place for foreign sovereign immunity before the FSIA was enacted in 1976, under which decisions about immunity were “the province of the Executive Branch.” “It is not plausible,” Kavanaugh wrote, “to conclude that Congress, in the Helms-Burton Act, in essence reinstated the pre-FSIA immunity regime while simultaneously subjecting suits under the Act to the FSIA.”

In her dissent, Kagan countered that whether the Cuban-owned companies are immune from lawsuits in U.S. courts “depends on whether an FSIA exception is met.” The majority’s contrary conclusion, she said, rests “on the ground that a different law, the Helms-Burton Act, abrogates (in nonlegal speak, eliminates) the immunity that the FSIA may otherwise grant. The problem for the majority is that the bar for finding” that Congress has repealed the general presumption of immunity in the FSIA “is high,” Kagan said: “Congress must make its intent to abrogate ‘unmistakably clear in the language of the statute.’” But Congress has failed to do so here, Kagan concluded. As an initial matter, she noted, nothing in the text of the Helms-Burton Act says anything about repealing sovereign immunity. And Congress knew how to do so when it wanted to: in another provision of the Helms-Burton Act, Congress amended the FSIA’s rules governing a different kind of immunity (regarding when property owned by the Cuban government can be seized to carry out judgments).

Kagan also expressed skepticism about Kavanaugh’s assertion that Congress must have intended to repeal immunity under the FSIA, because plaintiffs would never be able to satisfy any of that law’s exceptions. Indeed, she observed, Exxon may have shown in this case that the FSIA’s commercial-activity exception applies: the district court had ruled that it did apply to one of the Cuban companies because of its operation of gas stations in Cuba that process money transfers from U.S. residents to Cuba and sale of products imported from the United States.

The Supreme Court on Tuesday made it far more difficult for foreigners to bring lawsuits in U.S. courts alleging serious violations of international law. In an opinion by Justice Amy Coney Barrett, the justices ruled that a 1789 law, the Alien Tort Statute, on which plaintiffs have relied to bring such cases, only allows lawsuits based on the very small group of claims that Congress likely had in mind when it passed the law. The court also ruled that the Torture Victim Protection Act, a 1991 law that allows suits against individuals who subject others to torture while acting on behalf of a foreign government, does not allow lawsuits for aiding and abetting torture.

Barrett acknowledged “that ATS and TVPA cases frequently involve heinous and inhumane acts” for which “[t]he political branches or other international actors may well provide redress. But,” she wrote, “we decline to distort the statutory text or the Constitution’s allocation of powers to enlist U.S. courts in that project.”

In a dissent joined in part by Justices Ketanji Brown Jackson and Elena Kagan, Justice Sonia Sotomayor contended that Tuesday’s ruling “closes the courthouse doors not just to” the plaintiffs in this case, but also “to virtually every future litigant seeking redress for a violation of international law under the ATS.” “The Court’s decision today is yet another notch in its belt,” she argued, “unabashedly remaking the law in its preferred image.”

Cisco Systems v. Doe was one of a series of cases over the last 46 years seeking to rely on the ATS. The first such case was filed in 1980 in New York by a Paraguayan doctor, Joel Filártiga, and his daughter, Dolly. They contended that a former Paraguayan police official now living in New York, Americo Peña-Irala, had kidnapped their family member and tortured him to death in retaliation for Joel’s political activities and opposition to the Paraguayan government. The U.S. Court of Appeals for the 2nd Circuit allowed the family’s lawsuit to go forward, reasoning that torture violates the law of nations.

Since then, other plaintiffs have also sought to rely on the ATS to bring lawsuits in U.S. courts seeking compensation for human-rights abuses that occurred overseas. These plaintiffs sought to sue both foreign government officials for the violations themselves and corporations for their role in aiding and abetting those alleged violations.

When the issue has come to the Supreme Court in the past, plaintiffs have not found a receptive audience. Instead, the court has repeatedly limited the scope of the ATS. In 2004, in Sosa v. Alvarez-Machain, the court ruled that the ATS itself only gives courts the power to hear cases; it does not, standing alone, provide a cause of action. When the ATS was enacted, the court reasoned, Congress would have expected it to apply only to a “narrow set of violations of the law of nations” – violations of safe-passage guarantees, violations of an ambassador’s rights, and piracy – that could have had serious effects on the United States’ relations with other countries. In the modern era, the court warned, claims under the ATS should go forward only if they both are widely accepted as a violation of international norms and can be defined as specifically as those three 18th-century wrongs. In 2013, in Kiobel v. Royal Dutch Petroleum Co., the court held that claims under the ATS must be based on conduct that occurs in the United States. And in Jesner v. Arab Bank, in 2018, the court ruled that foreign corporations cannot be sued under the ATS.

The plaintiffs in Cisco Systems are practitioners of the Falun Gong religion, which began in China in the 1990s. In 1999, the Chinese government designated groups associated with the religion as illegal. The Chinese Communist Party and Chinese security officials sought to develop a massive online surveillance system, known as the “Golden Shield,” to find Falun Gong practitioners.

The plaintiffs allege that using the Golden Shield technology, the Chinese government identified them as Falun Gong practitioners. That, they say, led to their detention and human rights abuses in China that included torture, forced labor, beatings, and forced conversions. They contend that Cisco and two of its top officials aided and abetted those abuses by helping the Chinese government to create and maintain the Golden Shield. The Chinese plaintiffs relied on the ATS to bring their lawsuit in the U.S., while a U.S. plaintiff relied on the Torture Victim Protection Act.

Cisco has denied the allegations. It says that it complied fully with U.S. export control regulations and that it only sold the Chinese government “off-the-shelf networking equipment” “that it did not customize.”

The U.S. Court of Appeals for the 9th Circuit allowed the plaintiffs’ aiding-and-abetting claims to go forward. Over a dissent by seven judges, the en banc 9th Circuit – which, because that court is so large, consists of only a subset of all of the judges on the court – declined to reconsider the case.

On Tuesday, the Supreme Court reversed. The Supreme Court’s decision in Sosa, Barrett said, indicated both that the ATS is “strictly jurisdictional” and that “courts have narrow authority to create causes of action under it” – stances that “are in obvious tension with one another.” Moreover, she added, “asserting such authority would intrude on both Congress’s” power to create rights to sue “and the power of the political branches to direct the Nation’s foreign policy.”

Indeed, Barrett suggested, virtually any new cause of action under the ATS likely would “have detrimental foreign policy consequences.” That includes cases like this one, she said, involving defendants who are U.S. citizens, because courts will still normally have “to examine allegations of heinous acts committed by foreign nations or individuals.”

As a result, Barrett stressed, the court in Sosa “consciously designed a test that would be extremely difficult to meet.” And in the intervening years since then, the Supreme Court more broadly has “firmly committed to the view that” Congress, rather than the courts, should create a right to sue.

Given these limitations, Barrett wrote, the Supreme Court has never actually created a right to sue under the ATS, and it now holds “that courts may not create new causes of action for violations of international norms.” Although foreign plaintiffs can still bring claims for the original three violations of international law recognized in Sosa, she emphasized, there are no others. This means, she concluded, that the plaintiffs’ claims against Cisco and its officials for aiding and abetting human rights abuses by the Chinese government cannot go forward.

Nor, Barrett continued, can a claim under the TVPA for aiding and abetting torture go forward. Barrett pointed to the Supreme Court’s 1994 decision in Central Bank of Denver v. First Interstate Bank of Denver, in which the court ruled that a provision of the Securities Exchange Act of 1934 did not create civil liability for aiding and abetting. The court’s ruling in that case, Barrett said, rested on Congress’ failure to “expressly” provide for it when it had done so elsewhere. “The TVPA nowhere mentions aiding-and-abetting liability, and that silence is enough to settle the issue,” Barrett concluded.

In her 27-page dissent, Sotomayor contended that the majority’s opinion “overrules Sosa, without even acknowledging that it is doing so. Today’s decision,” she wrote, therefore “marks yet another low point in this Court’s esteem for its precedents.” The ruling, she continued, also will preclude victims of human rights abuses from bringing lawsuits in U.S. courts for “almost any claimed violation of international law under the ATS,” including “torture,” “forced labor,” and “genocide.”

Sotomayor pushed back against Barrett’s suggestion that recognizing new ATS claims will always have negative foreign policy effects. “This case,” she wrote, “disproves” that theory. The federal government, she observed, “confirmed in this very case that ‘the United States [has] long condemned China’s treatment of Falun Gong practitioners,’ and has sanctioned Chinese officials for ‘gross violations of human rights,’ including ‘particularly severe violations of religious freedom.’”

Finally, Sotomayor wrote that the majority “also errs by ignoring the plain meaning of the Torture Victim Protection Act of 1991 … and slamming the door completely shut to claims by U. S. citizens against those who aid and abet torture.”

Jackson wrote separately, in a brief opinion joined by Kagan, to note that she agreed with the majority that aiding-and-abetting claims cannot go forward under the TVPA because the law’s reference to someone who “subjects” the plaintiff to torture does not extend to aiding-and-abetting liability. But she rejected the majority’s reliance on Central Bank of Denver, arguing that it did not “creat[e] a ‘magic words’ test for aiding-and-abetting liability generally.” Jackson (and Kagan) joined Sotomayor’s interpretation of the ATS in her dissent.

The Supreme Court on Tuesday ruled in Landor v. Louisiana Department of Corrections that a Louisiana man cannot sue prison officials who shaved his head even after he showed them a copy of a court ruling that allowed him to keep his long hair for religious reasons. By a vote of 6-3, the justices agreed with the prison officials that a federal law intended to protect the religious rights of prisoners does not authorize Damon Landor’s lawsuit seeking damages from the officials.

Writing for the majority, Justice Neil Gorsuch wrote that under the Constitution’s spending clause (pursuant to which the federal law protecting such religious rights was enacted), “Congress’s power to spend money does not include the power to regulate. Spending Clause statutes can bind only those who voluntarily and knowingly undertake obligations by agreement with the federal government” – an “essential element” missing from Landor’s case.

Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, dissented. She argued that, as a result of the majority’s ruling, “[p]risoners like Landor who suffer violations of their religious freedom in state prisons—no matter how blatant—will often be left remediless. And encroachments on prisoners’ statutory rights are likely to happen with fair frequency, as state-empowered prison officials will have little incentive to abide by federal law, even if it is handed to them on a piece of paper.”

The haircut at the center of the dispute took place in December 2020, when Landor, with three weeks left in his sentence, was transferred to the Raymond Laborde Correctional Center. Landor is a devout Rastafarian who, as part of his faith, had grown his hair for nearly 20 years without cutting it. During his time in two previous prisons, he had been allowed to keep his hair long or under a “rastacap.”

When Landor arrived at the RLCC, he told the prison guard conducting the inmate intake procedures that he was a practicing Rastafarian, and he gave the guard a copy of a ruling by a federal appeals court holding that Louisiana’s policy of cutting Rastafarians’ hair violates the Religious Land Use and Institutionalized Persons Act, as well as federal and state provisions regarding religious accommodations for Rastafarians. The guard took the papers from Landor, threw them in the trash, and called the warden. When the warden arrived, he ordered corrections officers to take Landor to another room, where they handcuffed him to a chair and held him down while his head was shaved bald.

Landor went to federal court in Louisiana in 2021, relying on a provision of RLUIPA that allows individuals to bring lawsuits against the government and government officials for “appropriate relief.” But the lower courts threw out his lawsuit, holding that RLUIPA does not allow private individuals to bring claims for money damages.

Landor then appealed to the Supreme Court, which agreed last summer to review his case. On Tuesday, the court upheld the ruling by the U.S. Court of Appeals for the 5th Circuit in favor of the prison officials.

In his 18-page opinion for the majority, Gorsuch explained that Congress enacted RLUIPA pursuant to its power under the spending clause, which gives it the power to spend money to provide for the “general Welfare of the United States.” But although that power allows Congress to put conditions on the funds that it distributes, Gorsuch reasoned, it can only impose sanctions – other than terminating the funds – for violations of those conditions if the recipients of the funds have knowingly and voluntarily consented to those sanctions.

In this case, Gorsuch continued, the Louisiana Department of Corrections “does not dispute that it is a recipient of federal funds” and “that it has agreed” to be sued by private plaintiffs under RLUIPA “as a condition of accepting those funds.” But Landor does not contend that the prison officials who are the defendants in his lawsuit have “voluntarily and knowingly consented to answer private suits under RLUIPA,” Gorsuch noted, and therefore his lawsuit against them cannot go forward. Gorsuch wrote, for example, that it did not matter that the prison officials received paychecks from the Louisiana Department of Corrections, which in turn received federal funding, so that they “should be deemed to have implicitly consented to RLUIPA liability.”

Accepting such an argument, Gorsuch suggested, would give Congress “an effectively unbridled police power,” allowing it to regulate a private individual’s conduct as long as that person received some money from the recipient of federal funds who had consented to a condition. This would, Gorsuch said, allow Congress to “require coaches at universities that receive federal funds to permit transgender athletes to play women’s sports” or “bar doctors at medical practices that accept federal funds from administering certain vaccines to children” – with the prospect that they could face lawsuits if they did not comply with those conditions.

Gorsuch also rebuffed Landor’s invocation of the Constitution’s necessary and proper clause, which gives Congress the power to use “necessary and proper” means to carry out its other powers outlined in the Constitution. Applying that provision, Landor (and Jackson in her dissent) reasoned, Congress could allow prisoners to sue individual prison officials even if they did not specifically consent because doing so would be “necessary and proper” to carry out RLUIPA’s goal of protecting religious freedom. That theory, Gorsuch countered, focuses on the wrong question, which “is not … whether a personal-capacity cause of action is incidental to RLUIPA’s policy protecting religious exercises” but “instead … whether their proposed cause of action is a necessary and proper incident to Congress’s constitutionally enumerated power to spend money” – which, Gorsuch concluded, it is not.

In her 29-page dissent, Jackson argued that Tuesday’s decision imposed a “novel consent requirement.” “On the majority’s view,” she wrote, “no matter how clearly Congress speaks, all that matters is the response it elicits: Spending Clause legislation may not make anybody liable without their express consent. And because prison officials (as opposed to their state-prison employers) have not directly accepted federal funds, they have not consented to being sanctioned for their failure to follow federal law.”

In establishing such a rule, Jackson contended, Gorsuch’s opinion “jettisons ‘a long line of this Court’s precedents.’ We have lived for decades,” she said, “in a world in which Congress has been able to use its spending power to reach beyond direct recipients of federal funds. And it has done so repeatedly.”

Plus, today is expected to be an opinion announcement day at the Supreme Court. We will be live blogging beginning at 9:30 a.m. EDT.

At the Court

On Monday, the court added a case to its 2026-27 oral argument docket, reimposed the conviction of the man found to have killed Etan Patz, and denied several noteworthy cases. For more on Monday’s order list, see the On Site section below.

The court has also identified Thursday as an opinion day. We will be live blogging that morning beginning at 9:30 a.m. EDT.

After opinion announcements on Thursday, the justices will meet in a private conference to discuss cases and vote on petitions for review.

Morning Reads

Judges Jockey for Potential Trump Supreme Court Appointment

Jacqueline Thomsen, Bloomberg Law

Although it is unknown when or if President Donald Trump will have the opportunity to appoint another justice to the Supreme Court, some judges appear to be positioning themselves as attractive candidates while their friends “quietly push[] those in Trump’s orbit for their preferred judges to be considered if a seat were to open up,” according to Bloomberg Law. “The only people who would be considered, I think, would be a Trump-appointed judge, and the Trump-appointed judges are going to have their contacts in the administration,” said John Malcolm, a conservative lawyer with Advancing American Freedom. Citing people “familiar with” the conversations, Bloomberg Law reported that U.S. Solicitor General John Sauer and Judge Andrew Oldham of the U.S. Court of Appeals for the 5th Circuit are among those that “have been discussed as potential candidates for the Supreme Court.”

She got eight years for plotting to kill Justice Kavanaugh. Prosecutors want more.

Dan Morse, The Washington Post (paywalled)

In October 2025, Sophie Roske was sentenced to eight years in prison for plotting to assassinate Justice Brett Kavanaugh. Roske, who “was named Nicholas Roske at birth and raised as a boy” but now identifies as a woman named Sophie, had brought a gun to Kavanaugh’s house but then “abandoned her attack plan,” walked away, and called the police, according to The Washington Post. After Roske pleaded guilty, Justice Department officials sought a sentence of at least 30 years, and they’re now challenging U.S. District Judge Deborah Boardman’s eight-year sentence, which stemmed, in part, from the judge’s belief that a terrorism enhancement to the sentence was never “intended to apply equally across all terrorism cases.” Boardman emphasized that “Roske acted alone, was not part of any terrorist organization, did not have a manifesto, and ultimately decided against committing violence and self-reported.” “To Boardman, Roske’s actions didn’t track many other terrorism defendants, and Roske should benefit from her lack of past criminal history.”

An explosive appeal from Trump over E. Jean Carroll sexual abuse verdict stalls at the Supreme Court

John Fritze and Kara Scannell, CNN

Late last year, President Donald Trump asked the Supreme Court to consider his effort “to overturn a federal jury’s finding that he sexually abused and defamed magazine columnist E. Jean Carroll.” The justices were set to consider his petition for review for the first time at one of their private conferences in February, but they rescheduled it. And over the past four months, they’ve rescheduled it 14 more times. “Only one other has been rescheduled as often in the current term, according to a CNN analysis” – that case “involves a housing police officer in Ohio who shot and killed a suspect who was fleeing with a gun in his hand.” CNN noted that the Supreme Court “almost never explains its handling of pending appeals and has not done so in the Carroll case. The delay could be because one or more justices is writing an opinion about the case. Or the court could be waiting for other appeals involving the Trump and Carroll dispute that are expected soon.”

Alabama nitrogen gas ruling could reverberate beyond state

Ralph Chapoco, Alabama Reflector

This month, a federal district court in Alabama barred the state “from carrying out nitrogen gas executions” after death-row inmate Jeffery Lee raised Eighth Amendment concerns, and a federal appeals court and the Supreme Court declined to put that order on hold. “The decisions at three levels of the federal judiciary make future adoptions of nitrogen gas uncertain and raise questions about the potential expansion of firing squads, which only four other states employ,” according to the Alabama Reflector. Currently, five states allow for nitrogen gas execution, but only two states – Alabama and Louisiana – have “conducted an execution with it.”

On Site

Court News

Supreme Court agrees to hear case on the ability to sue federal officials

The court on Monday added one new case to its docket for the 2026-27 term, involving the ability to sue federal officials for violating constitutional rights even when there is no law specifically authorizing such a claim. The announcement came as part of a list of orders released from the justices’ June 18 conference. The justices will meet for another conference – the final regularly scheduled conference before their summer recess – on Thursday.

Court News

Court reimposes conviction of man found to have killed Etan Patz

Also on Monday, the court threw out a lower-court ruling that called for a new trial for the man convicted of the 1979 kidnapping and murder of Etan Patz, one of the first missing children to be featured on milk cartons. In a 10-page, unsigned opinion, the court emphasized that federal courts can only grant post-conviction relief if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law.”

Court News

Justices issue orders on murder-for-hire case involving social media influencer, the role of race in seizing persons, and the execution of a Texas man claiming to be intellectually disabled

Over a dissent by Justice Samuel Alito, the court sent the case of a Texas woman convicted of hiring someone to commit murder back to the lower court for another look. And its denial of review in two other criminal cases drew written dissents – one from Alito, joined by Justice Clarence Thomas, in a case involving the role of race in whether someone has been “seized” for purposes of the Fourth Amendment, and another by the court’s three Democratic appointees in the case of a Texas man who – with the state’s support – was seeking a new proceeding to determine whether he is intellectually disabled and cannot be executed.

Court News

Supreme Court declines to hear several important cases, including on voting rights and the environment

In Monday’s order list, the court also announced that it had denied several notable petitions for review, including cases involving voting rights, the environment, and a trademark dispute involving a company founded by NBA superstar LeBron James. It also asked for the federal government’s views in challenges to a state bar association’s allocation of leadership positions and an Oregon reporting requirement for prescription drug makers.

Court News

Texas asks court to leave in place age-verification and parental-consent law on apps

On Monday afternoon, Texas urged the Supreme Court to leave in place an order by the U.S. Court of Appeals for the 5th Circuit that allows the state to enforce a law that imposes age-verification and parental-consent requirements on minors’ access to apps and paid content within those apps. The state’s solicitor general, William Peterson, emphasized that “the modern digital world is different” from the physical world, and that the law is required because, in the digital world, children can access “any conceivable content without parental consent or even parental knowledge.”

Opinion Analysis

Court determines federal defendants’ appellate waivers unenforceable if a miscarriage of justice would result

On Thursday in Hunter v. United States, the Supreme Court held that a federal defendant’s waiver of appellate review is unenforceable if it would result in a miscarriage of justice. Although the court did not decide whether enforcing defendant Munson Hunter’s appellate waiver in his case would constitute a miscarriage of justice, the majority described the circumstances where this standard would be met as “rare” and involving “extreme cases.”

Contributor Corner

Hemani: proving the reason, not just naming it

In her Ratio Decidendi column, Stephanie Barclay reflected on the court’s ruling in United States v. Hemani, a case that she believes showed “what can unite an otherwise fractured bench.” All of the justices agreed that the “government cannot disarm a person simply by naming a permissible reason. ... What it must do is prove that the permissible reason it names is the reason it acts on, and to tie that reason to the person it seeks to disarm.”

SCOTUS Outside Opinions

A victory for the defendant in United States v. Hemani, but little guidance for the lower courts

In a column for SCOTUSblog, Joel Johnson emphasized the confusion that likely will follow in the wake of United States v. Hemani. “The court deemed that prosecution inconsistent with the Second Amendment.” “But,” according to Johnson, “the most revealing thing about the court’s opinion may be what it never admits – that the real issue with [Ali] Hemani’s prosecution was a statute so vague that no one can say whom it covers.”

A Closer Look

Separate Writings

Since we are in the heart of opinion season, we thought it would be helpful to revisit past Closer Looks related to the court’s decision-making process. A version of this piece was originally published on March 16.

During her remarks at the Library of Congress on Thursday, March 12, Justice Amy Coney Barrett shed light on a question that sometimes comes up on Supreme Court opinion days, including on Feb. 20, when the court released its tariffs ruling: How does a justice decide when to write a separate opinion?

The tariffs case raised this question because it included not only the majority opinion by Chief Justice John Roberts and the principal dissent by Justice Brett Kavanaugh, but also five other separate writings. Barrett and Justice Neil Gorsuch, who joined the majority opinion in full, each wrote a concurring opinion. Justice Elena Kagan wrote an opinion concurring in part and concurring in the judgment, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Jackson wrote her own solo opinion concurring in part and concurring in the judgment. And although Justice Clarence Thomas (along with Justice Samuel Alito) joined Kavanaugh’s dissent, he also wrote his own solo dissent.

The concurrences and dissents in the tariffs case called to mind an earlier era in Supreme Court history when separate writings were not just common but expected. For roughly the first decade of its existence, the court would resolve cases with seriatim opinions – that is, a collection of separate opinions from the justices, rather than a single opinion of the court. Once these opinions were published, “the lawyers would have to count the justices to try to figure out what propositions of law did the majority support and which propositions were dictum” (not essential to the decision and therefore not establishing a precedent), according to Justia.

Chief Justice John Marshall, who served from 1801 to 1835, convinced his colleagues to end this practice and instead come together behind a single opinion of the court. During her Thursday remarks, Barrett reflected on the significance of this change, noting that Marshall also persuaded his colleagues to forgo all separate writing in most cases. “Concurrences and dissents were actually quite rare, which I think is part of what enabled him to establish the court’s strength,” Barrett said.

Today, separate writings are relatively common, although the court is nowhere near a return to the seriatim approach. During the 2024-25 term, there were 50 concurring opinions and 48 dissenting opinions written, in addition to the 67 opinions of the court.

At the Library of Congress event, Barrett was asked by Judge Robert M. Dow., Jr., who is counselor to the chief justice and who interviewed Barrett on stage, about how she decides when to write separately. Barrett explained that sometimes it’s not her choice, because the most senior justice in the group of dissenters can assign dissents to her. When it’s up to her, Barrett said, she will only write separately for a few key reasons.

“I try not to write [separate opinions] too frequently. I kind of like the way John Marshall said seriatim opinions are out. I generally try to just let the majority opinion speak for the court,” she said. “But sometimes I will write a concurrence or my own dissent if I have something that I feel like I should explain, something about my position that I feel like warrants explanation so that it doesn’t look inconsistent. If I don’t join the full opinion,” Barrett continued, “I usually write to say why. And if I feel like I have something to say that would add to the development of the law, something that I hope that lawyers and other courts will think about or that law professors might help us by writing about or doing some research in, that’s the situation in which I will write a concurrence.”

“I try to resist the temptation to write one because I feel like I could have said what the majority said better,” Barrett added.

SCOTUS Quote

MS. MIZNER: “Many people have more than – have multiple cell phones. …”

CHIEF JUSTICE ROBERTS: “Really? What is – what is your authority for the statement that many people have multiple cell phones on their person?”

MS. MIZNER: “Just observation. But –“

JUSTICE SCALIA: “You've observed different people from the people that I've observed.”

(Laughter.)

MS. MIZNER: “That's probably true.”

— United States v. Wurie (2014)

The state’s solicitor general, William Peterson, emphasized that “the modern digital world is different” from the physical world, and that the law is required because, in the digital world, children can access “any conceivable content without parental consent or even parental knowledge.”

The Texas Legislature enacted the law at the center of the case, known as the App Store Accountability Act or SB 2420, last year. Before the law could go into effect on Jan. 1, 2026, it faced challenges in federal court in Austin, Texas, from two different sets of plaintiffs: a group known as Students Engaged in Advancing Texas, which says that its members “use mobile apps to teach other kids how to get involved in policymaking,” as well as two teenagers who use apps for art and journalism; and the Computer and Communications Industry Association, a trade group that represents (among others) app stores and app developers.

In December 2025, U.S. District Judge Robert Pitman temporarily barred the state from enforcing the law. But on June 4, the U.S. Court of Appeals for the 5th Circuit paused Pitman’s orders. It ruled that Pitman was likely wrong when he applied the most stringent constitutional test, known as strict scrutiny, to the law. “At most,” the court of appeals wrote, “SB2420 regulates speech that ‘proposes a commercial transaction,’ which is subject to intermediate scrutiny,” a less demanding standard. That test, the court of appeals explained, requires Texas to “establish a ‘reasonable fit’ between its goal and corresponding restrictions.” And Texas can do so, the court of appeals concluded: “Requiring age verification, parental consent, and app-related content ratings likely directly and materially advances Texas’s substantial interest in protecting children’s data, safety, and privacy in a digital world.”

The challengers last week asked the Supreme Court, on its interim docket, to reinstate Pitman’s orders. The students argued that the 5th Circuit’s decision “would render virtually the entire internet—not to mention the distribution of every book, newspaper, magazine, movie, or record album—‘commercial speech’ the government could more readily ban, restrict, edit, or compel. That is clearly wrong.” Moreover, they added, Texas already shields children from accessing adult content online; the law’s stated goal of protecting them “from ‘accessing harmful or inappropriate content’ … is not a valid government interest.” And the CCIA contended that the 5th Circuit’s decision subjects “app stores and millions of app developers to potential liability” and “enormous and unrecoverable compliance costs.”

In its brief on Monday, Texas echoed the 5th Circuit’s contention that Pitman had applied the wrong standard to determine that SB 2420 likely violates the First Amendment, using strict scrutiny when he should have used intermediate scrutiny. SB2420, the state continued, “readily survives” that test “because it serves the purpose of empowering parents to control their children’s upbringing by deciding which software applications their children should access and to which contractual terms their children should agree.”

Pitman’s orders are also barred, Texas added, by the Supreme Court’s 2025 ruling in Trump v. CASA, holding that so-called “nationwide” or “universal” injunctions likely exceed a district court’s power. The orders in this case, Texas stressed, “bar the Attorney General from enforcing S.B. 2420 against anyone, not just the” challengers, and therefore fall within the injunctions covered by CASA.

The challengers will have the opportunity to file replies to Texas’ brief. Once those are submitted, the court could act on their requests at any time.

The announcements came as part of a list of orders released from the justices’ June 18 conference. The justices will meet for another conference – the final regularly scheduled conference before their summer recess – on Thursday, June 25. The court is likely to release orders from that conference on Monday, June 29, at 9:30 a.m. EDT.

The court denied review without comment in several noteworthy cases:

• RMS of Georgia v. EPA, a challenge to an EPA rule governing the phasedown of hydrofluorocarbons, the common refrigerants used in air conditioners and refrigerators.
• Arkansas United v. Thurston, in which the court had been asked to decide whether private individuals can enforce Section 208 of the Voting Rights Act, which allows voters to receive help if they are blind, disabled, or cannot read or write; it arises as part of a challenge to a state law that bars anyone other than election officials from helping more than six voters.
• Game Plan v. Uninterrupted IP, a dispute over the rights to the phrase “More Than an Athlete,” between Game Plan, a Maryland charity, and Uninterrupted IP, a media company co-founded by LeBron James. The court denied review in this case without requiring Uninterrupted IP, which won in the lower court, to file a response, suggesting that it was not seriously considering the petition for review.

Also on Monday the court called for the views of the U.S. solicitor general in Saadeh v. New Jersey State Bar Association, a challenge by a lawyer who describes himself as “a Palestinian and Muslim leader in the state bar” to the bar association's practice of reserving leadership positions for members of specific minority groups – positions, he says, for which he is not eligible.

A state appeals court upheld the practice under the First Amendment. “Compelling the Association to alter or eliminate its program to ensure diversity in its leadership … would significantly burden the expression of its views,” the lower court wrote.

Saadeh came to the Supreme Court in February, asking the justices to weigh in. “Illegal discrimination,” he told them, “does not become a constitutional right when the discriminator discriminates in the name of ‘diversity.’”

Opposing review, the bar association argued that Saadeh does not have a legal right to sue, known as standing, and it questioned the premise of his argument, telling the justices that the bar association’s “leadership-selection process has changed. Now, every at-large seat is open through multiple paths.” But in any event, it concluded, the lower court’s decision is correct.

In Pharmaceutical Research and Manufacturers of America v. O’Day, the justices also asked the solicitor general for the government’s views on a challenge by a pharmaceutical trade group to the constitutionality of an Oregon law requiring prescription drug makers to report information about some prescription drug prices to the state, which will generally post it on a website.

There is no deadline for the solicitor general to file his briefs in response to the court’s requests.

The court did not act on several high-profile petitions for review that it considered for the first time last week. Those petitions included:

• A trio of cases challenging voting restrictions in Arizona, including a requirement of proof of citizenship to vote for president or by mail. The U.S. Court of Appeals for the 9th Circuit upheld a lower-court ruling that struck down the restrictions.
• A case about whether parents have a right to challenge laws in Washington State that allow runaway teens to receive mental health care and treatment (including “as to ‘gender transitions’”) at licensed shelters without parental consent.

The court’s actions came as part of a list of orders released from the justices’ June 18 conference. The justices will meet for another conference – the final regularly scheduled conference before their summer recess – on Thursday, June 25. The court is likely to release orders from that conference on Monday, June 29, at 9:30 a.m. EDT.

In Grayson v. United States, the court sent the case of Ashley Grayson, a Texas-based social-media influencer convicted and sentenced to 10 years in prison for hiring someone to kill a rival influencer, back to a federal appeals court for it to reconsider its earlier ruling in light of the government’s concession that the lower court applied the wrong rule.

The government’s case against Grayson relied heavily on a FaceTime call between Grayson and an aspiring influencer, Olivia Johnson. Unbeknownst to Grayson, Johnson had recorded the call, in which she asked for an advance on the murder that Grayson had solicited her to commit (but which Johnson never tried to go forward with).

Grayson tried to bar prosecutors from using the recording of the call. She argued that the Federal Wiretap Act, which both makes it illegal to “intentionally intercept” an electronic communication and prohibits the use of illegally intercepted communications as evidence at trial.

The trial judge in Grayson’s case allowed prosecutors to use the recording under an exception known as the “clean hands” rule. The U.S. Court of Appeals for the 6th Circuit upheld that ruling. It pointed to a 1995 ruling in which that court held that “[d]espite the fact that the recordings were illegally intercepted, we held that suppression is not warranted in a criminal prosecution where the ‘government played no part in the unlawful interception.’”

Grayson went to the Supreme Court, where she argued (and the federal government agreed) that there is no “clean hands” exception to the Federal Wiretap Act and that the 6th Circuit’s rule is at odds with the decisions of other courts of appeals.

The government nevertheless urged the justices either to deny review or to send the case back to the lower court for another look. U.S. Solicitor General D. John Sauer told the court that there is no need for it to intervene because the issue that Grayson has asked them to review rarely arises. “This case,” Sauer wrote, “appears to be the first in 30 years in which either the” 6th Circuit “or any district court in that circuit has applied” the 1995 ruling’s “clean hands” exception. And in any event, Sauer added, the application of the “clean hands” rule might not ultimately affect the outcome of Grayson’s case – for example, because it isn’t clear whether the recording was illegally obtained in the first place.

In a brief, unsigned order, the court sent the case back to the court of appeals. Alito penned a one-paragraph dissent from that disposition of the case in which he contended that even if the 6th Circuit applied the wrong rule, that error didn’t make a difference. “Even setting aside the FaceTime recording,” Alito wrote, “a mountain of properly admitted evidence proved” Grayson’s “guilt.”

The court also on Monday declined to hear the case of Donte Carter, who was charged and convicted of eight counts related to his possession of a gun. Police in Washington, D.C., found the gun when they approached a group of men gathered outside. In response to a question from an officer, Carter lifted his shirt to show the police that he did not have a gun in his waistband; an officer then asked him to “hik[e]” his pants up, which he did. At that point, another officer noticed an L-shaped bulge in Carter’s groin area. When police frisked Carter, they found a gun.

Carter sought to have the gun and a statement that he made to the police after it was discovered excluded from the evidence used against him on the ground that it violated the Fourth Amendment’s bar on unreasonable seizures.

The trial judge rejected Carter’s argument, but the District of Columbia Court of Appeals – D.C.’s highest court – reversed that ruling and threw out his convictions. Writing for the court, Senior Judge Eric Washington framed the issue at the center of the case as whether Carter was “seized” for purposes of the Fourth Amendment when the police officer asked him to raise his pants. And that in turn, Washington wrote, hinged on whether a reasonable person in his place “would have ‘felt free to terminate’ the interaction and ‘go about their business.’”

Washington acknowledged that it was a “close case,” but he ultimately concluded that the officers’ conduct had been “coercive” and that this effect would have been exacerbated by the fact that Carter is Black. “Given the facts of this case,” Washington said, “we believe that such apprehension would have led an objective and reasonable Black man in Mr. Carter’s shoes to feel as though he had to comply with the officers’ demands rather than terminating the encounter.” Because police officers did not have reasonable suspicion or probable cause to seize Carter, Washington indicated, they violated the Fourth Amendment – and both Carter’s gun and his subsequent statement to police should not have been admitted.

The federal government – which is responsible for prosecuting crimes in D.C. – asked the Supreme Court to weigh in, calling the lower court’s ruling “deeply flawed.” The inquiry into whether Carter was seized, Sauer wrote, “‘does not vary with the state of mind of the particular individual being approached.’” Moreover, he added, the ruling “threatens to seriously hinder law enforcement in the Nation’s capital.”

Carter urged the court to deny review. More than 45 years ago, he said, the Supreme Court indicated that race is “not irrelevant” in determining whether a young Black woman “‘reasonably’ would ‘have felt unusually threatened by the officers, who were white males.’” Moreover, he added, the lower court in his case “expressly held that ‘any reasonable person’—not just an objectively reasonable Black man—'would be fearful of failing to cooperate under these circumstances.’”

Over an Alito dissent joined by Thomas, the justices turned down the government’s request to weigh in. Alito wrote that he “would grant the petition” for review. Stressing that the Constitution “‘almost never’ allows government actors to treat persons differently based on their race,” Alito contended that “[i]t is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups.”

And in Saldaño v. Texas, Justice Sonia Sotomayor – joined by Justices Elena Kagan and Ketanji Brown Jackson – dissented from the court’s decision not to grant relief to a Texas man who was convicted of murder and sentenced to death in 1996.

When the state attempted to set an execution date in 2021, Victor Saldaño argued (among other things) that he was intellectually disabled and therefore could not be executed under the Supreme Court’s 2002 ruling in Atkins v. Virginia. In 2024, both the state’s experts and Saldaño’s own experts agreed. Saldaño filed an application for post-conviction relief in state court and asked the Texas Court of Criminal Appeals – the state’s highest court for criminal cases – to send the case back to the trial court for it to rule on his Atkins claim.

When the TCCA declined to do so, Saldano and the state both asked the Supreme Court to send the case back for consideration of this. In a brief, unsigned order on Monday, the court rejected that request.

In her dissent, Sotomayor stressed that the court’s ruling “not only does a profound disservice to Saldaño, who now might be executed without any court ever determining whether he is, in fact, intellectually disabled,” but also “severely undermines the State’s interest in ensuring the legitimacy of its criminal system.”

In a brief, separate order on Monday in Newberry v. Texas, the court sent the case of Michael Newberry, who was convicted and sentenced to life in prison for a 1996 robbery and murder, back to the TCCA for another look.

The state had agreed with Newberry that, as a result of the prosecutors’ failure to provide key evidence, Newberry had not received a fair trial, and the state trial court recommended that he get a new trial.

The TCCA rejected that recommendation in a brief, unsigned order, writing only that Newberry had “not met his burden to prove that he is entitled to relief.”

Newberry came to the Supreme Court in January, asking the justices either to reverse the TCCA’s decision without additional briefing or oral argument or to take up the case and hear argument.

In its filing in the Supreme Court, the state echoed Newberry’s contention that the TCCA’s “decision cannot stand.” Although it “recogniz[ed]” the TCCA’s “critical duty to exercise independent judgment, the State of Texas believes that the TCCA’s unreasoned and unprecedented decision upsets the public’s interest in ordered justice and further denies” Newberry “the due process he was deprived of nearly thirty years ago.”

On Monday, however, the justices returned Newberry’s case to the lower court “for further consideration in light of the position asserted by Texas” in its brief.

The justices did the same in the case of Jeffrey Busby, who was sentenced to 40 years in prison for selling 2.84 grams of methadone. On appeal, he argued that testimony against him by a forensic drug analysis specialist who had simply reviewed another analyst’s work violated his right under the Sixth Amendment to confront the witnesses against him.

Mississippi agreed that the testimony violated the Constitution, but it said that any error was harmless. The Mississippi Supreme Court rejected the state’s position and ruled that there was no constitutional violation.

Busby came to the Supreme Court in February, asking the justices to summarily reverse the state supreme court’s decision. The state contended that the court “should summarily vacate the Mississippi Supreme Court’s judgment and remand for further proceedings” – which the justices did on Monday.

The announcement came as part of a list of orders released from the justices’ June 18 conference. The justices will meet for another conference – the final regularly scheduled conference before their summer recess – on Thursday, June 25. The court is likely to release orders from that conference on Monday, June 29, at 9:30 a.m. EDT.

In 1979, 6-year-old Etan Patz disappeared while on his way to the school bus stop in New York City. He was never found. Patz’s case was among those that led to the creation of the National Center for Missing and Exploited Children.

Pedro Hernandez was convicted of kidnapping and murdering Patz in 2017. The trial relied on Hernandez’s confession, which he had first made after approximately seven hours of police questioning – during which he was not advised of his right under the Supreme Court’s 1966 decision in Miranda v. Arizona to remain silent and have an attorney present. Police officers then provided Hernandez with a Miranda warning, after which he confessed again on video – the confessions that prosecutors used at Hernandez’s trial.

While the jury was deliberating, it asked the judge whether it should “disregard” Hernandez’s confessions after he received his Miranda warning if it concluded that his confessions before those warnings were not “voluntary.”

After the judge responded “the answer is no,” the jury deliberated for another week. It eventually convicted Hernandez of felony murder and kidnapping; he was sentenced to 25 years to life in prison.

After Hernandez’s initial appeals were unsuccessful, he sought post-conviction relief in federal court. He pointed to a 2004 case, Missouri v. Seibert, in which the Supreme Court held that a confession repeated after a suspect was interrogated without a Miranda warning, confessed, and then given a Miranda warning should be suppressed.

The U.S. Court of Appeals for the 2nd Circuit “agree[d] with the district court that the state trial court’s instruction was clearly wrong under Seibert.” Moreover, the court of appeals concluded, that “error was manifestly prejudicial” to Hernandez. The court sent the case back to the district court for it to order Hernandez’s release or a new trial.

The state came to the Supreme Court in December, asking the justices to weigh in. The Supreme Court, it argued in McCarthy v. Hernandez, “has never held that Seibert’s ruling on pretrial suppression extends to jury deliberations.” “Nor,” it contended, “was there any basis to believe … that the jury was even asking about ‘the infrequent case’ covered by Seibert, because their note referred only to a potential Miranda violation, and not to the ‘deliberate’ strategy to evade Miranda that is the indispensable prerequisite for suppression.” Moreover, the state added, requiring a new trial nearly a half-century after Patz’s disappearance will impose “severe costs” and pose “daunting difficulties.”

Hernandez countered that the 2nd Circuit’s ruling “was based on the straightforward application of this Court’s precedent to the ‘extraordinary circumstances of this case.’” He emphasized that, “aside from those purported confessions, there is no evidence linking Hernandez to the disappearance of Patz or even confirming that Patz is deceased.”

In a 10-page, unsigned opinion on Monday, the court revived Hernandez’s conviction and sentence. It began by emphasizing that federal courts can only grant post-conviction relief if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law.” But in this case, the court said, it was not clearly established under federal law that the trial court needed to instruct the jury in Hernandez’s case about whether it could disregard his confession. And the rule established in Seibert, the court continued, did not apply to “a jury’s consideration of a confession that a court has admitted.”

Moreover, the court added, “[t]he panel’s opinion appears to reflect serious doubt about the reliability of Hernandez’s confessions, but” the federal law governing post-conviction relief for state prisoners “does not allow a federal habeas court to disturb a state-court conviction based on such an evaluation of the evidence.”

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson indicated, without explanation, that they would have denied the state’s petition.

The announcement came as part of a list of orders released from the justices’ June 18 conference. The justices will meet for another conference – the final regularly scheduled conference before their summer recess – on Thursday, June 25. The court is likely to release orders from that conference on Monday, June 29, at 9:30 a.m. EDT.

More than 50 years ago, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that a private individual could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages. In 1980, in Carlson v. Green, the justices allowed the mother of a prisoner who died after prison staff failed to provide adequate treatment for his asthma attack to sue those employees under Bivens. Since then, however, the court has repeatedly rejected efforts to rely on Bivens, explaining (among other things), that the case should not apply in a “new context.”

In Nielsen v. Watanabe, the Supreme Court granted the federal government’s request to weigh in on whether an inmate can rely on Bivens to sue prison officials for violating his constitutional rights. Kekai Watanabe contends that his coccyx was fractured in a fight, but prison officials did not send him to the hospital and refused several requests for medical treatment.

The U.S. Court of Appeals for the 9th Circuit allowed Watanabe’s lawsuit to go forward, pointing to Carlson.

Francis Nielsen, the staff nurse whom Watanabe sued, came to the Supreme Court in October, asking the justices to take up the case. His lawyer, Jeffrey Lamken, argued that the court has “limit[ed] Bivens to … three circumstances in which the Court previously recognized Bivens actions,” and that Watanabe’s case does not fall within those three circumstances.

Moreover, Lamken contended, the courts of appeals are divided over several issues arising from the case, including whether the availability of an alternative remedy for prisoners – such as the Prison Litigation Reform Act – means that a case arises in a “new context” from one of the three existing Bivens circumstances, and also whether, for purposes of whether something constitutes a “new context,” the severity of a prisoner’s injuries matter. Watanabe, Lamken noted, “here complains that he did not receive sufficiently prompt treatment for a fractured coccyx; the plaintiff in Carlson died on the scene as a result of egregious conduct.”

Represented by Zachary Tripp, Watanabe urged the justices to leave the 9th Circuit’s ruling in place, telling them that his case “does not extend Carlson v. Green … beyond its original context. Watanabe alleges a violation of the same constitutional right (the Eighth Amendment) for the same kind of conduct (deliberate indifference to a serious medical need) injuring the same kind of plaintiff (a federal prisoner) under the same circumstances (failure to provide adequate treatment) against the same class of officers (medical staff at a federal prison) as in Carlson.”

After considering the case at its conferences on June 11 and June 18, the court granted review. The case will likely be argued in the fall, with a decision to follow sometime in 2027.

Munson Hunter pleaded guilty to one fraud count stemming from a decade-long financial scheme that caused losses of nearly a half million dollars. In exchange for his plea, the government dismissed nine fraud counts, while Hunter agreed to waive his right to direct appeal and collateral review, except for claims of ineffective assistance of counsel. After Hunter was sentenced to 51 months of imprisonment, he filed a direct appeal but did not contest his term of imprisonment. Rather, he challenged a special condition of his supervised release to follow his prison sentence, requiring him to take medication that his healthcare provider prescribed for his depression and anxiety. The U.S. Court of Appeals for the 5th Circuit dismissed Hunter’s appeal, relying on his appellate waiver.

Justice Elena Kagan’s opinion, joined by seven other justices, held that “an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.” Her opinion first addressed the source of the court’s authority to adopt the miscarriage-of-justice exception and then offered some guidance on what such an exception would cover, although the court did not address how the exception would apply in Hunter’s case.

In describing its authority to adopt the miscarriage-of-justice standard, Kagan pointed to a district court’s role under Federal Rule of Criminal Procedure 11(c)(3)(A) in accepting a plea agreement and federal courts’ institutional interest in ensuring that legal proceedings appear fair to all who observe them. The parties had focused on principles of contract law, but Kagan’s opinion did not rely on them (although at the same time she did not repudiate any precedent that applies contract law to plea agreements).

Kagan’s opinion might appear to involve an application of what courts have referred to as federal courts’ supervisory powers (that is, the power to manage the activities of the judiciary). But as Justice Clarence Thomas’ dissent highlighted, Kagan’s opinion never actually says that the court did rely on supervisory powers, and the court’s opinion is ambiguous on that doctrine. Justice Amy Coney Barrett, who as a law professor wrote about federal courts’ supervisory powers, concurred in an opinion that addressed the scope of supervisory powers and sought to ground the court’s ruling in waiver principles, while Thomas’ dissent rejected, among other things, that supervisory powers could justify the court’s rule here at all. The separate opinions suggest that Kagan’s minimalism in explaining how the court grounded its authority for adopting a miscarriage-of-justice exception was thus necessary to reach an eight-justice majority.

Turning to when the miscarriage-of-justice standard might be achieved, Kagan’s opinion began with a general description of when the standard would not be met. “Sentencing is a complex affair in our criminal justice system,” she noted, “involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors.” Mistakes inevitably occur, and “[s]uch standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver.”

But to offer some guidance on when the miscarriage-of-justice standard would be fulfilled, Kagan described three examples, while cautioning that because “[e]xtreme cases” are “hard to anticipate before they happen,” her list is not exhaustive. First, Kagan said that an appellate waiver would not prevent a defendant from appealing “a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed.” Second, appeals are permitted of “a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race).” Third, she said that appellate waivers could not be enforced when a sentence was “imposed without ‘some minimum of civilized procedure,’” which the court illustrated with the example of a judge who “let an orangutan pick a sentence out of a hat.” It was also undisputed that an appellate waiver is unenforceable when defense counsel’s ineffectiveness undermines the knowingness and voluntariness of the plea.

Justice Brett Kavanaugh’s concurring opinion, joined by Justices Samuel Alito and Barrett, reiterated their view that the court set a “high bar” for finding a miscarriage of justice and disputed the interpretation of the rule by Justice Neil Gorsuch’s concurrence, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Gorsuch’s concurrence broadly criticized the prevalence of plea deals and focused on objections to pleas that do not turn on the existence of an appellate waiver.

Before reaching the miscarriage-of-justice standard, Kagan briefly addressed an issue that Hunter raised that attracted no support on the court. After Hunter entered into his plea agreement and had the terms of the appellate waiver reviewed at his plea hearing, the district court concluded the sentencing hearing by telling Hunter, “You have a right to appeal. If you wish to appeal, [your trial counsel] will continue to represent you.” Hunter contended that the prosecutor’s failure to object constituted a waiver by the government of his appellate waiver. The court was unpersuaded. First, the court noted that the plea agreement said that it could be modified in writing only, which did not occur. Second, the government’s silence did not constitute an “affirmative signal of ‘abandonment,’” which is usually necessary to find that a party waived a claim.

In total, Kagan’s opinion seemed designed to convey to lower courts simultaneously that a miscarriage-of-justice standard governs appellate waivers and that such a standard will successfully apply in only the most extreme circumstances.