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 six 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.

Last week, the Supreme Court decided the case of United States v. Hemani in the defendant’s favor. The government had prosecuted Ali Hemani under 18 U.S.C. § 922(g)(3) – which makes it a felony for an “unlawful user” of a controlled substance to possess a firearm – on the ground that he smoked marijuana about every other day. The court deemed that prosecution inconsistent with the Second Amendment. The outcome for Hemani is the correct one. But the most revealing thing about the court’s opinion may be what it never admits – that the real issue with Hemani’s prosecution was a statute so vague that no one can say whom it covers.

Section 922(g)(3) bans firearm possession by an “unlawful user” of drugs. That phrase is vague. It doesn’t clearly draw a line between who along the spectrum of drug users is covered and who is not. Does it cover someone who tried a drug once? The weekend smoker? Someone who used every other day, like Hemani? Or only someone who is high while actually possessing a gun? The text is silent.

The unclear statute was front and center in this case. The first argument in Hemani’s brief was that the “unlawful user” prong is void for vagueness because it doesn’t adequately define the line between lawful and unlawful conduct. Vague language in a criminal statute undermines due process and the separation of powers by effectively delegating the legislative task of crime definition to prosecutors, thereby inviting arbitrary enforcement and failing to provide sufficient notice.

In an amicus brief supporting Hemani, and in a December column for SCOTUSblog, I pressed a gentler version of the same point, arguing not for invalidation, but for a narrowing construction that would save the statute by confining it to its clear core – those impaired while armed – through a rule of what I have called “major-questions lenity” or “vagueness avoidance.” That approach would have allowed the court to resolve the case on a statutory ground without ever reaching the Second Amendment question.

The vagueness concerns were not lost on the justices. At argument, the statutory phrase “unlawful user” drew sustained fire from several members of the court, most pointedly from Justice Neil Gorsuch (who authored the majority opinion in Hemani). He told the government it “has not been able to define what a user is” – noting that it had previously taken the position that the term “unlawful user” covered anyone who used a drug “in the past year,” then argued that “a pattern” was needed, and then advocated for a confusing “habitual [use]” gloss that “conflates” the user prong with the statute's separate “addict” prong. “[T]ell me how [that’s] so clear,” he pressed the principal deputy solicitor general.

Yet in his majority opinion, Gorsuch chose not to focus on vagueness but on the Second Amendment – or at least it appears that way at first blush. Gorsuch surveyed the Founding-era treatment of “habitual drunkards” under the Second Amendment (a category of persons that the government contended was analogous to drug users) and concluded that those laws reached such people not because they used intoxicants regularly but because their drinking “rendered them practically incapacitated and incapable of managing their affairs.” Measured against that tradition, the habitual-drunkard laws “differ dramatically” from Section 922(g)(3) “on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways.”

As to vagueness, the opinion said nothing expressly. But the majority’s stated discomfort with Hemani’s prosecution is actually a vagueness intuition in Second Amendment dress. In the course of Gorsuch’s constitutional analysis, he asked “how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family?” Or does he “use a mild gummy as a sleep aid a few times a week?” The answer, Gorsuch noted, is that “[w]e do not know and, the government says, it doesn't matter.” That is an objection to a prosecution under a statute that fails to provide a clean separation between the conduct it covers and that which it does not. The court felt the vagueness defect but answered it with Second Amendment analysis rather than naming it for what it was.

That approach is somewhat surprising given that Gorsuch authored the majority opinion. As noted already, no justice pressed the indefiniteness of “unlawful user” harder at argument than he did, and none has done more in recent years to champion the vagueness doctrine and the closely related rule of lenity in concurring opinions. Under the rule of lenity, courts are to construe unclear language in criminal statutes against the government.

So why didn’t Gorsuch address the vagueness concerns head on? The likeliest explanation is institutional. He was writing for the court, not for himself. A majority opinion must hold its majority, and squarely embracing a vagueness angle may have risked fracturing the seven-justice coalition. The assignment to write the majority opinion may have dictated restraint in this case. In the past, Gorsuch has had a difficult time attracting more than one or two of his colleagues to the robust vagueness or lenity rationales he has articulated in concurring opinions; most of his colleagues have preferred other rationales that they likely perceive as more modest.

Indeed, restraint may have been the point of the assignment. When the chief justice is in the majority (as he was here), he decides who writes the majority opinion. If he wanted to keep the vagueness questions out of the spotlight, handing the pen to Gorsuch was a shrewd way to do it. The author of the majority opinion must speak for the court, while a justice left to write separately may speak more freely. Assigning Gorsuch the majority opinion captured his vote and may have prevented a concurring opinion in which Gorsuch would have made the matter of vagueness impossible to ignore.

***

Does any of this make a difference? As a practical matter, the court's result is close to what my approach would have produced. My proposed construction of the statute drew one clear line – that the statute reaches those intoxicated while armed, and no one else. The majority, by contrast, declined to construe the statute at all. It concluded that the Second Amendment prevented Hemani’s prosecution and went out of its way to stress that its decision was “narrow.” The court made clear, for example, that its opinion did not address the possibility of disarming “addicts” or “those presently intoxicated,” a prosecution under Section 922(g)(3) backed by “individualized proof that the defendant's drug use renders him a danger to himself or others,” or disarmament under a separate provision concerning convicted felons. But again, for Hemani and other marijuana users prosecuted on the same theory, the practical result is identical to what I sought.

Yet the reasoning matters in ways that will outlast this case. The point of construing the statute was never for Hemani’s sake alone. A decision based on a narrow construction grounded in a generic rule would have given lower courts a tool for the next vague criminal statute, and the one after that. The court’s constitutional holding in Hemani offers nothing portable – it is welded to Section 922(g)(3) and to the Second Amendment's history-and-tradition test. And it is ad hoc: a fact-bound ruling that announces no general principle.

The court’s decision does not even settle Section 922(g)(3) itself. As described, we still cannot say whether the government may prosecute someone presently intoxicated while armed, an addict, or a user whose history differs from Hemani’s by a degree. Each must now be litigated case by case, through the same laborious search of the historical record, inviting exactly what Justice Ketanji Brown Jackson warned about in her concurring opinion – “inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws.”

Following the decision in Hemani, the statutory phrase “unlawful user” remains on the menu of federal crimes a prosecutor may invoke, and it still does not tell us exactly who is covered. The court did not strike the statute and tell Congress to say clearly who should be disarmed. It instead told prosecutors to build a stronger record that a particular drug's users are dangerous, and try again.

***

None of this dims the good news. The court’s decision in Hemani did defeat a truly alarming theory of prosecutorial power. Gorsuch correctly chastised the government for attempting to turn certain drug use into a basis for lifetime disarmament on its bare say-so. And the vagueness argument survives for the next defendant and the next statute.

Nevertheless, the court refused to name the defect that its own questions at argument exposed – that the real trouble with Section 922(g)(3) is not its tension with the right to keep and bear arms, but its failure to define the line between criminal conduct and lawful conduct. The court did not so much resolve that problem as redescribe it, and a vagueness problem in Second Amendment dress is a vagueness problem still. The next court to face Section 922(g)(3) would do better to call it by its name. Given the refusal to do so in Hemani, the justices themselves may face that choice sooner rather than later.

Here, the government failed to do that with respect to Ali Hemani. A future case, built on a different record that connects a defendant’s drug use to the danger the relevant history recognizes, could come out the other way. That is not a loophole. It is the court implementing constitutional rights at their best: a demand for the right reason, proven on the facts.

How the case arose

The facts are spare. Federal agents searched Hemani’s family home in 2022 on a suspicion of terrorism-related activity. They never charged terrorism. Hemani cooperated. He surrendered a gun, pointed agents to marijuana on the property, and told them he used marijuana about every other day. More than six months later, the government indicted him under 18 U.S.C. § 922(g)(3) for possessing a firearm while an “unlawful user” of a controlled substance. It rested the charge on his marijuana use alone. For that, he faced up to 15 years in prison and disarmament for life.

Under the court’s precedent in New York State Rifle & Pistol Association Inc. v. Bruen and United States v. Rahimi, the Second Amendment analysis runs in two steps. First, a court asks whether the Second Amendment’s text covers the conduct. If it does, the Constitution presumptively protects it, and the government then bears the burden of showing the regulation at issue is consistent with the nation’s historical tradition of firearm regulation. To do so, the government must look to the history of firearm regulation. The court has said two features are important in this historical analysis: both the “why” and the “how.” More about how those relate to each other below.

The government conceded that § 922(g)(3) burdens protected conduct (being the right to possess a firearm). So it set out to carry the historical burden, and the version of the statute it defended was a sweeping one. On its reading, the statute disarms a person the moment he becomes an unlawful user of any controlled substance, and it does so until he stops. The amount does not matter. The substance does not matter. Whether the government has demonstrated that the person is dangerous does not matter. To carry its burden, the government offered one tradition pointing to a historical “how”: laws that once governed the “habitual drunkard.” That type of law provided two reasons the government said justified its action. The first “why” was the need to protect the public from “unusually dangerous” individuals who commit “violent crime[s].” The second was that the government is permitted to disarm any groups that regularly use intoxicants.

The Supreme Court concluded that the government failed to prove its action was tied to the first reason. And it rejected the second reason as not a permissible one. How the court tested those reasons reveals what the Second Amendment actually demands.

A failure of reasons, and of proof

To begin with, the court rightly resolved the case only as applied to Hemani. That was the disciplined choice. In an as-applied challenge, a court can demand that the government produce evidence connecting its action to a permissible reason, and it can make sure the government isn’t actually acting on excluded reasons through that evidentiary demand. That same evidentiary scrutiny generally does not translate to facial challenges (that is, a claim that the law is invalid in all cases), where the individual litigant drops out of view. By resolving things narrowly, the court left for another day the questions it could not responsibly answer here: the disarmament of addicts, of the presently intoxicated, and of users a legislature has specifically found dangerous.

Reviewing the as-applied challenge, let us start with the government’s argument that history supports a purpose of disarming any group that regularly uses intoxicants. As the court pointed out, a habitual drunkard, at the Founding and for decades after, was not simply a frequent drinker. He was someone whose intoxication left him incapacitated. Early America drank heavily, and the laws still reached only the incapacitated. Section 922(g)(3), on the government’s reading, reaches anyone who regularly uses any scheduled substance, without regard to incapacity. That is a wholly different target.

The government also asserted that its justification for prosecuting Hemani was a concern about dangerousness, and that § 922(g)(3) disarms unlawful users to protect the public from those who are unusually dangerous. The court suggested that unusual dangerousness was more promising as one of the “animating purposes” for historical regulation of firearms. However, the decisive question in an as-applied case is whether the government’s stated reason is an actual reason, supported by the evidentiary record, or an unsupported assertion. Here the government disclaimed any need to show that Hemani’s use made him unusually dangerous. It asked the court to treat regular marijuana users as categorically dangerous, in its own words, “without any further showing.” So nothing in the record connects his disarmament to the reason the tradition licenses.

The court refused to uphold the government’s assertions about dangerousness on the government’s mere “say-so,” without “any further showing.” The court’s own reservations name the gap. It left open “whether the government could bring a prosecution” backed by “individualized proof” about the defendant’s dangerousness, or one resting on proof that “a certain drug always renders its users dangerous.” The government chose not to supply either of these factual nexuses.

The point is not academic, as the court’s hypotheticals show. On the government’s theory, the same rule reaches the husband who regularly takes his wife’s Ambien to sleep and the student who uses a friend’s Adderall to study. The drug “makes no difference,” the court observed, nor does “how much an individual uses or the effects it has on him.” As the court put it, “to state the analogy is to expose its deficiency.” Without a factual nexus to dangerousness, the government could prevail against people like these too, on nothing more than regular usage of those controlled substances. The reason would do no work. The bare fact of use would carry the case. That is the result the court wisely declined to accept.

This is also a case about pretext, and the court treated it as one. Even assuming that disarming those shown to be dangerous is a permissible reason, the court doubted that dangerousness was the reason the government was actually acting on here. Section 922(g)(3) borrows its triggering category from the Controlled Substances Act, a statute whose schedules are populated for reasons of public health and drug control that often have nothing to do with violence. And the government’s own conduct cut against its asserted reason. It curtailed marijuana enforcement, reclassified some marijuana products, and watched most states legalize this drug. Having helped build that landscape, the government is, as the court put it, “awkwardly positioned” to call the millions who use marijuana categorically dangerous.

I have written that pretext analysis of this kind is necessary to make sure the government is actually acting on permissible reasons in as-applied settings. The 2015 case of Holt v. Hobbs is a good illustration of why. There, a Muslim prisoner sought to wear a short beard for religious reasons, and Arkansas offered prison security as its reason for refusing. But the state allowed the same beard for medical reasons and already searched prisoners’ hair and clothing. It regulated the religious beard while tolerating the identical risk everywhere else. That is the tell. If pointing to a permissible reason like prison security were enough, the government would always win. But it is not enough: The government must prove the connection between its action and that reason with evidence, and Arkansas could not. Hemani runs the same test. The reason the government pressed was not the reason it acted on elsewhere.

Put these threads together and a single method emerges. A limited number of permissible reasons fixed by history. A presumptively as-applied posture. A demand that the government factually connect its action to that reason. And a check against pretext.

This is not freewheeling judicial balancing of different interests, and it is not wooden analogue-hunting either. It is disciplined scrutiny, grounded in history and constrained by the evidentiary record. It is precisely the analysis I have argued for elsewhere. Without this combination, the court warned, a “broad power to designate any group as dangerous” would let the government “quickly swallow” the Second Amendment.

A right is a constraint on reasons

We sometimes picture a constitutional right as creating an impenetrable wall. On one side sits protected conduct the government may not touch. On the other sits everything it may regulate. Some categorical rights do operate this way. But most don’t. Generally, a right operates as a constraint on the reasons the government may act on. It does not forbid the regulation. It forbids the wrong justification for it. In other words, it is a wall with certain permitted gates of entry.

As I explain in greater length elsewhere, a constitutional right is a protected reason. It gives the government a first-order reason to protect the interest the Constitution names, here the interest in keeping arms for self-defense. And it gives a second-order reason that excludes certain justifications for interfering with that interest. The right is the giving of reasons by the Constitution’s makers to the government both to protect a specific interest identified in the Constitution, and to exclude certain additional reasons for interfering with that interest.

It is worth noting how the court’s Second Amendment doctrine has moved in this direction since Bruen. There, the court asked whether history furnished an analogue for a modern gun law. Rahimi asked something subtly different. It asked whether the government had a “permissible reason” for disarming or restricting certain firearm uses, rooted in history. That shift is an important and positive change in trajectory that Hemani continues, and it tracks how constitutional rights ought to work.

Read this way, the court’s historical inquiry is doing a specific kind of work. The court frames its test as the “why” and the “how.” But in Hemani the “how” really serves the “why.” The historical analogues, whom the drunkard laws reached and how they operated, are not the object of the inquiry. They are the instrument. The court studies how the old laws worked in order to identify the reason they served. That reason was incapacitation. The drunkard laws, the court explained, reached those whose drinking “rendered them practically incapacitated and incapable of managing their affairs.” They did not reach the regular drinker. So the history matters because, as in Rahimi, it fixes which type of justification is permissible, not because the modern law must mirror an old one for its own sake. The government wanted to rely on the justification of its need to disarm any regular user of controlled substances. The history pointed to disarming a regular user only if such use incapacitated that individual. Those are different reasons, and that difference decided the case.

The concurrences

The separate writings point in the same direction from different angles.

Alito, joined by Justice Elena Kagan, would decide the case on the single ground that the government’s analogues reach only the incapacitated, and say no more. He catalogues what the record does not show: “how much he used, the strength of the marijuana he used, how many times he used it … or the degree to which this use affected his ability to exercise judgment.”

Jackson, joined by Sotomayor, would replace Bruen with means-end scrutiny, faulting its history-and-tradition test as unworkable. She reads the majority as implying that § 922(g)(3)’s “operation is not sufficiently tailored to the government’s stated purpose” (to disarm dangerous persons), which she calls “precisely the issue to which means-end scrutiny would direct our focus.”

She is right that the court is doing a kind of means-end scrutiny. She is wrong that this makes the historical inquiry dispensable, or that it requires judicial balancing. It is a type of means-end scrutiny that is historically grounded and evidentiarily disciplined. The history helps illuminate the permissible ends that could limit defeasible constitutional rights, and the court must then demand proof that the government’s means actually serve them.

Each opinion is circling the same question the majority answers: whether the government’s reason fits what it has done, and whether its actions are actually in service of a permissible reason.

The essence of a right

Hemani shows what can unite an otherwise fractured bench. The lesson is not that the government may never disarm dangerous or incapacitated individuals under this statute. It is that a reason does no work until the government proves it and ties it to the person before the court. A government that needs only to name a danger can manufacture one in any case, against any right. So the court demanded more. It required a permissible reason drawn from history. It required proof on the record. It required a check against pretext. That discipline is not an obstacle to legitimate regulation. It is constitutive of the right itself.

Reminder: If you’d like to attend our July 8 term-in-review event at Johns Hopkins University Bloomberg Center, register your interest here. The event will feature a fireside chat with the ACLU’s Cecillia Wang, who argued the birthright citizenship case before the Supreme Court; a live taping of the Advisory Opinions podcast; and a discussion of the historical framework of birthright citizenship from Johns Hopkins professor Martha S. Jones.

At the Court

Orders from the justices’ June 18 conference are expected this morning at 9:30 a.m. EDT.

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

The court has also identified Thursday as an opinion day. We will be live blogging that morning, as well.

Morning Reads

Supreme Court faces new wave of cases over state election laws

Maureen Groppe, USA Today

After hearing cases this term on campaign finance, mail-in ballots, and who has standing to challenge election rules, the Supreme Court could add more election cases “to its plate for the fall as the political parties continue to fight over whether various voting rules prevent election chicanery or disenfranchise voters,” according to USA Today. “The justices will be deciding in the coming days whether to review laws in Arkansas and Texas that voting rights groups say are illegally making it harder for people with limited English proficiency to vote. They’ve also been asked by the Trump administration to revive voter registration rules in Arizona that lower courts said suppress the vote.” And a fourth case addresses a Pennsylvania rule requiring residents voting by mail to date their ballot and not just sign it.

'They have nowhere to turn': Law students fight for workplace protections

Carrie Johnson, NPR

Emory University’s Supreme Court Advocacy Program is putting a spotlight on federal judiciary employees, including interns and clerks, who faced discrimination or other wrongful conduct in the workplace and then had “no clear way to complain or sue” in a neutral, independent forum over how they were treated. The program “recently petitioned the U.S. Supreme Court to take up a case that challenges the internal system the judiciary uses to police itself,” according to NPR. The petition for review asks whether that internal system “gives workers due process and equal protection under the law.” “The law student-drafted petition comes as misconduct in the judiciary is drawing renewed attention. This month, three federal judges in three different states came under scrutiny for their behavior off the bench.”

Judges Say Threats to Family Erode Confidence in Judicial System

Jordan Fischer, Bloomberg Law

During a panel on Friday on judicial security, judges shared how their lives and work have changed amid an uptick in threats against members of the judiciary, including Supreme Court justices. U.S. District Judge Beth Bloom noted that “there have been more than 340” threats to federal judges so far in 2026 and 564 total in 2025. “If the real goal is a long-term strategy to erode the trust and the integrity of the judicial system by discouraging people from entering into this particular part of our profession, the answer unfortunately is it’s getting close to doing just that,” said Judge Nancy Abudu, who sits on the U.S. Court of Appeals for the 11th Circuit. “Bloom said in her 32 years on the bench — including two decades as a state judge — she’s never seen the tone and frequency of violent threats judges now receive.” “Security for federal judges is largely provided by the US Marshals Service, which earlier this year requested an additional $34 million in funding to keep up with the increased need for protective details for government officials,” according to Bloomberg Law.

Federal judge sends Bayer's $7.25 billion Roundup settlement back to Missouri state court

Dietrich Knauth, Reuters (paywalled)

As Bayer awaits the Supreme Court’s ruling in a case on whether the federal law governing pesticide labels protects it from lawsuits over not including a cancer warning on Roundup weedkiller, the company is celebrating a win before a different court. On Wednesday, U.S. District Judge Henry Edward Autrey “sent Bayer’s proposed $7.25 billion Roundup settlement back to state court ... overruling objections from plaintiffs who had argued the state court had no power to implement a nationwide resolution of lawsuits that claim the company’s Roundup weedkiller causes cancer,” Reuters reported, noting that the decision “is likely to bolster Bayer’s efforts to win approval of the sweeping settlement.” Bayer has pursued the settlement even though a Supreme Court ruling in its favor “could undercut many of the lawsuits currently pending against the company.”

Analysis: What the missing center has meant for the Supreme Court

Joan Biskupic, CNN

In an analysis for CNN, Joan Biskupic explored how the court’s conservative bloc has changed in recent years, particularly after the addition of Justice Amy Coney Barrett gave it a 6-3 supermajority “for the first time in modern history.” “The spare vote for what’s needed to produce a majority emboldened conservatives,” according to Biskupic, leading to “reversals of milestone rulings” on such issues as abortion, affirmative action, and redistricting. This “emboldened” approach stands in contrast to the pragmatic approach employed by “conservative centrists” like Justices Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy, who anchored the court and “regularly sought a middle ground,” Biskupic wrote.

Podcasts

Advisory Opinions

SCOTUS Rules on Illegal Drug Users Owning Firearms

Sarah Isgur and David French react to the Supreme Court’s opinions on appeal waivers and drugs and the Second Amendment.

Amarica's Constitution

Reverence and Radicalism: Remembering Gordon Wood

Tributes to late historian Gordon Wood have been pouring in, and Akhil Amar and Andy Lipka spent this episode reflecting on his peerless body of work. Professor Steven Calabresi, Gordon’s neighbor, friend, and colleague, joins them for the discussion.

A Closer Look

When Supreme Court Opinions Are Released

Since we are in the heart of opinion season, we thought it would be helpful to revisit past Closer Looks on how SCOTUSblog covers opinion announcements. A version of this piece was originally published on March 20.

As noted above, the court has indicated that it may announce opinions tomorrow and Thursday. You may be wondering where it made that announcement and (as we are frequently asked on the live blog) if we here at SCOTUSblog know which opinion(s) to expect.

The answer to the second question is no: The Supreme Court does not announce ahead of time which cases will be decided on a particular day. Indeed, even the parties don’t know in advance when they will get a ruling in their case. The only time we have a good sense of which opinions will be issued is the very last opinion day of the term (simply by process of elimination). Based on past practice, this day typically falls at the end of June, although we can’t say for sure. (In 2024, for example, the final opinion day was in early July.)

As for opinion days, the court announces these – typically several days in advance – on the calendar on its website, where they appear as dark blue “non-argument” days (unless they overlap with a red argument day). The court also indicates in its “Today at the Court” feature that it “may” announce opinions on that particular day.

Earlier in the term, from November through April, the justices schedule opinion days as needed, almost always on previously scheduled argument days or on days when the justices were scheduled to take the bench to address other business, like Supreme Court Bar admissions. While the court can schedule an opinion day between sessions, its general practice has been not to do so. During May and June, the height of opinion season, there is usually at least one opinion day per week.

During the COVID-19 pandemic, opinions were released only on the court’s website, but now, the justices are again in the courtroom to release them (although the courtroom audio is not available live). The court posts opinions on its website as the justices announce them in the courtroom.

As stated above, the court does not announce in advance how many opinions it will release. But the method it uses to number the opinions, known as the R-number system, serves as an unofficial but reliable signal that the court has released its final opinion for the day.

Here’s how the system works: When opinions are eventually published in the U.S. Reports, the official bound version of the court’s opinions, they are published chronologically, with the opinions for a particular day published in order of the justices’ seniority. The R number, which appears to the left of the opinion date/docket number/case name on the court’s website, refers to the order in which the opinion will appear in the U.S. Reports. But because opinions are announced in order of reverse seniority, the opinions on the court’s website can’t be assigned an R number until all of the opinions have been posted. So, the posting of the R numbers on the court’s website is a sign that it has finished issuing opinions for that day.

If a case is not decided by the end of the term, it will ordinarily be reargued, although it is rare for the court to order this. Reargument usually only occurs when the justices consider a second round of argument necessary for either clarifying a legal issue raised in the case or reaching a consensus. This term, the only case to have been reargued was Louisiana v. Callais, in which the court curtailed a major provision of the Voting Rights Act.

SCOTUS Quote

JUSTICE KAGAN: “Mr. Messenger, I'm not sure that Justice Scalia’s answer satisfies his own question.”

(Laughter.)

JUSTICE SCALIA: “What ­­– what was the question?”

— Harris v. Quinn  (2014)

Reminder: If you’d like to attend our July 8 term-in-review event at Johns Hopkins University Bloomberg Center, register your interest here. The event will feature a fireside chat with the ACLU’s Cecillia Wang, who argued the birthright citizenship case before the Supreme Court; a live taping of the Advisory Opinions podcast; and a discussion of the historical framework of birthright citizenship from Johns Hopkins professor Martha S. Jones.

At the Court

On Thursday, the court released its opinions in three cases: United States v. Hemani, Hunter v. United States, and T.M. v. University of Maryland Medical System Corp.

• In Hemani, the court held that the federal government cannot prosecute Ali Hemani for violating a federal law that prohibits knowingly possessing a gun while being an unlawful user of a controlled substance. As applied to Hemani, who used marijuana about every other day, that law violates the Second Amendment, Justice Neil Gorsuch wrote for the court. There were no dissents, but several justices wrote or joined concurring opinions.
• In Hunter, the court 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. It sent the case of Munson Hunter back to the lower court to be reconsidered under that standard. Justice Elena Kagan wrote the majority opinion, and Justice Clarence Thomas was the lone dissenter.
• In T.M., by a 5-4 vote, the court held that the Rooker-Feldman doctrine, which limits federal district courts’ authority to review state-court judgments, applies to judgments that remain subject to further review in state appellate proceedings, not just final decisions. Justice Sonia Sotomayor wrote the majority opinion, and Justice Amy Coney Barrett wrote the dissent, which was joined by Chief Justice John Roberts and Justices Elena Kagan and Neil Gorsuch.

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

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

The court has also identified next Thursday as an opinion day. We will be live blogging that morning, as well.

Morning Reads

Televised Supreme Court Sessions Backed by Key Senate Panel

Aidan Williams, Bloomberg (paywalled)

On Thursday, the Senate Judiciary Committee advanced legislation “to televise Supreme Court proceedings, a step long resisted by the high court’s justices but sought by open government advocates,” according to Bloomberg. The legislation, which was approved with bipartisan support, “would force the justices to accept cameras unless a majority of them determine video coverage would interfere with the due process rights of a party to a case.” Bloomberg noted that “[t]he committee’s approval doesn’t necessarily mean the legislation will get a vote by the full Senate. ... Similar bills passed the panel four times in previous Congresses but never came to a vote in the Senate.”

Louisiana Cops Threatened To Arrest a Man for Handing Out Religious Leaflets. They Got Qualified Immunity.

Jacob Sullum, Reason

Six years ago, Richard Hershey had a run-in with police while distributing leaflets “promoting the views of the Christian Vegetarian Association outside a Christian rock concert at the Bossier City Arena” in Louisiana. The officers asked him to leave and said he would be arrested if he didn’t, according to Reason. Now, Hershey is asking the Supreme Court to allow him to sue those officers for violating his First Amendment rights. He has appealed a ruling from the U.S. Court of Appeals for the 5th Circuit holding that the officers are “protected by qualified immunity, a doctrine that bars federal civil rights claims unless they allege violations of ‘clearly established’ law.” “The right to evangelize in public, free of viewpoint-based government suppression, is as clearly established as any right in the firmament,” Hershey’s legal team, which includes former U.S. Solicitor General Paul Clement, wrote in the petition for review.

Fed's Cook spent $1.2 million on legal services fighting firing by Trump

Ann Saphir and Michael S. Derby, Reuters (paywalled)

In a filing made public on Thursday by the U.S. Office of Government Ethics, Federal Reserve Governor Lisa Cook disclosed “almost $1.2 million in legal services payments” made as her case over President Donald Trump’s effort to remove her as a Fed governor “has made its way up to the Supreme Court,” according to Reuters. “The filing listed legal services payments on Cook’s behalf totaling $696,346 from the State Democracy Defenders Fund and $477,951 from Contina Impact. The filing also noted that Contina Impact paid $143,908 for ‘security services,’ and that three personal friends of Cook also made contributions on the Fed governor’s behalf for security work.” Reuters noted that the justices are “expected by the end of this month to rule in Cook’s case, which is seen as pivotal to the U.S. central bank’s retaining the ability to make monetary policy free of political pressures.”

On Site

Opinion Analysis

Court sides with challenger to law banning drug users from possessing guns

The court ruled in United States v. Hemani that the federal government cannot prosecute Ali Danial Hemani on charges that he violated a federal law barring users of illegal drugs from having a gun. Writing for the court, Justice Neil Gorsuch emphasized that the government was seeking to “automatically strip Mr. Hemani of his Second Amendment right to possess a firearm” based only on a showing that he “regularly uses any amount of any controlled substance.” But the government’s arguments fell short, Gorsuch concluded, because the early American laws on which the government relied to support these restrictions “targeted different kinds of people, did so for different reasons, and operated in different ways.”

Opinion Analysis

Divided court bars federal district court review of non-final state-court judgments

A divided Supreme Court on Thursday clarified the scope of a doctrine limiting lower federal courts’ authority to review state-court judgments. In an opinion from Justice Sonia Sotomayor in T.M. v. University of Maryland Medical System Corp., the court, by a vote of 5-4, held that the status of a challenged state-court judgment – that is, whether it is a final decision from the highest court of a state or, instead, “is subject to further review in state appellate proceedings” – is not relevant in determining whether a federal district court can weigh in.

Opinion Mini-Analysis

Court rules defendants may under certain circumstances appeal a sentencing condition despite an appellate waiver

The court on Thursday sent the case of a Texas man who is seeking to appeal one of the conditions that a federal judge imposed as part of his sentence back to the lower court for another look. By a vote of 8-1, the justices ruled in Hunter v. United States that defendants can sometimes appeal a conviction or sentence even when they have agreed not to do so.

SCOTUS Quote

“In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana.”

— Justice Samuel Alito in United States v. Hemani  (2026)

Justice Amy Coney Barrett dissented, in an opinion joined by Chief Justice John Roberts and Justices Elena Kagan and Neil Gorsuch. She argued that Thursday’s opinion leaves an already confusing legal principle “worse off.”

The doctrine in question is the Rooker-Feldman doctrine, which gets its name from two past rulings on the relationship between state and federal courts. The doctrine bars lower federal courts from hearing “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments,” as Justice Ruth Bader Ginsburg put it in Exxon Mobil Corp. v. Saudi Basic Industries Corp., a 2005 case in which the court responded to persistent confusion surrounding the doctrine by attempting to clearly define its scope. However, Exxon Mobil left some questions unanswered, including the one that the court took up this term: whether lower federal courts can review a state-court judgment that remains subject to further review in state courts.

That question was brought to the justices by a Maryland woman identified only as T.M., who was involuntarily admitted to the hospital after a psychotic episode. She seeks federal court review of a settlement agreement she reached with the hospital, which outlined the conditions under which she would be discharged. A judge in Maryland entered the settlement as a consent order in a lawsuit that T.M. filed in state court when she was trying to secure her release, and T.M. later appealed the order within the state court system even as she challenged it in federal court.

T.M. contended that the Rooker-Feldman doctrine does not apply to the consent order because it was a non-final judgment, meaning it remained subject to further review in state courts. But a federal district court in Maryland and the U.S. Court of Appeals for the 4th Circuit disagreed, holding that the doctrine bars them from hearing T.M.’s case.

On Thursday, the Supreme Court affirmed the 4th Circuit, holding that a “straightforward application of the logic and reasoning underlying Rooker-Feldman leads to” the conclusion that T.M.’s case cannot move forward in federal court.

To hold that the doctrine only applies to final state-court judgments would require “a reimagining, rather than an application, of the Court’s Rooker-Feldman precedents,” Sotomayor wrote in the 18-page majority opinion. And that “reimagining,” she continued, would “create anomalous outcomes,” because so much would hinge on when the federal suit was filed, and it would also disrupt “the ‘cooperation and comity’ on which our federal system is built.” Moreover, such a holding would lead to more confusion, as “[i]t is not always straightforward to determine whether a given state-court judgment is” truly final.

Sotomayor concluded by observing that “the animating force behind many of T. M.’s and the dissent’s arguments appears to be the belief that Rooker and Feldman were wrongly decided and so should be cabined whenever possible, if not outright overruled.” But the question of whether to overrule the doctrine was not part of the question that the justices agreed to decide and was not raised in T.M.’s petition for review, she wrote, and thus the court declined to consider it.

Justice Clarence Thomas wrote a 14-page concurring opinion in which he essentially defended the Rooker-Feldman doctrine, describing it as “correct as an original matter.” “The power to revise or modify another court’s judgment or decree has been recognized as an exercise of appellate jurisdiction from before the ratification of the Constitution,” he wrote, and federal district courts are not authorized to exercise appellate jurisdiction.

In her 12-page dissent, Barrett painted a contrasting picture of the doctrine, asserting that it “stands on shaky ground,” and also highlighted the court’s effort in Exxon Mobil to keep “its footprint small.” In that ruling, Barrett wrote, the court emphasized that the doctrine stemmed from cases in which “the federal action was brought ‘after the state proceedings ended’” and that the application should be limited to such cases. For that reason, a faithful reading of Exxon Mobil would lead the court “to reject the application of Rooker-Feldman to T. M.’s case,” because state proceedings are still underway. Thursday’s opinion, Barrett continued, “relax[es]” those tight boundaries.

“Still,” Barrett concluded, “the news is not all bad.” While the court did relax the boundaries drawn in Exxon Mobil, “it repeatedly emphasizes” the narrowness of the Rooker-Feldman doctrine. “Courts should not lose sight of that message,” Barrett wrote. “In the end, Rooker-Feldman has been given an inch—it should not be allowed to take a mile.”

The Supreme Court on Thursday ruled in United States v. Hemani that the federal government cannot prosecute a Texas man on charges that he violated a federal law barring users of illegal drugs from having a gun. In an opinion by Justice Neil Gorsuch, the justices agreed with Ali Danial Hemani that, at least as when it is applied to him, the law violates the Second Amendment.

Writing for the court, Gorsuch emphasized that the government was seeking to “automatically strip Mr. Hemani of his Second Amendment right to possess a firearm” and “imprison him for up to 15 years” based only on a showing that he “regularly uses any amount of any controlled substance.” But the government’s arguments fell short, Gorsuch concluded, because the early American laws on which the government relied to support these restrictions “targeted different kinds of people, did so for different reasons, and operated in different ways.”

The case began in 2022, when FBI agents searched Hemani’s home and found a Glock 19 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine. Hemani said that he used marijuana approximately every other day.

Based on his admission that he used marijuana, Hemani was indicted on charges that he had violated a federal law that makes it a crime for anyone who is “an unlawful user of or addicted to any controlled substance” to have a gun. A knowing violation of the law is a felony, which can carry a sentence of up to 15 years in prison.

Hemani asked the federal trial judge to throw out the charge against him. He contended that at least as applied to him, the law violated the Second Amendment, which protects “the right of the people to keep and bear Arms.”

U.S. District Judge Amos Mazzant granted that request, pointing to a decision by the U.S. Court of Appeals for the 5th Circuit holding that the law is unconstitutional when it is used to charge someone who may have been a habitual drug user but was not shown to be under the influence of drugs when he had the gun.

On appeal, the federal government agreed with Hemani that, based on the 5th Circuit’s ruling, the dismissal of the charge against Hemani should stand. In a brief, unsigned opinion, the court of appeals upheld Mazzant’s ruling.

The federal government then asked the justices to weigh in, which they agreed to do in October. On Thursday, the Supreme Court upheld the 5th Circuit’s decision.

In a 19-page opinion for the majority, Gorsuch explained that under the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, courts should uphold restrictions on gun rights only when there is a tradition of such regulations in early U.S. history. And in 2023’s United States v. Rahimi, Gorsuch continued, the court made clear that the government is not required “to point to a ‘historical twin’”; it is enough, he said, that “the challenged regulation is consistent with the principles that underpin our regulatory tradition.”

Here, Gorsuch wrote, the federal government cannot meet this high bar. Although the government points to early American laws targeting “habitual drunkards” – for example, by jailing them, placing them in workhouses, committing them to asylums, or requiring them to post a bond to ensure their good behavior – these laws are not sufficiently analogous to justify Hemani’s prosecution. First, Gorsuch suggested, a “habitual drunkard” was not the same thing as someone who regularly uses intoxicants such as alcohol. Even some of the Founding Fathers were heavy drinkers by today’s standards, Gorsuch noted, but to be regarded as a “habitual drunkard” someone would have to frequently be so drunk that they were “practically incapacitated and incapable of managing their affairs.” Yet the government in this case maintains that it does not need to show that a drug user “is regularly incapacitated.” Indeed, Gorsuch said, under the government’s theory it could also prosecute “a husband who regularly takes his wife’s prescription Ambien to sleep” – a scenario raised by Justice Amy Coney Barrett at the oral argument – “and a college student who routinely uses a friend’s Adderall to cram for exams.”

Gorsuch next rejected the government’s argument that the law at the center of this case serves a similar purpose as the law targeting habitual drunkards – that is, “to protect the public from ‘unusually dangerous’ individuals who will ‘misuse . . . firearms’ to commit ‘violent crime[s].’” Even if that is the goal of the law in this case, Gorsuch countered, the habitual drunkard laws normally “had little to do with protecting the public from categorically violent and unusually dangerous persons.”

Moreover, Gorsuch continued, the habitual drunkard laws are not an apt analogy because their operation “differs significantly” from the operation of the law at the center of this case. In particular, Gorsuch stressed, those laws “usually provided some form of process” – such as a trial, proceedings in a probate court, or a bond hearing – “before an individual lost any of his liberties, even temporarily.” By contrast, under the government’s rule, the law in this case “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use.”

Gorsuch made clear that the court did “not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others.” But here, he said, the government is asking the court “to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing.” Such a position, Gorsuch posited, is at odds with the government’s own actions – for example, its recent decision to downgrade the categorization of marijuana on its list of controlled substances, so that it is now classified as having “a lower potential for dependence and abuse” and “a ‘currently accepted medical use.’”

Gorsuch emphasized that Thursday’s ruling was “a narrow one” that did not address whether the government could prosecute drug addicts for having a gun or the legality of other gun restrictions – such as the ban on the possession of guns by people who have been convicted of felonies. Indeed, Gorsuch added, Thursday’s decision did “not even address whether the government” could prosecute someone if it had proof that a specific individual’s drug use “renders him a danger to himself or others.”

Although all of the justices agreed that Hemani’s conviction was improper, several justices wrote separate opinions. Justice Clarence Thomas filed a concurring opinion in which he argued that the law under which Hemani had been convicted violates the Constitution, because Congress does not have the power “to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.”

Justice Ketanji Brown Jackson also wrote a concurring opinion, joined by Justice Sonia Sotomayor, in which she contended that the framework established by the Supreme Court in Bruen “is unworkable” and “vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence.”

Justice Samuel Alito, in an opinion joined by Justice Elena Kagan, agreed with the result that the majority reached, if not its reasoning. In his view, the federal government had “failed to show that a marijuana user like” Hemani “is incapacitated in a way analogous to the habitual drunkards that the Government’s analogues regulated.”

The court has not yet released its ruling in Wolford v. Lopez, a challenge to a Hawaii law that bars gun owners from bringing their guns onto private property without express permission from the property’s owner. That decision could come at any time now.

In 2024, Munson Hunter pleaded guilty to one count of aiding and abetting wire fraud; as part of the plea deal, the government dismissed nine other counts with which Hunter had been charged. Hunter also agreed to waive his right to appeal except for claims that his lawyer’s performance had been so poor that it had effectively deprived him of his constitutional right to be represented by an attorney. In addition to a sentence of over four years in prison, the court further required him to receive mental health treatment and take medicine as part of his supervised release.

Hunter wanted to challenge that supervised-release condition, but the U.S. Court of Appeals for the 5th Circuit ruled that the appeal waiver barred him from doing so – even if the judge had advised him that he had a right to appeal. On Thursday, the Supreme Court threw out that decision.

Writing for the majority, Justice Elena Kagan explained 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.” Because the court of appeals had not reviewed Hunter’s case under this standard, the Supreme Court sent the dispute back to that court for it “to decide whether enforcing Hunter’s appeal waiver would result in a miscarriage of justice.”

Justice Clarence Thomas was the lone dissenter. He wrote that there was “no basis for excusing Hunter from his appeal waiver” and he argued that the court’s ruling seemed “to rest on its policy concern that holding defendants to their waivers may sometimes lead to unfair results or make federal courts look bad. But, policy concerns are not rules of decision in courts of law.”

Plus, a reminder: If you’d like to attend our July 8 term-in-review event at Johns Hopkins University Bloomberg Center, register your interest here. The event will feature a fireside chat with the ACLU’s Cecillia Wang, who argued the birthright citizenship case before the Supreme Court; a live taping of the Advisory Opinions podcast; and a discussion of the historical framework of birthright citizenship from Johns Hopkins professor Martha S. Jones.

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. Orders from today’s conference are expected on Monday at 9:30 a.m. EDT.

The Supreme Court will be closed tomorrow in recognition of Juneteenth. We will be sending an abridged version of this newsletter.

Morning Reads

How a Conservative Nonprofit Won a Huge Case Against Trump and Suffered for It

Lydia Wheeler, The Wall Street Journal (paywalled)

Liberty Justice Center “spent $3.5 million challenging the legality of President Trump’s global tariffs,” and, in February, secured a major Supreme Court win. But rather than receiving a surge in support as a result of its work on the tariff litigation, the conservative nonprofit has been navigating a variety of challenges, including losing some long-time conservative donors, according to The Wall Street Journal, which noted that the group “says it lost a little over 30% of its donors because of the case.” Still, the organization isn’t backing down from the tariff fight and is currently challenging new tariffs imposed after the Supreme Court’s ruling. “It’s certainly the most important work I’ve ever done and I think a lot of our team feels that way,” Sara Albrecht, Liberty Justice Center’s CEO, said.

How a Supreme Court case could affect military voting

Sarah D. Wire, USA Today

The Supreme Court is expected to rule soon in a case “on whether states can offer grace periods for when election officials receive ballots postmarked by Election Day.” A decision eliminating such grace periods “could make it more difficult for hundreds of thousands of military members stationed overseas or at bases far from home to vote,” according to USA Today. “In 2024, military and overseas ballots were rejected for lateness at more than eight times the rate of domestic mail ballots,” as reported by the Bipartisan Policy Center.

Georgia state House lawmakers will not redraw voting districts during special session

Dan Raby, CBS News

In May, "weeks after the Supreme Court issued its 6-3 ruling in Louisiana v. Callais," Georgia Gov. Brian Kemp called a special legislative session for state lawmakers to redraw Georgia's legislative maps, "saying the court's ruling made clear that Georgia would need new electoral maps before the 2028 presidential election," according to CBS News. But as that special session got underway on Wednesday, top Georgia lawmakers notified Kemp that they would not yet work on new maps, in part because they believe they need more time "to understand the full implications of the U.S. Supreme Court's decision." The lawmakers said they would instead "focus the session on tax relief and ratifying the state's gas tax suspension."

Collins does ‘not regret’ support for Kavanaugh but ‘disappointed’ with his landmark abortion ruling

Alexander Bolton, The Hill

As she continues to face pushback during her reelection campaign over her vote to confirm Justice Brett Kavanaugh, Sen. Susan Collins, a Republican from Maine, is drawing a distinction between her support for Kavanaugh’s nomination and her view on his vote to overturn Roe v. Wade in 2022, according to The Hill. “Collins told News Center Maine in a televised interview that she does not rue her support for Kavanaugh’s confirmation, arguing he was qualified to serve on the Supreme Court, but she disagreed with his decision to give states the power to set their own laws restricting abortion.” “I do not regret that vote. I do disagree with Justice Kavanaugh’s vote,” Collins said.

Louisiana watches closely as Supreme Court stops nitrogen execution in Alabama

Greg LaRose, Louisiana Illuminator

Last week, the Supreme Court declined to pause or vacate a lower court ruling barring Alabama from executing Jeffery Lee with nitrogen gas. The justices’ decision caught the attention of officials in Louisiana, the only other state that has carried out a nitrogen gas execution, according to the Louisiana Illuminator. Louisiana approved the execution method “in March 2024 because lethal injection drugs became scarce.” In a social media post, Louisiana Attorney General Liz Murrill described the delay in Lee’s execution as “a miscarriage of justice” and said Louisiana “will support Alabama in getting this matter quickly resolved.”

On Site

From the SCOTUSblog Team

Is the Supreme Court running behind?

When the justices take the bench today to issue opinions, the court will have 20 cases left to decide, with just under two weeks to go before the end of June. Amy explored how that compares to the past five terms.

Court News

Roy Moore files emergency application with Supreme Court on $8.2 million jury award

Roy Moore, the former chief justice of the Alabama Supreme Court, came to the U.S. Supreme Court on Tuesday, asking the justices to block a ruling by the U.S. Court of Appeals for the 11th Circuit from going into effect while he appeals that decision. If the lower court’s decision is not put on hold but he ultimately prevails, Moore told the justices, he may not be able to recover the $8.2 million that the jury awarded him.

Relist Watch

Bivens at the bedside

In his Relist Watch column, John Elwood highlighted two petitions for review that will be considered by the justices for a second time at today’s conference: Nielsen v. Watanabe and Mohan v. Watkins. Both petitions address what circumstances allow a prisoner to seek damages from prison officials.

Contributor Corner

Supreme Court may decide important case on immigration detention regarding attorneys’ fees

In his Immigration Matters column, César Cuauhtémoc García Hernández analyzed a petition for review asking the justices to decide whether attorneys who challenge the Department of Homeland Security’s decision to detain a migrant can recover fees from the government. If they cannot, “it will be much more difficult for migrants to find attorneys willing to bring lawsuits challenging the legal basis of their detention,” César contended.

A Closer Look

Pharms v. United States

In October 2014, the Supreme Court denied review in Jones v. United States, a case on “a judge’s power to impose a longer sentence by relying on conduct that the jury rejected as evidence of guilt,” as Lyle Denniston explained for SCOTUSblog. Lyle noted that this practice had long been the subject of debate, and that Justice Antonin Scalia was not happy with the court’s decision to turn down the case. “This has gone on long enough,” Scalia wrote in a dissent from the denial, which was joined by Justices Clarence Thomas and Ruth Bader Ginsburg.

Twelve years later, the court still hasn’t taken up the issue, although in 2023, four justices – Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – acknowledged its significance as they turned down several related petitions for review, signaling that they preferred to wait for the U.S. Sentencing Commission to address it. The next year, the commission did so, updating the federal sentencing guidelines in an attempt to limit judges’ authority to include acquitted conduct in their sentencing decisions. But the 2024 amendment did not end the practice of – or debate over – acquitted-conduct sentencing. This explains why the justices are again being asked to address it in a petition for review expected to be conferenced this week.

The instant petition centers on Keith Pharms, who in 2024 was convicted “of five criminal charges arising from his involvement in a shooting at a federal officer in the aftermath of a car theft and his subsequent conduct while in custody,” as the U.S. Court of the Appeals for the 11th Circuit explained when considering his case. One of those charges was “using a firearm during a crime of violence.” The jury convicted Pharms on this count, but it did not find that he had fired the weapon, which would have increased his minimum sentence.

Despite the jury’s decision, the district court judge treated Pharms as if he had been the shooter during sentencing, explaining that this conclusion was supported by a “preponderance of the evidence,” which is an evidence standard employed by judges during sentencing and which is a lower threshold than “beyond a reasonable doubt,” the standard that guides juries. Pharms was sentenced to 192 months in prison, reduced by his time served.

Pharms appealed to the 11th Circuit, contending that his sentence violated the Fifth and Sixth Amendments, which guarantee a right to due process and a right to a jury trial, respectively. Specifically, he asserted that acquitted-conduct sentencing deprived him of these rights by punishing him for conduct that was not proven beyond a reasonable doubt to a jury. The federal court of appeals rejected these arguments.

In his petition for review, Pharms emphasizes that justices “have repeatedly questioned the constitutionality of enhancing a criminal defendant’s sentence based on acquitted conduct” and urges the court to take up his case and “squarely address[]” whether acquitted-conduct sentencing violates the Fifth or Sixth Amendments. He also highlights a split between federal courts of appeals, which “uniformly have upheld” this sentencing practice, and state supreme courts, many of which “have held the practice unconstitutional.” “Indeed, if petitioner had been prosecuted in Georgia state court rather than federal court there, his sentence could not have been enhanced for conduct of which the jury had acquitted him,” according to the petition.

In the federal government’s response to Pharms’ petition, U.S. Solicitor General D. John Sauer asserts that the Supreme Court “has long upheld a district court’s authority to consider such conduct” proven “by a preponderance of the evidence” during the sentencing phase of a trial and asks the justices to deny review in Pharms’ case, as they have “recently and repeatedly” done with other petitions “raising similar questions.” If there is lingering confusion or concern surrounding acquitted conduct sentencing, he continues, it would be best left to Congress or the U.S. Sentencing Commission to address.

Additionally, Sauer, as Pharms did, points to the agreement between federal courts of appeals on this issue, but he presents it as evidence that the case is not worth the court’s time. “[U]niformity on the question presented is a reason to deny review, not to grant it,” Sauer writes.

Pharms v. United States is scheduled to be considered by the justices for the first time at their private conference on Thursday.

Disclosure: SCOTUSblog columnist John Elwood represents Keith Pharms. Elwood had no involvement with this Closer Look.

SCOTUS Quote

“The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books, and even to the burning of ‘witches.’”

— Justice Hugo Black in Beauharnais v. Illinois  (1952)

Moore was twice removed from his position as chief justice – once in 2003, when he disregarded a federal court order to remove a Ten Commandments monument that he had placed in the building where the Alabama Supreme Court sits, and again in 2016, for refusing to follow the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges, recognizing a constitutional right to same-sex marriage. The dispute in which he is asking the justices to intervene, however, stems from his 2017 campaign for a seat in the U.S. Senate, during a special election to fill the vacancy created by the resignation of Sen. Jeff Sessions to serve as attorney general during the first Trump administration.

Moore, who lost the special election to Democrat Doug Jones, filed a lawsuit in federal court against Senate Majority PAC, whose website describes the group’s mission as to “[p]rotect and expand the number of Democrats in the U.S. Senate.” Moore contended that the PAC created “a campaign advertisement that falsely portrayed Roy S. Moore as a man who solicited sex from a fourteen-year-old girl”—something, Moore says, that “was not true.”

A jury agreed with Moore that the PAC had defamed him – specifically, that the group had “published that falsehood with actual malice,” the standard for proving defamation under the Supreme Court’s landmark 1964 decision in New York Times v. Sullivan.

The PAC appealed to the 11th Circuit, which threw out the jury’s verdict, prompting Moore to come to the Supreme Court on Tuesday. He emphasized that if the mandate – the formal document allowing the 11th Circuit’s ruling to go into effect – is issued and the $8.2 million bond that guarantees payment of the jury’s verdict is released before he can ask the Supreme Court to review the lower court’s ruling, “the judgment he obtained after trial will be lost as a practical matter before this Court can determine whether review is warranted.”

The court of appeals, Moore wrote, is scheduled to issue the mandate “on or about” June 15. Justice Clarence Thomas, who initially fields emergency appeals from the 11th Circuit, has not yet instructed the PAC to respond to Moore’s filing.

A close look at the past five terms suggests that there is nothing especially unusual about the current term. To the contrary, this term falls comfortably within the norm. This is true both in terms of the sheer volume of cases left to decide as of June 17 each year and the number of high-profile or “major” cases (although the definition of such cases is, of course, subjective). The final decisions of the term came on July 1 in two of those five years; otherwise, the justices issued all of their decisions by the end of June.

In two years – 2025 and 2024 – the justices had more cases (21) left to decide as of June 17. Last year, the court ultimately issued 20 opinions and an order setting Louisiana v. Callais, the challenge to Louisiana’s congressional map, for reargument in the fall. At least five of those 21 cases last term were “major” ones:

• Trump v. CASA (argued May 15), in which the Trump administration had asked the court to limit the availability of so-called “universal” or “nationwide” injunctions;
• Mahmoud v. Taylor (argued April 22), a challenge by a group of Maryland parents to their inability to opt out of the use of LGBTQ-inclusive storybooks in school;
• United States v. Skrmetti (argued Dec. 4), a challenge to Tennessee’s ban on some forms of medical treatment, such as hormone therapy, for transgender minors;
• Louisiana v. Callais (argued March 24); and
• Free Speech Coalition v. Paxton (argued Jan. 15), a challenge to a Texas law requiring age verification for pornographic websites.

The court issued its final five decisions in argued cases (including CASA, Mahmoud, and Free Speech Coalition, as well as the reargument order in Callais) before its summer recess on June 27, 2025. It had released four opinions the day before that, June 26.

Similarly, in 2024, at least five of the court’s 21 cases remaining as of June 17 were “major” cases, including:

• Trump v. United States (argued April 25), in which the court was considering whether (then-former) President Donald Trump was immune from criminal prosecution for his acts as president;
• Loper Bright Enterprises v. Raimondo (argued Jan. 17), a challenge to the deferential standard that courts used to review a federal agency’s interpretation of ambiguous laws;
• Moyle v. United States (argued April 24), on whether a federal law requiring hospitals that receive federal funding to provide emergency care trumps an Idaho law criminalizing most abortions;
• United States v. Rahimi (argued Nov. 7), a challenge to the constitutionality of a federal law making it a crime for the subject of a domestic violence restraining order to have a gun; and
• Ohio v. EPA (argued Feb. 21), on whether to pause an EPA rule intended to reduce air pollution from power plants and other industrial facilities in 23 states.

The court issued its final three decisions in argued cases on July 1, 2024; that opinion announcement day followed a flurry of activity in which the court released two opinions on June 26, four opinions on June 27, and three on June 28.

In 2022 and 2023, the court had fewer opinions left to release – 18 as of June 17, 2022, and 17 as of June 17, 2023. But in both of those years, the court issued several opinions shortly before June 17 – in 2023, it issued a total of five opinions on June 15 and June 16, while in 2022 it issued six opinions on June 15. Or, to put it another way, the court still entered the second half of June in both years with more than 20 cases left to decide.

2022 also rivaled this year in terms of the number of “major” cases – some of which, like this year, are true blockbusters – left to decide, including:

• New York State Rifle & Pistol Association v. Bruen (argued Nov. 3), a challenge to the constitutionality of New York’s concealed-carry licensing scheme;
• Dobbs v. Jackson Women’s Health Organization (argued Dec. 1), a challenge to a Mississippi law that bans almost all abortions after the 15th week of pregnancy, and in which the state had asked the court to overturn its landmark ruling in Roe v. Wade;
• Kennedy v. Bremerton School District (argued April 25), a lawsuit by a football coach who was fired because he prayed on the field after games;
• West Virginia v. EPA (argued Feb. 28), on the EPA’s power to regulate greenhouse gas emissions;
• Biden v. Texas (argued April 26), on whether the Biden administration had to continue to enforce a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court; and
• Carson v. Makin (argued Dec. 8), a challenge to a Maine law that banned the use of public funds for students to use at private schools that provide religious instruction.

The court issued the final two opinions of the term on June 30, 2022; it had also released two opinions on June 29, 2022, and three opinions on June 27, 2022.

The court followed a very similar schedule the following year, when it had five major cases left to release as of June 17, 2023:

• Moore v. Harper (argued Dec. 7), on whether the Constitution gives state legislatures nearly complete authority to regulate federal elections, with little to no interference from state courts;
• Students for Fair Admissions v. Harvard College (argued Oct. 31), challenges to the constitutionality of the undergraduate admissions programs at Harvard College and the University of North Carolina;
• Biden v. Nebraska and Department of Education v. Brown (argued Feb. 28), challenges to the Biden administration’s student-loan debt relief program; and
• 303 Creative v. Elenis (argued Dec. 5), a lawsuit by a Christian website designer who wanted to create wedding websites – but not for same-sex couples.

The court finished issuing opinions on June 30, 2023, with three that day. It issued three each on June 29 and June 27.

Much like this year, the court had 20 cases left to decide as of June 17, 2021. Five of those cases were “major” ones:

• Fulton v. Philadelphia (argued Nov. 4), a challenge by a faith-based foster-care agency to the city’s refusal to refer cases to it because of the agency’s bar on certifying unmarried or same-sex married couples as foster parents;
• California v. Texas (argued Nov. 10), a renewed challenge to the constitutionality of the Affordable Care Act’s individual mandate;
• Mahanoy Area School District v. B.L. (argued April 28), a high school cheerleader’s First Amendment challenge to her suspension from the team, based on social media postings made outside of school;
• Americans for Prosperity v. Bonta (argued April 26), a challenge to the constitutionality of California’s requirement that charities and nonprofits operating in the state provide the state attorney general’s office with the names and addresses of their largest donors; and
• Brnovich v. Democratic National Committee (argued March 2), a challenge to the legality of two Arizona voting restrictions.

The court finished releasing opinions in argued cases on July 1, 2021, when it released two opinions. It issued five opinions on two opinion days –June 28 (two opinions) and 29 (three) – leading up to that.

As of Wednesday, some of the major cases remaining for the court to decide this term include:

• Trump v. Slaughter (argued Dec. 8), the challenge by FTC commissioner Rebecca Slaughter to Trump’s firing of her without cause;
• Little v. Hecox and West Virginia v. B.P.J. (argued Jan. 13), challenges to state laws in Idaho and West Virginia that prohibit transgender women and girls from competing on women’s and girls’ sports teams;
• Trump v. Cook (argued Jan. 21), involving the Trump administration’s attempt to fire Lisa Cook, a member of the Federal Reserve’s Board of Governors, based on allegations (that she disputes) of mortgage fraud;
• United States v. Hemani (argued March 2), a challenge to the constitutionality of a Texas man’s conviction under a federal law that prevents the users of illegal drugs from having a gun;
• Watson v. Republican National Committee (argued March 23), a challenge to a Mississippi law that allows mail-in ballots to be counted as long as they are postmarked by, and received within five days of, Election Day; and
• Trump v. Barbara (argued April 1), on the legality of Trump’s executive order seeking to restrict birthright citizenship, the virtually automatic guarantee of citizenship to everyone born in the United States.
• Mullin v. Doe (along with Trump v. Miot) (argued April 29), a challenge to the Trump administration’s decision to end Temporary Protected Status for Haitian and Syrian citizens in the United States.

There is no way to know exactly when the court will issue these and the other remaining decisions, or when it will begin its summer recess. But if recent years provide any clues, it seems very likely that the justices will finish by July 1 – if not before – and that they could finish with a flurry of opinion days in the run-up to whatever the final day proves to be.

October Term 2025 is drawing to a close in just a few weeks. And before the Supreme Court can close the books on the term, it needs to zero out all of those relisted cases.

Since our last post, the Supreme Court has been busy at both ends of the relist spectrum – three grants, a like number of notable denials, and Justice Samuel Alito noting his disagreement with the court’s decision not to grant review.

On the grant side: the court took up Kian v. Florida, a direct challenge to Williams v. Florida asking whether the Sixth Amendment's jury trial guarantee requires a 12-person jury, a question Justice Neil Gorsuch (the author of Ramos v. Louisiana prohibiting nonunanimous juries) has been signaling he very much wants to revisit.

The court also granted review in Guerrero v. Johnson, a capital habeas case concerning when such a claim could not have been previously brought under the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, this case asks whether an Atkins v. Virginia intellectual disability claim that was technically available for decades became “newly available” (and thus can be raised) when the DSM-5 changed the diagnostic framework for assessing intellectual disability, a question that has divided the circuits.

And in Genalo v. Black, the court granted the solicitor general’s petition asking whether the due process clause ever requires bond hearings for noncitizens detained under the Immigration and Nationality Act’s mandatory detention provision. This also breaks what has been a notably rough stretch for the government in terms of getting cases granted. A twist: One of the respondents (Black) withdrew her appeal, and the other (G.M.) has been out of ICE custody since 2022. The court granted the case limited to only G.M., and added the question whether her case was now moot.

On the denial side, the court turned away two Alabama capital cases. In Alabama v. Powell – involving a murder conviction reversed on appeal after the Alabama Court of Criminal Appeals held that a prosecutor had impermissibly commented on the defendant’s decision not to testify – Alito, joined by Justice Clarence Thomas, dissented, arguing the decision below directly contradicts 1988’s United States v. Robinson, which found no constitutional violation on similar facts; Alito and Thomas noted they would grant and summarily reverse on the same grounds in the companion Alabama case.

The court also denied review in E.D. ex rel. Duell v. Noblesville School District, in which a high school freshman alleged that her school violated the First Amendment by refusing to approve flyers advertising her Students for Life club because the flyers depicted students holding “Defund Planned Parenthood” signs. Alito dissented alone, arguing that the court should grant review to clarify the relationship between 1988’s Hazelwood School District v. Kuhlmeier (which allows schools broad latitude to regulate school-sponsored expression) and the court’s larger line of government-speech decisions.

Now on to new business. There are 180 petitions and applications on the docket for this week’s conference. Two are being considered for a second time.

Is Carlson on life support – or already gone?

Both of this week’s new relists involve a remedy that the Supreme Court has spent the past several decades whittling away at. In the 1971 case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the court recognized an implied damages action under the Fourth Amendment against federal officers for a warrantless home search and arrest. It later extended that remedy twice, most recently in Carlson v. Green (yes, I just referred to a 1980 decision as “recent”), which allowed the estate of a federal prisoner to sue prison officials who allegedly violated the Eighth Amendment by failing to treat his serious asthma attack, resulting in his death. Since then, the court has repeatedly said that recognizing new Bivens actions is a “disfavored judicial activity,” and has instructed lower courts to ask first whether a claim differs in any meaningful way from the three existing Bivens contexts, and then, if it does, whether special factors counsel hesitation from extending it further. The problem, as often happens when the Supreme Court says “don’t extend this, but we’re not overruling it,” is that lower courts have been left to decide whether Carlson remains a functioning precedent or has become a dead letter.

Nielsen v. Watanabe is the cleaner of the two vehicles because it involved a convicted prisoner (not a pretrial detainee) and thus only implicates one constitutional provision, the Eighth Amendment. Kekai Watanabe was in federal custody at the Federal Detention Center in Honolulu when he was assaulted in a gang-related fight. He says he told correctional officers that he was experiencing headaches and pain and later described his condition to Francis Nielsen, a staff nurse, who allegedly denied his request to be taken to a hospital and treated him with over-the-counter medication. Months later, Watanabe was diagnosed with a fractured coccyx and bone chips in surrounding soft tissue. He sued Nielsen and others under Bivens, alleging deliberate indifference to his serious medical needs.

The district court dismissed, reasoning that Watanabe’s claim presented a new Bivens context because his injury was not comparable to the fatal medical emergency in Carlson and because he had access to the Bureau of Prisons’ administrative remedy program (which allows inmates to seek administrative review of issues relating to their detention). A divided panel of the U.S. Court of Appeals for the 9th Circuit reversed. The panel held that Watanabe’s claim did not meaningfully differ from Carlson because both involved the alleged deliberate indifference of federal prison officials to serious medical needs. It further held that the existence of alternative remedial structures, including the ARP, did not change things.

Eleven judges dissented from denial of rehearing en banc. Judge Ryan Nelson, joined by nine others, said the 9th Circuit had disregarded the Supreme Court’s Bivens instructions and had deepened circuit splits over whether alternative remedies and differences in the severity and immediacy of medical harm can make a context “new.” Judge Daniel Collins wrote separately to say that, under the Supreme Court’s current standards, Carlson may have been so thoroughly hollowed out that it is hard to know “what, if anything, is left” of it.

Nielsen’s petition presses that point, arguing that if an on-scene death after egregious mistreatment is Carlson, a fractured coccyx treated with over-the-counter medication and later referred for outside care is something else. Watanabe responds that his claim is Carlson all over again: same constitutional right, same kind of plaintiff, same kind of defendant, same alleged failure to provide adequate medical care. He says the supposed splits are exaggerated, that an inmate need not die to bring a Carlson claim, and that the ARP does not create a per se new context because Carlson remains binding within its established domain.

Mohan v. Watkins arrives as the solicitor general’s companion case. Jordan Watkins was detained at the Metropolitan Correctional Center in Chicago, first as a pretrial detainee and then, briefly, as a convicted prisoner before transfer. He underwent hernia-repair surgery at an outside hospital. After returning to MCC, he says, he immediately experienced severe groin pain and swelling, including testicles swollen “to the size of a grapefruit,” a phrase that manages to be both clinically descriptive and quite culinarily off-putting. Watkins alleges that he told MCC medical staff, including Dr. Brij Mohan, about his condition; that staff dismissed the swelling as a routine side effect; that the medication they gave him did not work; and that they denied his request for follow-up care with his surgical team. He later underwent another surgery after transfer to a separate facility. Watkins sued the United States under the Federal Tort Claims Act and brought Bivens claims against Mohan and others.

The district court dismissed the case, but the U.S. Court of appeals for the 7th Circuit reversed, holding that Watkins’ Eighth Amendment claim for constitutionally inadequate medical care “fit squarely within the Bivens claim recognized by Carlson,” while remanding the FTCA claim for further proceedings. Judge Thomas Kirsch dissented in part, concluding that Watkins’ claim differed meaningfully from Carlson because it involved chronic post-surgical pain, a pretrial detention facility, and medical care that was less urgent and less severe than the fatal asthma attack in Carlson.

The petitioners in both cases – the solicitor general in Mohan, Nielsen (represented by Supreme Court heavy hitter Jeff Lamken) in his own case – argue that the circuits are badly split in two distinct ways, and they want the justices to clean it all up. The first split concerns whether the existence of the Bureau of Prisons’ ARP grievance process (which postdated Carlson’s death and 1980’s Carlson did not discuss it, but which has existed since 1979) means that later-arising prisoner medical-care suits involve a “new context” to which Carlson should not be extended. The U.S. Court of Appeals for the 3rd, 10th, and 11th Circuit answered yes. Several other circuits, including the U.S. Courts of Appeals for the 1st and 9th Circuits, disagree. The second split concerns whether the severity of a plaintiff's injury can render the context “new” as compared to Carlson’s death-by-asthma facts. The U.S. Courts of Appeals for the 3rd, 7th, and 9th Circuits say it cannot (a plaintiff need not suffer death or a life-threatening injury to bring a Carlson claim); the U.S. Courts of Appeals for the 1st, 10th, and 11th Circuits say less severe or non-emergency injuries do indeed create a new context.

The vehicle question is where things get interesting. The government’s petition in Mohan actually recommends that the court grant Nielsen instead and hold Mohan, noting that Nielsen arises purely under the Eighth Amendment and avoids complications from Watkins’ pretrial-detainee status, which implicates the Fifth Amendment as well. Nielsen’s own supplemental brief enthusiastically concurs, for obvious reasons. By the time of the reply, however, the government had softened its preference, suggesting that the court could grant Nielsen, Mohan, or both and consolidate them. The respondents, naturally, insist neither case warrants review. Watanabe’s brief in opposition counters that the circuit decisions largely reflect case-specific factual variations rather than entrenched doctrinal conflict, and that further consideration by the lower courts is warranted.

The court has been dancing around Carlson's viability for years, most recently reaffirming it exists in Goldey v. Fields last term, while simultaneously making it harder and harder to use. Judge Collins of the 9th Circuit, dissenting from the denial of rehearing en banc in Nielsen, put it most directly: the court's current standards, “if faithfully applied, would seemingly finish off Carlson entirely,” and lower courts could use some guidance as to “what, if anything, is left of Carlson.”

We’ll have a better idea Monday about whether the court is finally ready to answer that question – or to let the circuits keep litigating the afterlife of a 46-year-old precedent one broken bone at a time. But I think the odds of a grant in one or both of these cases looks pretty good.

New relists

Nielsen v. Watanabe, 25-417

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in recognizing a Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics cause of action.

(Relisted after the June 11 conference.)

Mohan v. Watkins, 25-952

Issue: Whether Carlson v. Green permits an inmate’s claim that prison staff at a pretrial detention center violated the Fifth and Eighth Amendments through deliberate indifference to an inmate’s chronic pain after a surgery.

(Relisted after the June 11 conference.)

Returning relists

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

Issue: Whether ammunition feeding devices with the capacity to hold more than 10 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, and June 11 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, and June 11 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, and June 11 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, and June 11 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, and June 11 conferences.)

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

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

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

McCarthy v. Hernandez, 25-748

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

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

Newberry v. Texas, 25-862

Issues: (1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated Brady v. Maryland by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.

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

Grayson v. United States, 25-851

Issue: Whether 18 U.S.C. § 2515’s exclusionary rule, which provides that “no part of the contents” of an intercepted communication “and no evidence derived therefrom may be received in evidence in any trial, hearing, or proceeding” before any state or federal court or governmental body “if the disclosure of that information” would violate Title III of the Omnibus Crime Control and Safe Streets Act of 1968, contains an unwritten clean-hands exception.

(Relisted after the June 4 and June 11 conferences.)

United States v. Carter, 25-885

Issue: Whether perceptions of law enforcement that a court attributes to a particular racial group are a relevant factor in the Fourth Amendment analysis of whether a member of that group has been seized.

(Relisted after the June 4 and June 11 conferences.)

ICE, which operates a network of approximately 200 immigration detention facilities, is using an infusion of funding to detain tens of thousands of migrants daily. The One Big Beautiful Bill Act, which President Donald Trump signed on July 4, 2025, gives ICE almost $30 billion to hire enforcement officers and support staff, plus another $45 billion to pay for immigration detention facilities, through the end of September 2029. Relying on this funding, the agency has increased the number of people it detains. In January 2025, President Joe Biden’s last month in office, ICE held approximately 40,000, on average, each day. ICE now regularly detains more than 60,000 people per day, a drop from almost 72,000 individuals who were detained, on average, in January.

As ICE has detained more people, advocates for migrants have turned to federal courts to obtain their clients’ release. Attorneys have filed more than 52,000 petitions for writs of habeas corpus, which allows people who are detained to challenge the legal basis for their confinement, in federal district courts around the country.

In the midst of this, the Supreme Court is being asked to decide whether attorneys who challenge the Department of Homeland Security’s decision to detain a migrant can recover fees from the government. The Equal Access to Justice Act makes attorneys’ fees available to parties that successfully bring “any civil action (other than cases sounding in tort)” against the federal government unless the government’s position was “substantially justified.” Two courts of appeals – the U.S. Courts of Appeals for the 4th and 5th Circuits – have concluded that habeas challenges to immigration detention aren’t civil cases covered by EAJA. In their view, habeas is instead a “hybrid” criminal proceeding and civil action. Three circuits disagree. Relying on a long history of courts describing habeas as a “civil” action, the U.S. Courts of Appeals for the 2nd, 3rd, and 10th Circuits consider habeas a type of civil lawsuit that falls within EAJA’s broad attorneys’ fees language (although the 2nd Circuit determined the government’s position to be “substantially justified” in that case).

The justices are currently considering whether to hear arguments in a case challenging the 4th Circuit’s position. In April, Kevin Isaac Montoya Palacios asked the court to intervene on his behalf. A citizen of El Salvador, Montoya Palacios received withholding from removal, a form of humanitarian protection from deportation, in September 2023. He then lived in the U.S. and states that he met regularly with ICE officials for more than two years, until December 2025, when ICE agents arrested him during a routine appointment. With the assistance of counsel, Montoya Palacios quickly filed a habeas petition, which U.S. District Judge George Russell granted. Despite having won, Russell denied Montoya Palacios’s request for attorneys’ fees under EAJA, citing the 4th Circuit’s position that habeas claims related to immigration detention are not a “civil action.”

Last month, the U.S. Solicitor General, representing the federal government, also asked the justices to get involved. Like Montoya Palacios, the solicitor general acknowledges that the federal courts of appeals are divided on whether EAJA permits attorneys to recover fees in cases challenging the legality of a migrants’ confinement. Both parties also agree that there is little chance that the lower courts will settle on a single interpretation of EAJA’s attorneys’ fees provision that is applicable nationwide.

The justices are scheduled to consider the parties’ request during their June 18 private conference, though it’s possible they won’t act on it then. If they grant the request, the court will likely hear arguments in the term beginning in October.

The existing disagreement among the circuits creates a split-screen effect. In some parts of the country, attorneys can request fees when they take on habeas immigration cases, whereas attorneys in other parts of the country can’t. Since federal district courts have jurisdiction over habeas claims based on the physical location in which a person is detained, attorneys whose clients are held in the 4th and 5th Circuits can’t hope to recover fees no matter how flagrant the government’s conduct.

The inability to recover fees from the federal government when ICE illegally detains someone in the those circuits matters because almost half of detained migrants are detained there. Housing more than 500 people, Virginia’s Farmville Detention Center is the largest of five facilities in the 4th Circuit, although it’s small in comparison to facilities in the 5th Circuit. Louisiana, Mississippi, and Texas – the three states within the 5th Circuit – are home to several of the largest prisons in ICE’s network. Of the 40 facilities that the agency uses in these three states, 11 held at least 1,000 people as of early April, the last date for which ICE has released data. Two housed more than 2,000 people: the Adams County Correctional Center in Mississippi and the East Montana Camp near El Paso, Texas. Combined, ICE held almost 47 percent of its total detained population – 28,180 of 60,311 – in 5th Circuit facilities in April.

If the court agrees to add Montoya Palacios to its calendar, its decision is likely to have a substantial impact on ICE’s detention operations. Without the ability to recover attorneys’ fees, it will be much more difficult for migrants to find attorneys willing to bring lawsuits challenging the legal basis of their detention. And if lawyers do not challenge ICE in court, then judges will be unable to oversee the massive incarceration operation that the agency has built up.

At the Court

On Tuesday, Haitian citizens asked the court to dismiss without deciding a dispute over the Trump administration’s effort to end their participation in the Temporary Protected Status program. For more on the filing, see the On Site section below.

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

After any opinion announcements tomorrow, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from that conference are expected on Monday, June 22, at 9:30 a.m. EDT.

Morning Reads

Orthodox Jew asks Supreme Court to hear case after city allegedly targeted his home prayer group

Kristine Parks, Fox News

Daniel Grand, a Jewish man who lives in Ohio, “is asking the U.S. Supreme Court to revive his lawsuit” against city officials in University Heights, who interfered with his plan to host a prayer group in his home in January 2021. “After a neighbor learned of the planned gathering and complained to city officials, Grand received a cease-and-desist letter, and then-Mayor Michael Dylan Brennan told him he would need a special-use permit to comply with local zoning rules governing religious assemblies,” according to Fox News. In his lawsuit, “Grand argues the city discriminated against him based on religion, saying officials would not have objected to a secular social gathering at his home. ... However, a federal district court and a subsequent appeals court dismissed key portions of the case as unripe, ruling that he had not completed the city’s permitting process or obtained a final zoning decision before suing.” In his petition for review, Grand asked the Supreme Court “to clarify whether local governments can issue credible threats that chill religious exercise, force homeowners to a public land-use approval process for private prayer and avoid judicial review by later changing their positions.”

Jury service builds trust in courts as public confidence erodes

Gabriel Tynes, Courthouse News Service

New research highlights declining public trust “in the U.S. judiciary, particularly the Supreme Court,” and points to a unique solution: jury service. The researchers determined that “people who have served as jurors within the past five years viewed state courts as more legitimate, reported higher overall trust in courts and rated judges more positively on traits such as trustworthiness, fairness and competence,” according to Courthouse News Service. However, the study also noted that fewer Americans have a chance to serve on a jury today than they did in the past “amid a sharp drop in jury trials.” “With jury opportunities dwindling, the study authors call for expanded, lifelong civic learning about the courts and government.”

Study finds law grads are 'stacking' judicial clerkships, curtailing opportunities for others

Karen Sloan, Reuters (paywalled)

A new study shows that “[j]udicial clerkship ‘stacking’ – where law graduates complete two, three, or even four coveted clerkships with sitting judges before entering the legal workforce – is increasingly shrinking the pool of clerkships available to others,” according to Reuters. “The federal judicial clerkship has evolved from a brief detour into a mini career,” the study’s three authors explained. Their new report built on earlier research showing that “while some Supreme Court clerks in the 1980s were hired right out of law school, today’s high court clerks on average arrive with more than two prior clerkships.”

The Supreme Court Might Fix Something for Once

Matt Ford, The New Republic

In a column for The New Republic, Matt Ford celebrated the Supreme Court’s decision to take up Kian v. Florida, a case on the constitutionality of six-person juries. Ford contended that such juries are a remnant of the Jim Crow-era, when some southern states sought to “eliminate Black civic and political participation.” “The stage is now set for the Supreme Court to further strengthen one of the great bulwarks of American liberty—in the few states, at least, that have gotten away with diminishing it for so long,” Ford wrote.

Why the Supreme Court is fighting over deadly gas and firing squads

Ian Millhiser, Vox (paywalled)

In an analysis for Vox, Ian Millhiser reflected on the significance of two recent Supreme Court decisions in favor of men on death row. Last week, in Lovelace v. Lee, the court declined to stay or vacate a lower court ruling barring Alabama from executing Jeffery Lee with nitrogen gas. And last month, “the justices decided not to decide Hamm v. Smith,” “thus leaving in place a lower court ruling saving a man from execution” because he was determined to be intellectually disabled. Millhiser concluded that it is “too soon to tell” whether the court is growing less supportive of the death penalty, but contended that “Lovelace should give death row inmates, their loved ones, and capital defense lawyers some hope that, even if they cannot save these inmates’ lives, they may be able to make their executions less brutal.”

On Site

Court News

Haitian citizens ask justices to throw out dispute over whether Trump administration properly ended protected status for them

A group of Haitian citizens who are beneficiaries of a program that allows them to stay in the United States came to the Supreme Court on Tuesday, asking the justices to throw out a dispute over whether the Trump administration can end the program, known as Temporary Protected Status, for Haiti. The justices heard oral arguments in the case in late April, but the Haitian citizens told the court on Tuesday that it should toss the case without deciding it – a procedure known as “dismiss as improvidently granted” – based on “newly discovered facts [that] bear directly on the merits of” their claims.

Contributor Corner

Nine days in June

In his Courtly Observations column, Erwin Chemerinsky revisited what he believes to be “the most extraordinary June in the modern Supreme Court,” examining a nine-day period in June 2022 during which “the court overruled Roe v. Wade, greatly expanded the scope of gun rights, dramatically weakened the wall separating church and state, and imposed a significant new limit on the power of federal administrative agencies.”

Contributor Corner

How Supreme Court precedents die before they are overruled

In his Empirical SCOTUS column, Adam Feldman explored the process by which certain Supreme Court precedents have lost authority over time without being formally overruled. Instead, they were “narrowed, distinguished, criticized, or confined” to their facts, and treated “as a problem to be managed,” rather than “as a rule to be applied.”

Podcasts

Advisory Opinions

The Trump Administration’s Internal Arguments Over Habeas Corpus

Sarah Isgur and David French break down the most recent cert grants out of the Supreme Court’s order list and President Donald Trump’s argument for suspending habeas corpus.

A Closer Look

Per Curiam Opinions

Although most opinions have a specific justice assigned as their author, that is not always the case. As court watchers are well aware, a decision can be “per curiam” – in which the court does not identify which justice wrote it. Last term, for example, the court issued 11 per curiam opinions on the merits docket.

Per curiam is a Latin phrase which translates to “by the court.” Historically, per curiam opinions were understood to indicate that a particular case was “uncontroversial, obvious, and did not require a substantial opinion.” Accordingly, these opinions were typically no more than a few sentences long and did not have separate concurrences and dissents authored by individual justices.

In the early 1900s, that began to change when Justice Oliver Wendell Holmes Jr. authored the first dissent from a per curiam opinion in the 1909 case of Chicago, Burlington, & Quincy Railroad Co. v. Williams. The per curiam opinion called the questions raised “essentially the same” as those of an earlier case and therefore dismissed it based on that previous decision. Holmes, along with Justices Edward White and William Moody, disagreed because they saw the case as one presenting “questions of pure law” which “should be answered.” By the middle of the 20th century, per curiam opinions accompanied by concurrences and dissents became relatively normal practice.

Along with the shift in unanimity came a shift in how per curiam opinions were used. Some scholars have noted that, in the middle of the 20th century, the justices altered their use of per curiam opinions from a way to resolve uncontroversial cases summarily to a more “strategic device” allowing for the quick resolution of time-sensitive cases, as well as a “protective shield” when dealing with controversial issues. According to these scholars, because no justice signs their name to the opinion, there is no individual to “blame” when addressing (or perhaps not addressing) tough questions over such issues as race, controversial speech, and military actions during times of war.

One of the most famous per curiam opinions came in Bush v. Gore, where the court reviewed the Florida Supreme Court’s decision ordering an immediate statewide recount in the 2000 presidential election. In addition to the per curiam opinion halting the recount, the justices produced five signed opinions: a concurrence by Chief Justice William Rehnquist which Justices Antonin Scalia and Clarence Thomas joined, along with dissents by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. One scholar offered several reasons why the court may have chosen to issue Bush v. Gore as a per curiam opinion, including the court’s attempt to create an “aura of consensus” in such an important matter.

Given the increased number of cases on the court’s interim docket, such decisions have become even more common, with the majority often (and controversially) reversing lower courts through a brief per curiam order.

SCOTUS Quote

MR. LAMKEN: “… [I]t's just why you have, for example, 14 amicus briefs on our side and 14 amicus briefs on the other side.”

JUSTICE GORSUCH: “I've got a lot of amicus briefs.”

MR. LAMKEN: “Yes.”

JUSTICE GORSUCH: “I've got so many friends I can hardly stand it.”

— Amgen Inc. v. Sanofi  (2023)

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. In 2010, shortly after a powerful earthquake struck the country, causing extensive damage and hundreds of thousands of deaths, Janet Napolitano – then the DHS secretary – designated Haiti under the TPS program. The designation initially lasted for 18 months but was repeatedly re-extended until 2025.

After Noem announced that the Trump administration planned to end Haiti’s TPS designation, a group of Haitian nationals in the United States went to federal court in Washington, D.C., where they argued both that the decision to end the TPS designation violated the federal law governing administrative agencies and that it violated the Constitution because it was intended to discriminate against them based on their race.

The lower courts ruled in favor of the Haitian nationals and barred the government from ending the program while their challenge continued. The Trump administration then went to the Supreme Court, asking the justices to pause both that ruling and a similar one in favor of Syrian nationals. The justices temporarily left the lower court orders in place, but they agreed to take up both cases and heard arguments on April 29.

The Haitian nationals on Tuesday asked the justices to dismiss their case without ruling on it, pointing to “new facts” that they said show that “the termination of Haiti’s TPS designation was a preordained outcome motivated by discriminatory” intent. They told the justices that they had obtained new documents from the government indicating that Noem’s July 1 notice terminating the TPS program for Haiti “relied on a knowingly false statement—namely, the assertion that” Noem “had consulted with the Department of State when in fact she had not.” Moreover, they added, the documents show that the July 1 notice “was based on an unprecedented rationale” for ending Haiti’s TPS status – the U.S. national interest – and was “published only after a political appointee issued an unusual eleventh-hour verbal directive instructing career officials to abandon their recommendation that Haiti’s TPS designation be extended.” These additional facts could, if true, bolster the Haitian nationals’ argument that Noem’s decision to end the TPS program for Haiti had not complied with the federal law governing administrative agencies – for example, because Noem had not followed the procedures required by law and because she had not provided an adequate explanation for her decision.

Because the facts of the case continue to unfold, the Haitian nationals argued, the court should not now decide whether they “are likely to succeed on the merits of their claims.” Instead, they wrote, the court should send the case back so that the lower courts can issue a final decision on the merits after all of the fact-finding has been completed.

The motion to dismiss the case applies only to the challenge by Haitian nationals; even if the court were to grant it, it would not necessarily affect the justices’ ability to rule on the case involving Syrian nationals.

That was the story of Lemon v. Kurtzman, decided in 1971. For decades, the court invoked, revised, sidestepped, and criticized Lemon’s approach to the establishment clause of the First Amendment. The formal reports still contained the case. Lawyers still cited it. Lower courts still had to account for it. Yet the governing center of gravity had shifted. When the court later said in 2022’s Kennedy v. Bremerton School District that it had “long ago abandoned” Lemon, the statement confirmed a process already visible across years of doctrine.

That process is not unique to Lemon. Supreme Court precedents often lose authority gradually. But how this authority wanes varies dramatically. A case may be narrowed, distinguished, criticized, or confined to its facts. It may also be overruled sub silentio. A later line of decisions may begin doing the doctrinal work once assigned to the original case. The court may refuse to extend a precedent while leaving the original holding formally intact. And in some instances, it may condemn a decision as a constitutional failure without overruling it in the ordinary sense.

This article takes a look at the many ways in which precedents meet their demise.

Breaking down the data

Several major precedents now sit somewhere between full vitality and formal overruling. 1971’s Bivens v. Six Unknown Named Agents, allowing persons to bring certain suit against federal officers, remains on the books, but the court has made any extensions of it exceedingly difficult to recognize. Humphrey’s Executor v. United States, for nearly a century a central case on independent agencies and the president’s power to remove the heads of them, is under renewed pressure, especially with the soon-to-be-decided case of Trump v. Slaughter that directly questions this precedent. Employment Division v. Smith continues to govern free exercise claims under the First Amendment, yet the court’s more recent doctrines have narrowed the field of laws that receive such treatment.

Other precedents have already completed different versions of the same arc: Abood v. Detroit Board of Education, which upheld that public sector non-union employees could be required to pay union fees, was overruled in Janus v. AFSCME, while Korematsu v. United States, which upheld the internment of Japanese-American citizens during World War II, was repudiated as having “no place in law under the Constitution.”

Citation data offer one way to trace these developments. The numbers cannot answer by themselves whether a precedent remains healthy. They can, however, identify patterns: how much recognition a case receives, how often courts cite it negatively, how frequently the Supreme Court itself participates in that negative treatment, and whether citations are rising or falling in recent years.

The decisions have large disparities in their overall cite counts. Bivens has more than 38,000 citations in the data, far more than the other cases examined here. It also has the largest raw number of negative citations. That figure makes sense given the field. Bivens operates across criminal procedure, federal law enforcement, prison, detention, immigration, and constitutional-remedies litigation. A precedent that governs recurring claims against federal officers will naturally appear in far more opinions than a case about, say, public-sector union fees.

The more revealing figure is negative-treatment share, or negative citations as a percentage of total citations. On that measure, Employment Division v. Smith has the highest rate in this group, at 13.4%. Lemon follows at 9.2%. Humphrey’s Executor and Korematsu sit near 5%. Bivens, despite its large raw number of negative citations, has a negative-treatment share of only 1.7%.

The Supreme Court’s role adds another layer. Before Janus, Abood had 58 negative citations, seven of them from the Supreme Court. That is a notable share for a precedent that had not yet been overruled. It suggests an erosion pattern driven less by lower-court resistance than by signals from the court itself. In other words, lower courts continued to work within Abood while the Supreme Court increasingly treated the precedent as vulnerable.

Recent citation patterns also help separate dormant precedents from live ones. Humphrey’s Executor has only 527 total citations in the data, but 118 of them occurred from 2022 through 2026. That recent concentration reflects the renewed salience of presidential removal and independent-agency doctrine. Smith presents a different picture: a larger citation universe, the highest negative-treatment share in this set, and continued litigation over its meaning.

The cases fall into several recurring patterns. Abood shows erosion followed by express overruling. Lemon shows functional abandonment through replacement of the governing test. Bivens shows confinement without formal overruling. Korematsu shows historical repudiation. Humphrey’s Executor and Smith show live questioning. Together, they illustrate how much precedential change occurs before the court uses the word “overruled.”

Erosion followed by overruling: Abood

The clearest example in the group is Abood v. Detroit Board of Education. Decided in 1977, Abood permitted public-sector unions to collect agency fees from nonmembers for collective-bargaining expenses, while barring forced support for ideological or political activities. For decades, that compromise structured First Amendment challenges to public-sector union funding.

By the time the court decided Janus v. AFSCME in 2018, however, Abood had already been weakened. The data show 825 total citations before Janus, 58 negative citations, and seven Supreme Court negative citations. That produces a negative-treatment share of about 7%. The Supreme Court’s role was striking here: Roughly 12% of the negative citations came from the court itself.

That makes Abood a top-down erosion case. Lower courts continued to apply the precedent. The Supreme Court, meanwhile, increasingly framed the precedent as an anomaly in First Amendment law. Finally, Janus completed things. As Justice Samuel Alito, writing for the majority, declared in that case:

Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.

The Janus language matters because it shows the final stage of an erosion sequence. The court did not merely announce a new rule. It described the earlier precedent as poorly reasoned, inconsistent with later First Amendment doctrine, practically problematic, and insufficiently supported by reliance interests. That is the classic pathway from criticism to overruling: a precedent first becomes unstable in the court’s own opinions, then becomes untenable when the votes align to reconsider it directly.

Functional abandonment: Lemon

Lemon v. Kurtzman, which created a three-part test to determine if a government action violated the establishment clause, followed a different path. The court did not dispatch it with the same clean formal overruling language that Janus used for Abood. Yet its decline is hard to miss.

For years, the court treated the Lemon test as both familiar and unstable. It remained part of establishment clause vocabulary, especially in the lower courts. But the Supreme Court repeatedly declined to make it the exclusive test. In some settings, particularly cases involving public religious symbols, legislative prayer, monuments, and longstanding practices, the court turned instead to history, tradition, and context instead.

The progression can be seen in the court’s own language. First, two years after being decided, Lemon became a “helpful signpost.” Then, following decades of criticism inside and outside the court, it was declared “not useful” in certain cases. Finally, in Kennedy v. Bremerton School District, the court said it had “long ago abandoned” the Lemon test.

That sequence captures functional abandonment. Lemon did not disappear because courts stopped citing it. It disappeared because the court stopped treating the test as the organizing framework for establishment clause analysis before finally bringing it to an end.

Confinement without overruling: Bivens

Bivens v. Six Unknown Named Agents presents a different problem for citation-based analysis. By raw numbers, it appears to be the largest erosion story in the dataset. It has more than 37,650 citations, including 635 negative citations. No other case in this group comes close.

The scale is misleading unless its context is taken into account. Bivens sits at the center of a large and recurring litigation universe. It is cited in cases where individuals seek to sue federal officers, and thus touches on federal law enforcement, prison conditions, immigration detention, national security, criminal investigations, and constitutional remedies. That makes its citation profile very different from a narrower precedent such as Abood, which governed a specific First Amendment question involving public-sector union fees.

The modern court has repeatedly treated new Bivens claims as disfavored, especially when the claim arises outside of its original Fourth Amendment search-and-seizure context.

This pattern is confinement. The court leaves the original case in place while shrinking the circumstances in which it can do new work. Hesitation becomes the governing rule. Congress’ failure to create a damages action, the presence of alternative remedial schemes, institutional competence, and other concerns all become reasons for courts to stop short.

The court has not erased the original case. It has made the original case difficult to generalize.

Historical repudiation: Korematsu

Korematsu v. United States follows another path. For decades, Korematsu, in which the court allowed for the internment of people of Japanese descent during World War II, stood less as a working rule than as a warning. Courts, scholars, and lawyers invoked it as an example of judicial failure during wartime. Its authority eroded through constitutional memory as much as through ordinary doctrinal development. By the time the Supreme Court addressed the case in Trump v. Hawaii, its practical legitimacy had already collapsed. In Chief Justice John Roberts’ words:

The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.”

The court’s statement had the language of overruling but the posture of repudiation. Korematsu was not supplying the operative rule in Trump v. Hawaii in the way Abood supplied the rule later rejected in Janus. The court instead used the occasion to declare that Korematsu had long since lost any legitimate place in constitutional law.

That makes Korematsu a category of its own. Some precedents fade because later decisions narrow their holdings. Others are displaced by new tests. Korematsu was condemned as a constitutional symbol. Its death was not mainly a product of doctrinal mechanics, but of historical judgment.

Live testing: Humphrey’s Executor and Employment Division v. Smith

The last category involves precedents that have not yet reached a final endpoint – but may soon.

Humphrey’s Executor v. United States, which could be formally overturned this term in Trump v. Slaughter, is the lower-volume example. It has 527 total citations in the data, 28 negative citations, and two Supreme Court negative citations, for a negative-treatment share of about 5.3%. Standing alone, those numbers would not place it among the most visibly eroded precedents in the group. The recent trend tells a different story, however. From 2022 through 2026, Humphrey’s Executor received 118 citations, about 22.4% of its total citation universe.

That concentration reflects renewed attention to presidential removal. For decades, Humphrey’s Executor stood for Congress’ ability to provide removal protection for members of certain independent agencies. More recent cases have recentered the analysis around Article II and presidential control. 2020’s Seila Law LLC v. CFPB, for example, did not overrule Humphrey’s Executor, but it narrowed the precedent’s orbit by describing removal protection as the exception rather than the rule:

But text, first principles, the First Congress’s decision in 1789, [and prior precedent] all establish that the President’s removal power is the rule, not the exception. While we do not revisit Humphrey’s Executor or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority.

The importance of that language lies in its supposed restraint. The court said it was not revisiting Humphrey’s Executor, but it also refused to let the case become a general permission slip for removal restrictions. That is how erosion can operate before overruling. A precedent remains in place, but later doctrine reduces its domain and signals that further extension is unlikely.

Employment Division v. Smith is different. It has a much larger citation universe and the highest negative-treatment share in this set. The data show 2,901 total citations, 388 negative citations, and 11 Supreme Court negative citations. Its negative-treatment share is 13.4%.

Smith also sits in a field where the court has repeatedly adjusted the surrounding doctrine. In that case, the court held that neutral and generally applicable laws ordinarily do not violate the free exercise clause merely because they burden religious exercise. The modern pressure on Smith comes through the meaning of “neutral” and “generally applicable.” If more laws affecting religious groups are characterized as underinclusive, discretionary, targeted, or non-neutral, fewer cases fall within Smith’s deferential rule. From Fulton v. Philadelphia, decided in 2021:

Not only is it difficult to square Smith’s interpretation with the terms of the Free Exercise Clause, the absence of any language referring to equal treatment is striking. If equal treatment was the objective, why didn’t Congress say that? And since it would have been simple to cast the Free Exercise Clause in equal-treatment terms, why would the state legislators who voted for ratification have read the Clause that way?

That makes Smith a live erosion case. The court can alter its practical reach without immediately overruling it. Each decision that narrows neutrality or general applicability leaves the formal rule standing while reducing the set of laws that can benefit from it. The current posture of free exercise litigation therefore resembles the pre-overruling stage in some respects, even though the court has not taken the full overruling question in the same direct way.

Five ways precedent loses force

Viewed together, the cases show several recurring paths of precedential decline.

To be clear: The categories are not necessarily rigid. A precedent may move from one to another. A case that begins as a confinement story may eventually be overruled. A precedent that appears merely weakened may become the subject of direct reconsideration once a new case presents the right vehicle. The categories instead help clarify what the data are showing.

Conclusion

Formal overruling remains the clearest sign that a precedent has died. But it is rarely the only relevant event. Often, by the time the court overrules a case, abandons a test, or declares a precedent illegitimate, the surrounding doctrine has been signaling the change for years.

The six precedents here capture different versions of that process. Abood was criticized and narrowed before it was overruled. Lemon was displaced before it was declared abandoned. Bivens survives, but with little appetite for extension. Korematsu was repudiated as a constitutional failure. Humphrey’s Executor and Smith remain live, but each is being tested through the logic of newer cases.

Citation data can make those patterns more visible. They show when a case remains active, when negative treatment accumulates, when the Supreme Court is participating in that erosion, and when a precedent suddenly receives renewed attention. For litigants and lower courts, it is key to understand whether the Supreme Court still treats the precedent as a rule to be applied, or as a problem to be managed.

Rarely in American history did so much constitutional law change so quickly. Indeed, over 50 years of conservative efforts to remake the Supreme Court came to fruition in five decisions handed down over those nine days. This was the conclusion of Justice Amy Coney Barrett’s first full term on the court and the decisions also powerfully demonstrated what it means to have six conservative justices.

Consider what happened during those nine momentous days.

Tuesday, June 21. Carson v. Makin. There are parts of Maine that are too rural to support public school systems. In these areas, school administrative units provide money for parents to send their children to private school. State law required that the funds be used for secular schools; they cannot be used for “sectarian” education. Maine said that its goal was to provide a free secular education for every child in the state, and that it did not want to use tax dollars to support religion. About 5,000 children were affected each year.

Two families brought a challenge arguing that prohibiting the use of funds in religious schools was contrary to the free exercise of religion. The court, 6-3, agreed, holding that it violated this provision for the government to provide funds for secular private schools, but not religious ones. The decision was based on two recent cases. In 2017’s Trinity Lutheran v. Comer, the court held that Missouri violated the free exercise of religion in providing aid for surfacing playgrounds to public schools and secular private schools, but not religious schools. And in 2020’s Espinoza v. Montana Department of Revenue, the court ruled that Montana violated the free exercise of religion in providing tax credits for contributions to secular schools, but not religious ones.

For decades, the issue before the Supreme Court was about what aid the government may provide to religious schools without it being an impermissible establishment of religion. In Carson, the court said that the free exercise clause means that the government must provide aid for religious schools whenever it subsidizes secular private education. Until these cases, never in American history had the Supreme Court interpreted the Constitution to require government aid to religious institutions.

Thursday, June 23. New York State Rifle and Pistol Association v. Bruen. From 1791 until 2008, the Supreme Court never once declared unconstitutional any law – federal, state, or local – as violating the Second Amendment. In the handful of cases about that amendment, the court said that it was just about a right to have guns for militia service.

In June 2008, in District of Columbia v. Heller, the court for the first time declared a gun regulation unconstitutional and struck down a 32-year-old District of Columbia ordinance that prohibited ownership or possession of handguns. But for 14 years after this, the court did not decide a major case about the meaning of the Second Amendment.

That changed with New York State Rifle and Pistol Association v. Bruen, which involved a New York law adopted in 1911 that prohibits having weapons in public without a permit. Under the law, if a person wanted a permit to carry a firearm outside the home or place of business for self-defense, the individual must show a safety need for it. In a 6-3 decision, the court declared this unconstitutional and for the first time said that there is a Second Amendment right to carry concealed weapons outside the home.

But the court went even further: in an unprecedented approach to any constitutional right, Justice Clarence Thomas, writing for the majority, said that gun regulations would be allowed only if they were historically permitted. Thomas declared: “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

For most other constitutional rights, the government can act if it has a compelling interest and no other way to achieve it. The government even can discriminate based on race if it meets this standard. But not for the Second Amendment, which Thomas described as an “unqualified command.” In fact, the court said that “the Second Amendment . . . surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”

Bruen led to hundreds of challenges to every type of gun regulation. Courts continue to struggle with how to apply it, including two cases now pending before the Supreme Court: Wolford v. Lopez and United States v. Hemani.

Friday, June 24. Dobbs v. Jackson Women’s Health Center. It was no surprise when the court handed down its decision in Dobbs overruling Roe v. Wade. On May 1, Politico published a leaked draft of Justice Samuel Alito’s majority opinion. The opinion released on June 24 was almost the same as the earlier version. The court declared: “We … hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

Unlike the other major cases from these nine days in June, Dobbs was not 6-3. Alito’s opinion overruling Roe was joined by Justices Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts concurred in the judgment. He would have upheld the Mississippi law prohibiting abortion after the 15th week of pregnancy but would not have reached the issue of whether to overrule Roe. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote a joint vehement dissent.

Dobbs has had enormous political ramifications. Many states have prohibited most or almost all abortions, while others have strengthened their protections of abortion rights. One thing that it has not done is end litigation with regard to abortion – there are a myriad of legal issues that are pending in the courts.

Monday, June 27. Kennedy v. Bremerton School District. Few decisions of the Warren court were more controversial than those in the early 1960s prohibiting prayer in public schools. Yet from 1962 until June 27, 2022, without exception, every Supreme Court decision about prayers in public schools had found them to be an impermissible establishment of religion. In Kennedy v. Bremerton School District, the Supreme Court not only allowed prayer at a public school event, but found that preventing it was an unconstitutional violation of a teacher’s freedom of speech and free exercise of religion.

Joseph Kennedy was the football coach at a public school in Bremerton, Washington. After games, Kennedy, a devout Christian, would kneel at the 50-yard line and engage in a prayer for about 30 seconds. Several games into his first season as coach, players began to join him and this grew to include a majority of the team. Sometimes opposing players were invited to join as well. A parent complained to the principal that his son “felt coerced to participate” in Kennedy’s religious activity, even though he was an atheist, because “he felt he wouldn’t get to play as much if he didn't participate.”

Over time, Kennedy began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy. He then raised a helmet from each team and delivered a message containing religious content including prayers. The school district ordered that Kennedy cease his religious activities. He initially complied and then openly defied the order and was suspended.

Kennedy sued and argued that the school district had violated his First Amendment rights to freedom of speech and free exercise of religion. The federal district court and the U.S. Court of Appeals for the 9th Circuit ruled against him, stressing the school district’s interest in complying with the ban on prayer in public schools. But the Supreme Court, in a 6-3 decision, ruled in Kennedy’s favor, concluding that denying him the ability to pray violated his freedom of speech and free exercise of religion.

For decades, the court had said that prayer in schools violates the provision of the First Amendment that forbids the establishment of religion. The court addressed this by saying that a 1971 decision, Lemon v. Kurtzman, which articulated the test for when the government violates the establishment clause, had been overruled. In a majority opinion by Gorsuch, the court articulated a new approach: “‘[T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”

For decades, the issue was when does prayer in public schools violate the establishment clause of the First Amendment and the answer was: always. Now the question is when does limiting prayer violate freedom of speech and free exercise of religion. We have gone from schools being forbidden from allowing prayer at their events to schools being required to permit it in certain circumstances.

Thursday, June 30. West Virginia v. Environmental Protection Agency. This case involved the authority of the EPA to regulate power plants to limit their greenhouse gas emissions. Coal-fired power plants are a major source of the pollution that is responsible for climate change.

The Obama administration adopted an aggressive approach, known as the Clean Power Plan, to limit these pollutants from coal-fired power plants across the country. The Trump administration rescinded the Clean Power Plan and adopted its own Affordable Clean Energy rule, which was far more permissive in allowing pollution from these electric utilities. The lower court ruled that the Trump administration acted improperly.

West Virginia and several coal companies sought Supreme Court review. The Biden administration urged the Supreme Court to not take the case and once taken to dismiss it. The EPA made clear that it did not intend to revive the Obama administration’s Clean Power Plan or to implement the Affordable Clean Energy rule.

The court nonetheless ruled, 6-3, that the EPA lacks the authority to regulate greenhouse gas emissions from coal fired power plants. Roberts said that this was a “major question” of economic and political significance, but that Congress had not been sufficiently specific in granting authority to the EPA to do this. This is the first recent case to expressly invoke what is known as the “major questions doctrine.” Kagan dissented, joined by Sotomayor and Breyer, and said that there was no basis for this doctrine and that the EPA had the authority to take this important action to address the urgent problem of climate change.

There continues to be a deal of litigation over what is a major question of economic and political significance and what is enough congressional direction to allow the agency action. This doctrine also played a key role in this term’s tariffs case.

***

There is no doubt that the last weeks of June and perhaps early days of July 2026 will bring several blockbuster decisions. But for dramatically changing the law in many areas, few nine-day periods can match 2022.

At the Court

On Monday, the court added three cases to its oral argument docket for next term and denied several notable petitions for review. For more on Monday’s order list, see the Morning Reads and On Site sections below.

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.

After any opinion announcements on Thursday, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from that conference are expected on Monday, June 22, at 9:30 a.m. EDT.

Morning Reads

Supreme Court won’t hear 98-year-old judge’s bid to end suspension

Zach Schonfeld, The Hill

On Monday, the Supreme Court announced that it will not “take up the oldest active federal judge’s bid to end her suspension, which her colleagues issued after she refused their demands for mental fitness testing,” according to The Hill. “Pauline Newman, who turns 99 on Saturday and rejects the notion she is unfit to serve, sued her fellow judges on the U.S. Court of Appeals for the Federal Circuit after they indefinitely prevented her from taking on new cases.” By rejecting her petition for review, the justices leave in place a ruling from the U.S. Court of Appeals for the District of Columbia Circuit holding that “federal district judges have no authority to hear lawsuits challenging judicial misconduct decisions.”

Supreme Court won't hear tariff challenge, paving way for new Trump action

Maureen Groppe, USA Today

Approximately four months after striking down tariffs imposed by President Donald Trump under the International Emergency Economic Powers Act, the court on Monday declined to get involved in a separate tariff battle dating back to 2018, when Trump invoked the 1974 Trade Act to impose tariffs on imports from China, according to USA Today. The act allows for such tariffs to be put in place after an investigation and hearings on “unfair trade practices,” but the challengers in HMTX Industries, LLC v. United States contended that it does not allow for these tariffs to be “dramatically ratchet[ed] up” amid a trade war with the targeted country. USA Today noted that the “justices’ decision not to review a ruling” upholding the tariffs on China “could embolden the administration as it seeks to replace many of the emergency tariffs” that were invalidated earlier this year.

U.S. Supreme Court rejects Texas death row inmate’s appeal challenging hypnosis testimony

Ellie Ashby, The Texas Tribune

The justices on Monday “rejected Texas death row inmate Charles Flores’ efforts to force the state’s highest criminal court to reconsider his appeal,” according to The Texas Tribune. “Flores argued that his 1999 conviction should be overturned under the Texas ‘junk science’ law because testimony from a key witness was improperly influenced by hypnosis performed by a police officer who was investigating” the murder Flores was ultimately convicted of committing. Flores asked the justices to order the Texas Court of Criminal Appeals to reconsider its holding that “he failed to meet the” junk science “law’s requirement that new evidence be previously unavailable, among other standards.”

Frustrated by Courts, Trump Weighed Suspending a Constitutional Right

Maggie Haberman and Jonathan Swan, The New York Times (paywalled)

Citing “a secret memo” written by the White House staff secretary, The New York Times reported on Monday that the Trump administration last year seriously considered suspending habeas rights for unauthorized immigrants as part of a broader deportation push. “The suspension of habeas corpus has occurred just a handful of times in U.S. history, and always under the most dire circumstances of war or invasion. Yet to a greater degree than previously known, administration officials, encouraged by Mr. Trump, actively weighed taking that step in the early months of his second term.” In his memo to the White House chief of staff, Will Scharf counseled against that move, noting that it would “likely precipitate hazardous legal and constitutional battles.” “Even where Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action,” Scharf wrote.

How a great historian influenced the Supreme Court

Jason Willick, The Washington Post (paywalled)

In a column for The Washington Post, Jason Willick highlighted the late historian Gordon S. Wood’s influence on the Supreme Court. “Wood is cited in at least 24 opinions in 22 high court cases to support arguments about the Constitution’s meaning. The citations are overwhelmingly to his first book, ‘The Creation of the American Republic, 1776-1787,’ published in 1969, when Wood was 35,” and come in cases about such issues as “the president’s power to appoint federal officers” and “the constitutionality of term limits for members of Congress.” Willick noted that the “rise of Wood in Supreme Court advocacy is inseparable from the rise of originalism. ... When the Constitution’s original meaning began to matter more in the law, the authority on early American political thought understandably attracted judicial attention from liberals and conservatives alike.” Wood died on June 7 at age “92 after he was hit by a car in Rhode Island.”

On Site

Court News

Court agrees to hear three new cases, including on the constitutionality of six-person juries

The court on Monday added three new cases, on issues ranging from hearings for noncitizens in immigration detention to the constitutionality of Florida’s six-person juries and the exceptions to the general rule on second petitions for federal post-conviction relief. The announcement came as part of a list of orders from the justices’ June 11 conference, which also included two dissents by Justice Samuel Alito from the denial of review in cases involving student speech and the constitutionality of a prosecutor’s comments in a capital murder trial.

Court News

Justices urged to stop Texas from enforcing age-verification and parental-consent law on apps

A student group and a trade association have asked the court on its interim docket to restore orders by a federal judge in Austin, Texas, that bar the state from enforcing a law that imposes age-verification and parental-consent requirements on minors’ access to apps and paid content within those apps. Half the states have similar age-verification requirements for minors.

Contributor Corner

The dissent that became a statute

In her In Dissent column, Anastasia Boden highlighted Justice Ruth Bader Ginsburg’s dissent in Ledbetter v. Goodyear Tire & Rubber Co., a 2007 case in which the court held that Lilly Ledbetter’s sex discrimination claims over being paid less than men working the same job were foreclosed because they were filed too late. In her dissent, Ginsburg noted that “the ball is in Congress’ court” when it came to addressing the issues raised in the case. Congress did indeed act two years later, passing the Lilly Ledbetter Fair Pay Act.

A Closer Look

The Box Count

As we enter the heart of opinion season, we thought it would be helpful to revisit past Closer Looks on how SCOTUSblog covers opinion announcements. This piece was originally published on March 31.

If you regularly attend our opinion day live blogs, you’ve likely noticed that certain questions come up nearly every time. For example, do we know in advance which opinions are coming? (No.) Is live audio available from the courtroom during opinion announcements? (Also no.) And how many boxes are there? (It varies.)

The box question typically sparks a series of additional questions from blog newcomers and veterans alike. What are these boxes you’re speaking of? Why do they matter? And, more recently, do the boxes seem heavy or light?

Let us take those questions in order. First off, the boxes are literal boxes. They are made of light blue carboard and look something like this. The boxes are used by the Supreme Court’s Public Information Office to bring copies of soon-to-be-released opinions to members of the press. A member of the PIO team lifts them onto desks in the PIO’s outer office at 9:55 a.m. EDT, when the five-minute buzzer sounds. That means that, although reporters do not see the actual opinions before they are announced by the court shortly after 10:00 a.m. EDT, they do see the box(es) before then (which Amy reports on the live blog), prompting the box count discussion.

As to the second question, the box count is significant because it gives us a sense of how many opinions might be coming. If there is just one box, the court is unlikely to be releasing more than three short opinions – and, indeed, is likely only releasing one or two opinions – because copies of three long opinions wouldn’t fit in a single box. It follows that when there are two boxes, we can safely predict that at least three opinions are on the way.

In recent live blogs, we’ve also talked – it may be more accurate to say joked – about how heavy or “puffy” the day’s box seems to be. Amy describes whether it seemed to take more effort than usual for the box to be carried in. Much like the box count seeks to estimate how many opinions may be released, this metric is aimed at making a more educated guess about how many opinions a box contains.

Admittedly, tracking the box count (and box weight) only gets you so far on opinion days. Sure, learning that there are two or three boxes instead of one makes it clear that it will be a busy morning, but knowing the box count on Friday, Feb. 20 (one) didn’t mean we knew for sure that the tariffs decision was coming. The reporters at the court got that answer when Chief Justice John Roberts began announcing the tariffs ruling in the courtroom, which prompted staffers in the Public Information Office to hand out copies of the opinion to those gathered around the box.

Still, this tracking can bring a sense of control to chaotic opinion days, and, perhaps most importantly, it’s a fun aspect of one very serious institution.

SCOTUS Quote

JUSTICE SOTOMAYOR: “Counsel, is – this group or gang, all of them had gold teeth and faded hair cuts?”

MR. SHANMUGAM: “There were five other suspects who had gold teeth or – and low-cut haircuts. Three of the other individuals who were primarily in the frame for this murder had those characteristics …”

JUSTICE SOTOMAYOR: “In short, faded hair cuts and gold teeth were not a unique characteristic.”

MR. SHANMUGAM: “They were not uncommon in the 1990s.”

JUSTICE SCALIA: “… They're uncommon to me.”

(Laughter.)

JUSTICE SCALIA: “These were not gold teeth that were implanted, right? They – what was it? Some kind of a mouthpiece of gold?”

MR. SHANMUGAM: “I have to admit that my familiarity with this practice is perhaps not that much greater than yours …”

JUSTICE SCALIA: “I'm sorry to hear that.”

— Smith v. Cain (2011)

The law at the center of the case is the Texas App Store Accountability Act, also known as SB 2420. 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, went to federal court to challenge the law, which was scheduled to take effect on Jan. 1, 2026, as a violation of their First Amendment rights. The Computer and Communications Industry Association, a trade group that represents (among others) app stores and app developers, did the same.

In December 2025, U.S. District Judge Robert Pitman temporarily blocked the state from enforcing SB 2420. But on June 4, the U.S. Court of Appeals for the 5th Circuit put Pitman’s orders on hold, prompting the challengers to come to the Supreme Court.

The students argued in the Supreme Court 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.”

The CCIA contended that the 5th Circuit’s decision “has upset the status quo by allowing the Act to be enforced for the first time, exposing app stores and millions of app developers to potential liability” and subjecting them to “enormous and unrecoverable compliance costs.” And in any event, it continued, the app stores that the CCIA’s members operate already “provide various, voluntary tools that enable parents to control their children’s exposure to apps and content.”

Justice Samuel Alito, who handles emergency applications from the 5th Circuit, instructed Texas to respond to the challengers’ filings by 4 p.m. EDT on Monday, June 22.

The Supreme Court on Monday added three new cases, on issues ranging from hearings for noncitizens in immigration detention to the constitutionality of Florida’s six-person juries and the exceptions to the general rule on second petitions for federal post-conviction relief. The announcement came as part of a list of orders from the justices’ June 11 conference, which also included two dissents by Justice Samuel Alito from the denial of review in cases involving student speech and the constitutionality of a prosecutor’s comments in a capital murder trial.

In Genalo v. Black, the court will weigh in on the case of Keisy G.M., a green card holder from the Dominican Republic who was taken into custody in October 2020 by immigration officials after he was convicted of assault and remained there for 21 months while the federal government sought to deport him. G.M. was eventually released under an order issued by another court, but his challenge to his detention continued. In 2024, the U.S. Court of Appeals for the 2nd Circuit ruled that when a noncitizen’s detention has been “unreasonably prolonged,” the government must hold a bond hearing to determine whether a noncitizen is either a flight risk or a danger to the community, and the government must justify the continued detention by “clear and convincing evidence.”

The Trump administration appealed to the Supreme Court in January. It noted that in 2018, in Jennings v. Rodriguez, the Supreme Court had rejected an argument that noncitizens held in detention while the government sought to deport them were entitled under federal law to periodic hearings to consider whether to release them on bail. But in that case, it did not resolve the two questions that the government was now asking it to decide: whether there is in fact a point at which a noncitizen’s detention becomes “unreasonably prolonged,” so that he has a constitutional right to a hearing; and whether, at such a hearing, a “clear and convincing evidence” standard applies.

The court agreed to take up the case on Monday, although it directed the litigants to brief an additional question (raised by G.M.’s lawyers in opposing review) – whether the case is moot (that is, no longer a live controversy) because G.M. was released from custody in 2022 and the government has told a lower court that he “remains free and at this point there is … nothing else for the Court to do.”

The justices also agreed to take up the case of Hamed Kian, who was convicted by a six-person jury of five counts of practicing chiropractic medicine with a suspended license. He was sentenced to one year and one day in prison on three of the counts and five years on probation for the remaining two counts.

Kian argued unsuccessfully in a state appeals court that under the Sixth Amendment he was entitled to a 12-person jury. He came to the Supreme Court in January, asking the justices to weigh in. He conceded that in 1970, in Williams v. Florida, the court ruled that the use of a six-person jury does not violate the Constitution. But Kian urged the court to overrule that decision. Williams, he said, acknowledged that the Constitution’s drafters may have expected a jury to have 12 members, but it believed that a six-person jury could be equally effective in carrying out the jury’s function – that is, allowing a group of ordinary citizens to determine a defendant’s guilt or innocence.

Kian argued that the current Supreme Court has discarded the reasoning on which the decision in Williams rested. In 2020, in Ramos v. Louisiana, he said, the court ruled that the Sixth Amendment requires a unanimous verdict, pointing to the meaning of the right to trial by jury when the amendment was adopted. “Ramos,” Kian wrote in his petition for review, “rejected the same kind of ‘cost-benefit analysis’ undertaken in Williams, observing that it is not for the court to ‘distinguish between the historic features of common law jury trials that (we think) serve “important enough functions to migrate silently into the Sixth Amendment and those that don’t.”’”

And in Guerrero v. Johnson, the court granted Texas’ request to decide a technical question in a death-row inmate’s effort to obtain federal post-conviction relief – specifically, whether his claim that he is intellectually disabled and therefore cannot be executed falls within one of the narrow exceptions in which a state prisoner can file a second petition for federal post-conviction relief when, the state argued, he could have raised the claim in an earlier petition. The U.S. Court of Appeals for the 5th Circuit allowed Dexter Johnson’s claim to go forward, agreeing with Johnson that he could not have made the claim earlier because the standards to evaluate intellectual disability claims had recently been revised.

Over Alito’s dissent, the court in Alabama v. Powell let stand a ruling by the Alabama Court of Criminal Appeals – the state’s highest court for criminal cases – that threw out the conviction and death sentence of Michael Powell. The state court interpreted a statement by a prosecutor at Powell’s trial as a “direct comment” on Powell’s failure to testify, which would violate both the bar in the U.S. and Alabama Constitutions on compelling a criminal defendant to testify against himself.

In a four-page opinion joined by Justice Clarence Thomas, Alito emphasized that the trial court had “interpreted the prosecutor’s statement as a reference to” a “false confession letter,” rather than a comment on Powell’s failure to testify. In Alito’s view, the state court’s ruling conflicted with United States v. Robinson, a 1988 decision in which the Supreme Court “found no violation of the Fifth Amendment right against compulsory self-incrimination in a case with very similar facts.” Therefore, Alito said, he would have reversed the state court’s ruling without additional briefing or oral argument.

Alito also penned a dissent (this time, a solo one) from the court’s denial of review in E.D. v. Noblesville School District, a challenge by an Indiana teenager to her school’s denial of her request to post flyers for “the student-run Noblesville Students for Life” club that contained pictures of students with “Defund Planned Parenthood” signs. The student, known as E.D. in court filings, contended that the denial (as well as a suspension of the club that followed) violated the First Amendment, but the lower courts rejected that argument, and on Monday the court refused to hear E.D.’s appeal.

In a three-page opinion, Alito observed that a “pivotal” question in the case was whether courts should apply the stringent standard outlined in the court’s 1969 decision in Tinker v. Des Moines Independent Community School District, in which the court held that the suspension of students for wearing black armbands to protest the Vietnam War violated the First Amendment, or instead the lower bar for “school-sponsored” speech and activities established in the 1988 case of Hazelwood School District v. Kuhlmeier. Since the Supreme Court’s ruling in Hazelwood, Alito continued, “lower courts have struggled to ascertain its precise limits, and in my view, clarification by this Court is in order.” In particular, Alito said, he would have granted E.D.’s petition for review to “clarify the relationship between Hazelwood” and the Supreme Court’s cases on government speech.

Additionally, the justices turned down an appeal from Charles Flores, who was convicted and sentenced to death in Texas in 1999. The prosecution’s case relied heavily on a witness who had initially been unable to identify Flores from a photo line-up, but then did so after she was put under “investigative hypnosis.” The use of such trial testimony was explicitly prohibited by Texas in 2023.

Flores sought to prove his innocence in state court, but the Texas courts turned down his request for post-conviction relief. He came to the Supreme Court in February, where he argued that there is “a disturbing pattern demonstrating that the” Texas Court of Criminal Appeals – the state’s highest court for criminal cases – “is violating death-sentenced prisoners’ due process rights by denying them any meaningful opportunity to prove innocence as state law allows.”

Among the “friend of the court” briefs supporting Flores’ petition for review was one from magicians Penn and Teller, who called investigative hypnosis “dangerous junk science” that “relies on the unscientific, erroneous assertion that a person’s brain makes a visual record of everything that has passed in front of that person’s eyes.”

The court on Monday also denied several notable petitions for review, including:

• Page v. Comey, a lawsuit by former Trump adviser Carter Page against former FBI Director Jim Comey and others contending that applications for warrants to surveil him under the Foreign Intelligence Surveillance Act were based on false and misleading information and that information from those warrants were leaked to the press. The lower courts dismissed his claims on the ground that they were filed too late, so the question that Page asked the court to take up relates to when the clock starts to run on a such claim. Justice Ketanji Brown Jackson did not participate in the decision to deny review; the case was originally assigned to her while she was still serving as a federal district judge in Washington, D.C.
• Newman v. Moore, a lawsuit by Pauline Newman, a 98-year-old judge on the U.S. Court of Appeals for the Federal Circuit challenging her suspension.
• National Shooting Sports Foundation v. James, a challenge to a New York law seeking to hold gun makers and sellers responsible for their role in gun violence. The challengers contend that the law is superseded by federal law.
• HTMX Industries v. United States, a challenge by businesses that import Chinese products to the U.S. Trade Representative's power to expand existing tariffs imposed under Section 301 of the Trade Act of 1974, which gives the USTR authority to address another country's unfair trade practices. The businesses told the justices that by allowing the tariffs to stand, the U.S. Court of Appeals for the “Federal Circuit provided a roadmap for how any administration can bypass the carefully crafted procedures laid out by Congress to wage a limitless trade war.” In particular, the businesses argued, in the wake of the court's decision in February in Learning Resources v. Trump holding that the International Emergency Economic Powers Act does not give the president the power to impose sweeping tariffs, the Trump administration suggested that it would use Section 301 to impose tariffs in place of the IEEPA tariffs (which it has begun to put forward). According to the businesses, the Federal Circuit's ruling allows the Trump administration to expand those tariffs without complying with the “procedural safeguards” normally required by Section 301.

The justices will meet again for another private conference on Thursday, June 18. Orders from that conference are expected on Monday, June 22, at 9:30 a.m. EDT.

Most dissents share the same fate. They are born of sharp disagreement, they are issued without fanfare, and then they sit waiting for a new majority to take the bench. Some wait decades and some wait forever. Ginsburg’s dissent in 2007’s Ledbetter v. Goodyear Tire & Rubber Co., however, did something almost without precedent. It inspired Congress to act without hardly having to wait at all.

The woman behind the case

Lilly Ledbetter had gone to work after she and her decorated veteran husband were struggling to support their two children. Eventually, she wound up at a Goodyear Tire & Rubber Company plant in Gadsden, Alabama. She was a supervisor – one of the few women in management at the facility. And despite uneven raises, she received a “Top Performance Award” in 1996. What she didn’t know was that her male counterparts were being paid substantially more, even those with far less seniority. By the end, the male supervisors were being paid between $4,286 at the lowest and $5,236 at the highest per month; Ledbetter was earning only $3,727.

Goodyear had a policy prohibiting employees from discussing their pay, so Ledbetter only learned of the disparity after an anonymous note was slipped into her locker. After she brought a pay discrimination charge with the Equal Employment Opportunity Commission, Goodyear moved her to a position lifting heavy tires, which she understood as retaliation. She retired shortly after. Because her retirement benefits were calculated based on her discriminatory pay, as Ledbetter put it, it meant she would be a “second-class citizen for the rest of [her] life.”

She sued under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex. A jury found in Ledbetter’s favor and awarded her around $3.5 million in back pay and damages (eventually reduced to $360,000 based on statutory caps).

Goodyear appealed on the grounds that Title VII requires a plaintiff to file a charge of discrimination within 180 or 300 days of the unlawful employment practice, depending on the state. Ledbetter argued that every time she received the discriminatory pay, that clock reset, even if the initial discriminatory act of setting that pay had been outside of the 180 days. According to Ledbetter, the paychecks themselves were unlawful because they were a continuing effect of the initial discrimination. An appellate court disagreed, ruling that she could only sue over actual pay decisions that occurred less than 180 days before she filed her initial EEOC complaint. In the court’s view, she could not sue over pay decisions that happened prior to that, even if they affected her pay within that timeframe.

Ledbetter appealed to the Supreme Court.

A notorious dissent

Writing for a five-justice majority, Justice Samuel Alito ruled that Ledbetter’s arguments were squarely foreclosed by precedent: the clock started running when the discriminatory act occurs. Because the discriminatory act in her case was a pay-setting decision, and no other intentional discrimination occurred after that, the countdown began when that pay decision was first made – not when Ledbetter received each subsequent paycheck reflecting that decision. After going through the case law, Alito wrote that earlier cases spoke “to the point … directly.” The fact that such cases were in some ways different because they involved denials of promotions or hiring decisions was immaterial. In sum, if the employer made a discriminatory salary decision in 1992, that is when the violation happened – even if its effects echoed through paychecks for the next 15 years.

Ginsburg disagreed, and it’s hard to imagine her decision wasn’t informed by her own experience with sex-based discrimination. After graduating tied first in her class at Columbia Law School, Ginsburg had trouble finding a job until a professor threatened to withhold clerkship recommendations unless a district court judge at least agreed to interview her. She was later offered jobs at several law firms, but always at a lower salary than the men. She would go on to co-found the Women’s Rights Project at the American Civil Liberties Union, where she successfully argued several cases advocating for equality under the law before the Supreme Court.

In her first oral argument at the high court, Ginsburg famously quoted the abolitionist Sarah Grimké, saying, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” Ginsburg believed that the point of equal protection was not that women were the same as men, or that they deserved a leg up, but instead that the government should treat people as individuals – making them “free to be you and me.”

After being appointed to the D.C. Court of Appeals, where she established a life-long friendship with then-judge Antonin Scalia, Ginsburg was elevated to the Supreme Court by President Bill Clinton as the second female justice. She would go on to author several iconic decisions, including 1996’s United States v. Virginia, which required the Virginia Military Institute to admit women (and in which Scalia alone dissented). But she also became an icon of dissent. While famous for her lace jabots and collars, she reserved a special collar for reading dissents from the bench in moments she considered genuine institutional failure. Her opinion in Bush v. Gore further cemented her as a colorful figure of dissent when she dropped the word “respectfully” in her sign off, which the justices traditionally used, instead saying only “I dissent.”

In Ledbetter, Ginsburg made a simple, human point about the realities of discrimination in the workplace – and pay discrimination in particular. In contrast to denials of a promotion, or firings, which are open events that invite explanation, pay discrimination is often invisible. It can accrue slowly over time. A woman may still be given a raise, but a smaller raise than her male counterparts. Salaries are confidential. And women like Ledbetter might be inclined to give their employer the benefit of the doubt, especially if they are pressured against “making waves.” Thus, a woman who is underpaid may have no reason to suspect it and no way to verify it until years later, when a note appears in her mailbox – or a colleague retires and mentions his pension. The majority, she said, “does not comprehend, or is indifferent to,” this “insidious way in which women can be victims of pay discrimination."

She also pointed to precedent suggesting that Title VII encompasses not just initial discrimination, but cumulative acts (like hostile work environment claims), and argued that while the majority had said that its decision was needed to protect employers from intentional discrimination long past, in her view, the discrimination occurred each time a person was paid differently based on sex. And while this would undoubtedly expose employers to more liability, there were plenty of bars preventing employees from successfully suing who actually knew about discrimination at the time but chose to pursue it only later.

In Ginsburg’s view, there was plenty of evidence that Ledbetter’s pay was a result of intentional discrimination: at one point, her pay fell below the minimum threshold for that position; the jury heard evidence that one of the men who evaluated her was openly biased against women; other women testified they had been paid less than the men they supervised; and the plant manager had made comments that the plant “did not need women, that [women] didn’t help it, [and] caused problems.” The majority’s rule, she said, effectively immunized exactly the kind of discrimination the Civil Rights Act was meant to cover. Congress had enacted Title VII to remedy workplace discrimination, she said, not to provide a technical escape hatch for employers who were good at keeping secrets, and the court should read the statute accordingly.

Ginsburg closed by speaking not to her colleagues, but to Congress, stating that “the ball is in Congress’ court.” In what became both an invitation and a prediction, she wrote, “The Legislature may act to correct this Court’s parsimonious reading of Title VII.”

An unusual ending

Ledbetter did not give up. Rather, she turned to Congress, meeting with leaders and speaking about her experience. According to her son Phillip, “This started out personal for her, but now she is standing up for other women including my sister Vickie and my 2-year-old daughter Grace.”

Just two years later, in 2009, Congress passed the Lilly Ledbetter Fair Pay Act of 2009 – the first piece of legislation signed by President Barack Obama. At the ceremony, the president said that by signing the act, “we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.” The law amended Title VII to provide that the limitations period resets with each discriminatory paycheck –precisely the rule Ginsburg had argued the statute should have required all along. The woman who had been denied her jury verdict now had a law named after her, and RBG kept a framed copy of the act in her chambers. It was nevertheless a symbolic win for Lily: she never recovered the money she had lost as a result of discriminatory pay.

When packing to go to the signing ceremony, Ledbetter said, “I’m just thrilled that this has finally passed and sends a message to the Supreme Court: You got it wrong.” But perhaps the bigger takeaway is a lesson about what dissents, at their best, are actually for. When the majority reaches a conclusion that other justices believe to be practically intolerable, they can make an argument about what the law ought to be. And it’s not merely catharsis, but a roadmap for actual change.