The asylum case is the latest addition to the court’s burgeoning immigration docket, which already includes a challenge to the Trump administration’s practice of deporting immigrants to countries that are not identified in their removal orders (a policy known as “third-party removals”) and its policy of detaining immigrants who are apprehended within the United States without the opportunity for a hearing.

Mullin v. Refugee and Immigrant Center for Education and Legal Services has its roots in a Jan. 20, 2025, proclamation by President Donald Trump declaring that “an invasion is ongoing at the southern border” and suspending (that is, temporarily blocking) the entry of noncitizens “engaged in the invasion.” Trump also indicated that such noncitizens could no longer seek protections, such as asylum, that would allow them to remain in the country.

The Department of Homeland Security issued guidance that (among other things) barred any noncitizens from applying for asylum. The guidance also indicated that anyone who entered the country despite Trump’s suspension of entry would be quickly removed without some of the procedural protections provided by law.

The challengers in the case are a group of 13 individuals who say that they have been persecuted or tortured in their home countries, as well as three immigration-related nonprofits. They sought to file a class-action lawsuit in federal court in Washington, arguing that both the proclamation and the guidance violate federal immigration law.

U.S. District Judge Randolph Moss recognized a class of challengers, made up of immigrants who are or would be subject to Trump’s proclamation. He concluded that the DHS guidance was unlawful and threw it out, and he barred DHS officials from implementing those actions under the proclamation.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit initially paused part of Moss’ order, but a different panel later largely upheld it on the merits. Judge J. Michelle Childs, joined by Judge Cornelia Pillard, wrote that the “text, structure, and history” of federal immigration law “make clear that in supplying power to suspend entry by Presidential proclamation, Congress did not intend to grant the Executive the expansive removal authority it asserts. The Proclamation and Guidance are thus unlawful to the extent that they circumvent … removal procedures and cast aside federal laws affording individuals the right to apply and be considered for asylum or withholding of removal protections,” a more limited form of protection from deportation.

Judge Justin Walker dissented in part. Although he contended that Trump has the discretion to deny all asylum applications and therefore can dispense with the application process altogether on the ground that he would deny the applications, he agreed with the majority that the government “cannot remove aliens to countries where they will be persecuted, and the Proclamation and Guidance cannot strip them of mandatory procedures that protect against that removal.”

The D.C. Circuit agreed to keep its ruling on hold while the government appeals, allowing the government to maintain the asylum restrictions.

Contending that the U.S.-Mexico border “had become overwhelmed by an ungovernable influx of millions of aliens, creating chaotic conditions that criminal and terrorist organizations exploited to threaten our national security,” the Trump administration came to the Supreme Court in August, asking the justices to weigh in. U.S. Solicitor General D. John Sauer told the justices that “suspending the illegal entry of aliens and precluding their access to asylum” is “[t]he most important and effective pieces of the President’s response.”

Trump’s proclamation, Sauer continued, “rests on a commonsense understanding of the President’s inherent and delegated powers to exclude aliens.” Therefore, he said, Trump “acted well within his authority in preemptively indicating that asylum applications filed by aliens who violate the proclamation’s entry suspension would be denied—and in effectuating that discretionary policy choice by directing that the government need not accept futile asylum applications from those aliens.”

Sauer also told the court that the lower courts did not have the power to apply their order to a whole class of challengers. Federal immigration law, he argued, expressly bars lower courts from issuing orders that require federal officials to enforce or implement specified provisions of federal immigration law –including those “allowing aliens to assert an asylum claim … and obtain a hearing before being subject to expedited removal.”

And in any event, Sauer continued, the class of challengers also violates the rules governing class actions because it “sweeps in aliens who are currently overseas and have no imminent plans to enter the United States (much less enter illegally).” Those noncitizens, he wrote, have not been injured and therefore cannot be part of the class; they “will become future class members here only if they choose to illegally enter the county.”

The challengers urged the justices to deny review, telling them that the D.C. Circuit’s ruling “correctly held that the President may not invent by fiat a new removal system that eviscerates the protections Congress mandated by statute.” They also pushed back against the administration’s suggestion that the proclamation and guidance were intended to address an “unprecedented crisis,” countering that “the facts say otherwise. By January 2025, before the Proclamation took effect, border apprehensions had returned to historically routine levels, down over 90 percent from their peak. If the Executive Branch nonetheless believes it needs new tools to manage the border, Congress must provide them.”

The statute on which Trump relies for the proclamation, the challengers continued, “does not speak to the removal of noncitizens who are already here. Nor does it authorize the Executive Branch to abrogate Congress’s protections against removing noncitizens to persecution or torture.” Instead, they wrote, federal immigration law “provides that noncitizens ‘may apply’ for asylum, ‘irrespective of … status’” or where and how they entered the United States. In conflict with “statutory command,” the challengers contended, “the Proclamation and Guidance dictate that statutorily eligible noncitizens may not apply for or receive asylum.”

The challengers also rejected the administration’s suggestion that the lower courts could not have broadly barred the Trump administration from implementing the proclamation and guidance. The law stripping the lower courts of the power “to enjoin or restrain the operation of” some federal immigration laws does not apply here, they said, because Trump’s proclamation relies on other laws that are not implicated by that bar.

The court agreed to consider the legality of Trump’s proclamation and the guidance, as well as Moss’ power to enter an order providing broad relief, but it turned down the government’s request to weigh in on whether the class violates the rules governing class actions.

The court also agreed to hear Robinhood Markets v. Sodha on Friday, involving whether a California-based financial-services company violated federal securities laws when it failed to disclose some interim financial data as part of its initial public offering in July 2021, although that data was not scheduled to be reported until August of that year. In a lawsuit brought by investors, the U.S. Court of Appeals for the 9th Circuit ruled against the company, prompting it to come to the Supreme Court in February.

The company asked the justices to decide two questions, involving the effect of the company’s failure to disclose interim financial data that investors may consider significant to their decisions on compliance with federal securities laws and regulations.

The investors asked the justices to stay out of the case, telling them that “[t]here is nothing radical … about the decision below,” much less anything worthy of the Supreme Court’s intervention. Although the company “disagree[s] with the outcome,” the investors said, it “do[es] not propose that this Court adopt legal rules in place of the existing standards.”

In a brief filed last month at the court’s request, the Trump administration agreed with Robinhood that the court should weigh in on the first question presented by the company’s petition for review. Sauer told the justices that the 9th Circuit’s ruling “threatens significant untoward consequences.”

The court on Friday agreed to decide one of the questions posed by Robinhood Markets’ petition: “[w]hether an issuer can be found liable under the misleading-omissions prong” of the law at the center of the dispute “based on a determination that the issuer failed to disclose interim financial information that is material within the meaning of” that provision, “without an additional inquiry to determine whether the omission rendered any affirmative statement misleading.”

The justices will likely hear oral arguments in these cases sometime next spring.

Just over a month later, the oral argument docket still remains relatively short on blockbuster cases. Perhaps of even greater note, though, is that it’s short on cases in general, as the court is running behind its typical pace for grants.

Before the court is a petition to review the U.S. Court of Appeals for the 8th Circuit’s decision in Chase v. Andeavor Logistics LP (now captioned Aubol v. Andeavor Logistics LP), a trespass action by tribal citizen allotment owners against a pipeline company. Allotments are land parcels carved out of Indian reservations in the late 19th and early 20th centuries. The federal right-of-way allowing a pipeline in these Indigenous lands expired in 2013. The Mandan, Hidatsa, and Arikara Nation has agreed to extend the right-of-way for its lands, but individual tribal citizens have not consented to the extension on their lands.

Though the pipeline company is seemingly liable for trespass, the circuit court remanded the issue to the Bureau of Indian Affairs to address the issue in the first instance, pointing to federal regulations that govern the expiration of Indian country rights-of-way. The cert petition argues that the 8th Circuit’s decision conflicts with the Supreme Court’s decision in Oneida County v. Oneida Indian Nation, which held that there is a federal common law cause of action allowing Indigenous property owners to bring trespass actions in federal court.

The Andeavor case has been accompanied in recent years by a slate of lower court decisions similarly diminishing Indigenous property rights. In Davilla v. Enable Midstream Partners, the U.S. Court of Appeals for the 10th Circuit held that a pipeline trespasser on Indigenous property would not be ordered to remove the pipeline until the federal district court decided it was, among other things, in the “public interest” to do so. Under federal law, federal courts may not order injunctive relief unless such relief is in the public interest. The 10th Circuit’s decision imposed a public interest standard on Indigenous property when, arguably, it would not have done so in relation to private property.

Similarly, a judge on the U.S. District Court for the Western District of Wisconsin held in Bad River Band of Lake Superior Ojibwe Indians v. Enbridge Inc. that the tribe was not entitled to the immediate removal of a trespassing pipeline because the public interest favored its continued operation. Fortunately, the U.S. Court of Appeals for the 7th Circuit reversed that decision. Other federal courts have also ordered immediate eviction of trespassers to Indigenous lands (e.g., United States v. Osage Wind), but the judiciary tends to invoke the public interest when favoring pipeline or other petroleum industry companies.

Newland argues that some judges may be channeling a long tradition where the federal government assumed that Indigenous property is public property: Most pipelines running through Indigenous lands now originated in an earlier era where the federal government assumed a kind of guardianship over tribal nations, where the Interior Department granted easements and rights-of-way over Indigenous lands without tribal consent. For example, the Supreme Court once held that the secretary of the Interior was empowered to issue leases to natural resources extraction companies even over tribal opposition (Cherokee Nation v. Hitchcock).

The tradition of guardianship arose in early Supreme Court decisions comparing the federal-tribal relationship to a “guardian-ward” relationship (Cherokee Nation v. Georgia). Congress did not enact laws generally asserting actual guardianship over tribal nations; instead, the relationship was more accurately characterized as a trust relationship, with federal government owning and managing tribal and individual Indian asserts in trust.

A trust beneficiary has legal rights that a ward does not. A ward does not possess the legal capacity to make their own decisions, while tribal nations and tribal citizens do. When federal or state actors did assert guardianship over Indigenous assets, tragedy often followed, as evidenced in the early 20th century killings of Osage people fictionalized in the film “Killers of the Flower Moon” or in the flooding of several Indian reservations in the mid-20th century by federal hydroelectric dam projects.

Often, when tribal nations attempted to assert their own legal rights, the judiciary allowed the federal government to block those efforts. Justice Neil Gorsuch recently raised this issue in his dissent in Arizona v. Navajo Nation, where he pointed out that, decades ago, the federal government blocked the Navajo Nation from asserting their water rights, which remain unsettled to this day. In those older cases, the fact that the federal government could stand in the shoes of Indigenous interests suggested that Indigenous property was therefore, in effect, public property.

The Department of Justice’s litigation positions also frequently hearken back to expansive federal controls over Indigenous property. While the Supreme Court has explicitly overturned the earlier cases analogizing the federal-tribal relationship as a guardianship in cases such as United States v. Sioux Nation, DOJ attorneys are known to continue to assert guardianship-type control over Indigenous property. Indeed, federal judges have sanctioned them for making such claims post-Sioux Nation.

This legacy of guardianship once again has raised its head. D.C. Circuit briefing has concluded in a claim brought by the Tohono O’Odham Nation against the Department of Homeland Security regarding the administration’s plan to build a border wall on the tribe’s land. The tribe argues that the federal common law cause of action recognized in Oneida undergirds the suit. In response, the DOJ now asserts that tribal nations may not sue the United States for trespass on hands held in trust by the federal government for the benefit of a tribal nation. This claim rings again of guardianship, where a ward normally does not have the legal capacity to sue their guardian.

The import of the government’s claim in the border wall case, like the trespass action in Andeavor, has enormous consequences for Indian country: If the government can confiscate Indigenous property held in trust by the United States, then the judiciary will have allowed the federal government to reassume a guardianship-type relationship regardless of tribal consent or the federal government’s trust duties.

At the Court This Week

Today, 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. EST.

On Thursday, the Supreme Court denied a request for a stay of execution from James Pavatt, who was sentenced to death for the 2001 murder of Rob Andrew. Just over an hour later, Pavatt was executed in Oklahoma.

On Tuesday, the justices heard oral argument in Department of Labor v. Sun Valley Orchards, LLC, on whether the Constitution allows the executive branch – as opposed to the courts – to adjudicate an employer’s obligation to comply with employment agreements concerning temporary immigrant workers. Here are the links to our Case Preview and Argument Analysis.

On Monday, the justices heard argument in Nielsen v. Watanabe, on whether and when federal officials can be held liable for constitutional violations. Here are the links to our Case Preview and Argument Analysis.

Also on Monday, the justices heard argument in Hoffmann v. WBI Energy Transmission, Inc., on whether the “just compensation” paid to land owners losing property to a pipeline project should be determined by referring to state law, which often provides for a higher payment than what the Constitution requires. Here are the links to our Case Preview and Argument Analysis.

Later on Monday, the Supreme Court granted the Trump administration’s request to be allowed to resume construction of its border wall in the Big Bend region of southwestern Texas. Only Justice Ketanji Brown Jackson indicated, without explanation, that she would have denied the government’s request.

In Monday’s order list, the Supreme Court denied review in over 200 cases, including disputes involving the George Floyd protests in Minneapolis, actor Randy Quaid, and the sons of former baseball player Roberto Clemente. It also asked the United States solicitor general to share the government’s views on a case over whether U.S. terrorism victims may sue 21 pharmaceutical and medical-device companies under the Antiterrorism Act for allegedly aiding and abetting Iraqi terrorists.

In early October, a high school wrestler in Washington state and her mother came to the Supreme Court’s interim docket and asked the justices to prevent transgender girls from competing against her during this year’s wrestling season. The application has been fully briefed since Oct. 15, but the Supreme Court has not yet taken action. In a Monday letter, the Washington Interscholastic Activities Association asked the court not to intervene, highlighting the passage last week of a ballot initiative in Washington that aims to prevent “biologically male students from competing with and against female students in athletic activities that have separate classifications for male and female students” at K-12 schools.

Morning Reads

Alito warns Congress can ‘turn off the lights’ at Supreme Court

Zach Schonfeld, The Hill

While speaking to the Federalist Society on Thursday, Justice Samuel Alito “warned against any potential congressional action to defund the Supreme Court as he defended the importance of an independent judiciary,” according to The Hill. “Congress can turn off the lights at the Supreme Court and stop everything from happening if they want to defund their activities,” he said. “So, it is important to preserve the independence of the judiciary. If that is eliminated, then the Constitution as adopted in 1789 will no longer be the same.” He also described the judicial branch as “the least powerful branch,” adding that “it is ‘vulnerable’ to Congress and the executive.” But that doesn’t mean judges can’t go too far, Alito added. “If you think about a hand grenade, a 500-pound bomb and a nuclear weapon,” he said, “the hand grenade is the least dangerous. But that is not to say that it is not dangerous.”

FTC urged to probe companies not sharing tariff refunds with consumers

Rachel Barber, USA Today

In February, “the Supreme Court struck down tariffs President Donald Trump imposed last year under the International Emergency Economic Powers Act,” holding that the law does not grant the president the power to impose tariffs. The next month, the U.S. Court of International Trade “ordered Customs and Border Patrol to issue refunds to importers totaling about $166 billion.” Now, seven Senate Democrats are asking the Federal Trade Commission “to investigate whether large corporations that received billions of dollars in tariff refunds violated federal law by not passing them on to their customers,” according to USA Today. “By increasing consumer prices, ostensibly due to tariff costs, and then refusing to provide refunds to consumers when they are later reimbursed for those tariff costs,” the senators wrote, “corporations may be in violation of the” Federal Trade Commission Act, which “empowers the commission to prevent ‘unfair or deceptive acts or practices in or affecting commerce.’”

White House counsel says Supreme Court delivered ‘generational win’ on presidential firing power

Sophie Brams, The Hill

During a Thursday panel at the Federalist Society’s annual National Lawyers Convention, “White House counsel Will Scharf praised the Supreme Court’s June decision strengthening presidential firing power as a ‘generational win’” that “righted what he viewed as a ‘historic constitutional wrong,’” according to The Hill. “A president who can’t control who’s exercising the executive power that is vested in him, that’s a cabined presidency,” Scharf said. “The Supreme Court did a masterful job,” he added. “Really got it right.”

Richard Glossip pleads guilty to accessory to murder in 1997 case

Kimberly Querry-Thompson, KOKH

On Thursday, former death row inmate Richard Glossip appeared in Oklahoma County District Court “for what was supposed to be his second hearing on pretrial motions” in the state’s effort to retry him for the 1997 murder of Barry Van Treese. “However, the hearing took a turn when the state announced an agreement between the prosecution and the defense,” under which “Glossip pleaded guilty to one count of accessory to murder,” according to KOKH in Oklahoma City. The plea agreement comes after the Supreme Court in 2025 “threw out Glossip’s murder conviction and death sentence,” determining that prosecutors had failed to correct false testimony. “Glossip’s sentencing is set for Dec. 17 and Dec. 18.”

Will the Supreme Court Thwart Congressional Investigations?

Adam Liptak, The New York Times (paywalled)

In his newsletter for The New York Times, Adam Liptak highlighted “hurdles and roadblocks [] erected by the Supreme Court” that may stand in the way of at least some of the new Congress’ planned investigations into “the Trump administration and its allies.” For example, in 2024’s Trump v. United States, in which the court granted the president “substantial immunity from prosecution, Chief Justice John Roberts indicated that some subjects may be entirely off limits to congressional investigators.” “Those subjects included issuing pardons, firing subordinates and deciding ‘which crimes to investigate and prosecute.’” It is also significant, according to Liptak, that “the court has never definitively resolved” whether Congress can “sue the executive branch,” an issue that will likely arise if the administration refuses “to give Congress documents or let officials testify.” Liptak noted that “it is not at all clear that the Supreme Court would be willing to mediate” disputes between Congress and the executive branch over access to information, “or if the justices would side with the Democratic Congress if it does.”

On Site This Week

From the SCOTUSblog Team

What Trump cases might soon return to the Supreme Court?

During the 2025-26 term, the Supreme Court handed President Donald Trump defeats in cases on birthright citizenship, tariffs, and his effort to fire Lisa Cook. But those rulings do not necessarily mean the justices have seen the last of any of those issues.

Contributor Corner

The sometimes straightforward, sometimes befuddling certiorari process

In his Nuts and Bolts column, Stephen Wermiel explored how the Supreme Court decides what cases to decide, also known as the certiorari or “cert.” process. According to him, “questions will continue to arise about how th[is] process works – but one should not hold their breath waiting for all the answers.”

SCOTUS Outside Opinions

What is a discriminatory effect? The Montgomery County case and unpacking when schools may try for racial diversity without using race

In a column for SCOTUSblog, Deborah Hellman and Lily Hu revisited the Supreme Court’s decision to grant review in Association for Education Fairness v. Montgomery County Board of Education, a case on the circumstances under which facially neutral admissions policies violate equal protection by producing a discriminatory effect.

Relist Watch

Eleven new relists in search of four votes

In his Relist Watch column on Wednesday, John Elwood explored 11 petitions for review that will get a second look from the justices during today’s conference, which cover such issues as the Trump administration’s effort to remove certain noncitizens from the country without first allowing them to apply for asylum and a ban on carrying firearms in “sensitive places.”

Contributor Corner

Justice Alito and the tradition of a written constitution

In his Born Free and Equal column on Wednesday, Steven Calabresi reviewed Justice Samuel Alito’s new book and commended it as “exceptionally intellectual and provocative.” “The book fills the shoes of the late Justice Scalia, and I would recommend it to everyone – whether they agree with Justice Alito’s jurisprudence or not,” Calabresi concluded.

Court News

Trump administration brings White House ballroom battle back to Supreme Court

On Tuesday, Amy reported that the Trump administration has once again asked the Supreme Court to intervene in its efforts to build a new White House ballroom. U.S. Solicitor General D. John Sauer told the justices that the project “should be permitted to move forward outside the shadow of judicial superintendence.”

Contributor Corner

Whose tradition, which history? Agency adjudication and Sun Valley Orchards

In her inaugural Substance and Procedure column on Monday, Rachel Bayefsky explored the Supreme Court’s application of a “history-and-tradition” analysis in recent cases on the constitutionality of agency adjudication – that is, “the practice of resolving disputes ‘in-house’ within administrative agencies instead of addressing” them in a court. According to Bayefsky, the court’s decision in Department of Labor v. Sun Valley Orchards “may have an important impact not only on the future of agency adjudication, but also on the trajectory of historically driven interpretation across a variety of pressing constitutional debates.”

Podcasts

Advisory Opinions

First Amendment, Still Revolutionary

Sarah Isgur and David French analyze free speech issues from the past three election cycles, including Donald Trump’s “they/them” ad in 2024 and the Trump administration’s threats to social media companies. They then discuss a free speech fight that may define the next two years.

A Closer Look

Justice Samuel Nelson

The Closer Look in Friday editions is typically a judicial biography. This week, we cover Justice Samuel Nelson, who served on the court from 1845 to 1872.

While you might think there’s only one justice with the name Samuel based on recent news coverage, there have actually been five with that first name in the court’s history – and in today’s justice biography, we’ll take a look at the second. (The first, if you recall, didn’t get things off to a particularly great start: He is the only justice to have been impeached.)

Although referred to as “one of those nineteenth-century justices of whom we often lose sight” (the Journal of Supreme Court History said it, not us), Justice Samuel Nelson served on the court for 27 years as a “pragmatic yet low-key man,” as described by Oyez. Things began for him in Hebron, New York, where he was born in November 1792 to Scot-Irish farmers. His father helped pay Nelson’s Middlebury College tuition by selling a person who was enslaved. Nelson graduated from Middlebury in 1813; clerked at a Salem law firm; followed one of its partners to Madison County, New York when the firm split; and was admitted to the bar in 1817 (two years later, he married his law firm practice partner’s daughter).

In 1820, Nelson was appointed the town’s postmaster and served as a presidential elector for James Monroe. He became a delegate to the 1821 state constitutional convention, where he pushed to eliminate property requirements for male voters.

New York Gov. Joseph Yates appointed Nelson as a state circuit judge in 1823. Gov. Enos Throop elevated him to the New York Supreme Court of Judicature (that state’s highest trial court) in 1831, and he became its chief justice in 1837. In Jack v. Martin, he held that New York could not interfere with enforcement of the federal Fugitive Slave Act and noted that anyone who seized a free man would, under state law, “be answerable like any other trespasser or kidnapper.”

In 1845, Nelson ran for the U.S. Senate and lost. Shortly after, President John Tyler nominated him to succeed Justice Smith Thompson. The Senate confirmed Nelson by voice vote in February 1845, and he served as circuit justice for the 2nd Circuit (Connecticut, New York, and Vermont) while on the Supreme Court.

On the bench, Nelson “kept a low profile,” generally voting with the majority. He did write a few notable decisions, one of them in 1850’s Hotchkiss v. Greenwood, a landmark patent law case. In 1857’s Fellows v. Blacksmith, Nelson wrote for a unanimous court that a land company could not forcibly evict the Tonawanda Senecas, calling such litigation “appalling.” According to one scholar, Nelson “persuaded all his brethren, including those who had supported Jacksonian Indian removal policies, of the merits of the Tonawandas’ Seneca treaty arguments.” The same scholar wrote that Fellows eventually allowed for the treaty that let the tribe buy back 7,500 acres of its reservation.

Fellows was decidedthe same year as Dred Scott v. Sandford. Nelson reportedly resisted behind-the-scenes pressure from incoming President James Buchanan to endorse at least part of Chief Justice Roger Taney’s opinion (unlike Justice Robert Grier). Nevertheless, he concurred with the majority, and scholars have “castigat[ed] him, along with Justice Robert Grier of Pennsylvania, for being the only two Northern jurists on the bench who voted with the majority in the case.” (Ten years later in Georgia v. Stanton, Nelson refused to let Georgia block Congress’ Reconstruction program, holding that its claims “call for the judgment of the court upon political questions.”)

In the lead-up to the Civil War, Nelson and Justice John Campbell acted as intermediaries between Secretary of State William Seward and Southern commissioners who wanted the Confederacy recognized. Privately, Nelson wrote on Christmas Day in 1860 that “we almost despair of the republic” and in 1862 wrote to Justice Benjamin Curtis that he hoped the country might survive both “the fierceness of the enemy without and imbecility of the authorities within.”

Nelson also dissented in the 1863 Prize Cases, arguing that President Abraham Lincoln could not legally blockade Southern ports until Congress declared war. The dissent (along with his vote in Ex parte Milligan to overturn the conviction of a man charged with helping the Confederacy and opposing expanding federal power) led critics to question his loyalty to the Union.

Following the civil war, President Ulysses S. Grant in 1871 named the 79-year-old Nelson one of five American members of the commission handling claims against Great Britain for the damages caused by British-built Confederate ships, which Nelson accepted (although he wrote that he was “hardly at liberty to refuse”). The proceedings won the United States $15.5 million.

Nelson retired in November 1872. He died in Cooperstown, New York, in December 1873, at age 81. One historian wrote that Nelson was a “quietly competent jurist” in comparison to several of “his more flamboyant and controversial judicial brethren” (some of whom we will be covering soon).

SCOTUS Quotes

On Nov. 10, Judge Richard Posner passed away at the age of 87. Posner, who served on the U.S. Court of Appeals for the 7th Circuit from 1981 to 2017, was one of the most influential jurists never to have served on the Supreme Court. In addition to his voluminous opinions (some affirmed, others denied), Posner authored over 60 books and more than 500 articles and served as a Senior Lecturer in Law at the University of Chicago Law School. Among his many contributions, Posner helped give life to the law and economics movement and to the study of judging as an empirical pursuit. As Zach, our executive editor, can attest to first-hand, he was both charming and hilarious in person and did not suffer bad ideas lightly. But this is SCOTUSblog. So what did Posner have to say about the court specifically? Here are some choice quotations (you may notice a theme):

• 2006: “A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all.”
• 2006: “The standard argument is that secrecy [of the court’s proceedings] is necessary for candid communications among the justices and between the justices and their clerks. But judicial decisions, unlike business and political and military decisions, are supposed to be based, and rightly so, on reasons that can be stated publicly without embarrassment.”
• 2013: “I don’t think it’s a real court. I think of it as basically ... it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.”
• 2013: “Now the Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year.”
• 2016: “There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.”

***

On Oct. 19, the Supreme Court granted certiorari in Association for Education Fairness v. Montgomery County Board of Education. The case is one of several in recent years dealing with magnet school admissions policies. While prior cases addressed the constitutional permissibility of changes to selection criteria at some of the nation’s most sought after public high schools like the Thomas Jefferson High School in northern Virginia and Stuyvesant High School and Bronx High School of Science in New York City, this case addresses whether changes to selection criteria for middle school magnet programs in Montgomery County, Maryland violates the equal protection clause of the 14th Amendment.

In all of these cases, including this one, the policies at issue are facially neutral, meaning that a student’s race is not considered in the admissions process. As a result, the Supreme Court’s decision in Students for Fair Admissions v. Harvard is not directly relevant. In that case, the court held that using race as an explicit factor in the admissions process was unconstitutional.

At issue in this case is a change from one facially neutral admissions policy to another. During the pandemic, the school adopted the so-called “Pandemic Plan.” Under the Pandemic Plan, all students are considered for admission to magnet schools if they meet minimum grade requirements and if their locally compared state assessment scores exceed a cut-off. Admission is then determined by a lottery from among those students who meet these requirements. Because schools in the region differ in their racial composition, basing admissions decisions on how well students score relative to other students in their same school ultimately affects the demographic composition of admitted students. AFEF claims that the Pandemic Plan violates equal protection because Montgomery County adopted it in order to change the racial demographics of the magnet schools and the plan had the effect of decreasing the share of Asian-American and white students.

According to the approach used by all of the courts evaluating magnet school admission practices, these facially neutral policies only violate equal protection if they are adopted for an impermissible reason (the intent element) and produce a discriminatory effect (the effect element). In AFEF v. Montgomery County, the district court found that the plaintiff had not alleged facts sufficient to satisfy either prong and so the school board’s motion to dismiss was granted. The U.S. Court of Appeals for the 4th Circuit affirmed on the grounds that the district court properly evaluated whether there was a discriminatory effect.

When and why facially neutral policies violate equal protection is a hotly contested issue. Consider first the intent element. While all agree that the intention to exclude members of a particular racial group is invidious, there is disagreement about whether the intent to increase racial diversity is also impermissible. The Supreme Court has not yet directly ruled on this important issue and will not do so in this case. The cert grant in AFEF v. Montgomery County focuses only on the second element: the discriminatory effect. In particular, the Supreme Court limited its grant of AFEF’s petition to the following question: “Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.”

This framing of the question roughly tracks the debate in the circuits between two different ways of showing discriminatory effect. In order to illustrate, let’s set aside the intent prong and assume it has been satisfied, either because the policy was actually adopted in order to reduce the percentage of Asian or white students in the magnet schools (though this fact is in dispute) or because the intention to increase the racial diversity of the schools is an impermissible intention (though this legal claim is contested). According to the 4th Circuit in Coalition for TJ v. Fairfax County and the U.S. Court of Appeals for the 1st Circuit in Boston Parent Coalition for Academic Excellence Corp. v. School Committee for the City of Boston, the effect element would be satisfied if a lower percentage of Asian or white students are admitted than applied. For example, if Asian students represent 30% of the applicant pool but only 20% of the admitted class, this would constitute a discriminatory effect. However, if 40% of the admitted class are Asian, then no discriminatory effect would be found because Asian students would in this case constitute a higher percentage of the admitted class than their 30% share in the applicant pool. In AFEF v. Montgomery County, both the district court and the 4th Circuit followed this approach.

By contrast, the U.S. Court of Appeals for the 3rd Circuit in Sargent v. School District of Philadelphia, the dissenting judge in Coalition for TJ, and Justice Samuel Alito in his dissent from the denial of cert. in that case, assess discriminatory effect differently. Rather than compare the percentage of admitted students of the race alleged to be intentionally excluded to their percentage in the wider applicant pool, these jurists look to see if there has been a decrease in the percentage of admitted students of this race under the new policy as compared to the prior policy. When a meaningful decrease is present, this constitutes a discriminatory effect. For example, if 50% of the admitted class were Asian under the prior policy and 40% are Asian under the new policy, this would constitute a discriminatory effect. And this would be so even if Asian students are still “overrepresented” in the sense that the percentage admitted is higher than their percentage of the applicant pool (30% in this example). In an article evaluating each of these approaches, we call this second approach the “Before-After Comparison” or “BAC,” and we call the first approach the “Population Comparison” or “PC.”

Yet both the PC and the BAC, as means of assessing discriminatory effect, have significant flaws. Let’s begin with the PC – the test used by the 4th and 1st Circuits. Recall that because the doctrine requires both impermissible intent and a discriminatory effect, it requires something more than just the fact that a policy is chosen for an invidious reason. The PC would effectively allow deliberate attempts to exclude Asians so long as they do well enough overall and do not fall below their share of the applicant pool. That seems problematic.

Next consider the BAC, the test adopted by the 3rd Circuit, on which the discriminatory effect prong is satisfied only if the percentage of Asian students declines under the new policy. This test puts a strong thumb on the scale in favor of existing policies, whatever their merits, since sticking with the same policy is unlikely to result in major changes in the demographics of who is admitted. Thus a decision to keep things the same will evade scrutiny. And this is so even when maintaining a policy is done for uncontroversially bad reasons (say, because the existing policy is known to admit fewer Asian students, for example). In addition, the test is oversensitive to any changes in policy, since such changes are likely to lead to demographic shifts among the admitted students and thereby trigger a decrease for some group. While it is true that there will only be an equal protection violation if the school board at issue intended this decrease, it remains the case that any change at all is risky because the effect element will likely always be satisfied for some group. For both these reasons, the BAC privileges the status quo and makes change difficult by making the status quo policy the normative baseline.

The use of the term “aggregate” in the question on which certiorari was granted suggests that the court might think that the PC approach is flawed because it looks at how groups are treated rather than at how individuals are treated. And indeed it does. In AFEF v. Montgomery County, the discriminatory effect element would be satisfied (using the PC) if the percentage of Asian and white students admitted was lower than the percentage of these groups among the fifth-grade students in the county. But the BAC is no different in this respect. It too looks at how a racial group fares under the Pandemic Plan. The BAC would find discriminatory effect if the percentage of Asian students admitted under the Pandemic Plan is less than the percentage admitted under the approach that preceded it. In other words, both tests for discriminatory effect focus on how the racial groups who are alleged to be the target of the invidious intentions fare as groups.

Can either of these tests be reframed in ways that focus on how an individual is treated, rather than how members of her racial group are treated? After all, equal protection doctrine has long emphasized that the clause protects individuals rather than groups. Unfortunately, this is not easy to do. If a school uses race to decide which students to admit, it makes sense to say that a student’s race played a role in how she was treated. Facially neutral policies are different, however. Consider a simple and familiar facially neutral policy. Suppose a school board decides to admit the top 2% of each middle school to its coveted magnet high school. Suppose also that it does so, at least in part, to increase the racial diversity of the magnet school. Because there are more black and Latino students in some middle schools and more Asian and white students in others, this policy then produces a magnet school class that has a significant number of students of all races, let us suppose. Now consider an Asian student who is denied admissions because she is not in the top 2% of her middle school class. Has she been denied admission “because of her race?”

One answer to this question could be simply “no.” Any student rejected by the admissions policy suffers a harm. It is this harm that gives the student standing to sue. But this rejection is not based on the student’s race when the school’s admissions policy is facially neutral. If this is correct (and if aggregate tests are out), then the court’s only option is to jettison the effect prong of the claim altogether. Were the court to take this route, facially neutral laws or policies would violate equal protection solely on the grounds that they were adopted with invidious intent.

The U.S. Court of Appeal for the 2nd Circuit attempts a different approach. It uses the BAC to explain how individual students have suffered a discriminatory effect under a facially neutral policy. In Chinese American Citizens Alliance of Greater New York v. Adams, the percentage of Asian students admitted under the challenged admissions policy remained higher than their percentage in the applicant pool (thus failing to satisfy the PC in its aggregate form) and also did not decrease as compared to the prior admissions policy (thus failing to satisfy the BAC in its aggregate form). Yet the 2nd Circuit held that the effect element “can be satisfied by proof of an adverse harm to one or more individuals based on their race that has resulted from that discriminatory law or policy” (emphasis added). But the crucial question remains: in what way were the rejected Asian students rejected “because of their race” when race did not affect these decisions since the policy is facially neutral? The 2nd Circuit answers that question by referring to the fact that these students were “qualified for admission on an individual basis under the previous criteria" (emphasis added). In other words, in the view of the 2nd Circuit, if a new policy is adopted to exclude Asian students, then those Asian students who would have been admitted under the previous policy are denied admission because of their race.

This approach can be understood as an attempt to make the BAC individualized: the court here is determining whether a student’s rejection constitutes a distinctively discriminatory harm by drawing a comparison with how she would have fared under the previous policy. If this approach works (which we are agnostic about) for the BAC, a similar approach can be tailored for the PC as well. Here is how that would go. If a facially neutral policy was adopted in order to exclude Asian students and that policy is one under which Asian students are admitted at lower rates than students of other races, then each Asian student subject to that policy is subject to a policy that makes it harder for them to be admitted than it is for students of other races. On this view, each Asian student denied admission using this policy is then denied admission based on their race.

Thus, both tests can be articulated such that they capture a way that individual students are rejected based on their race. For this reason, the court should not choose one approach over the other on the grounds that one frames the injury in individual terms and the other looks at how groups are treated.

This leaves the court with two options. First, as mentioned earlier, it could jettison the effect prong of the claim entirely and conclude that bad intentions alone render a facially neutral admissions policy impermissible. Doing so would put more pressure on the importance of answering the question of what intentions are invidious and, in particular, whether the intent to increase racial diversity is itself unconstitutional. Alternatively, the court must confront the question of discriminatory harm head-on and assess whether the BAC or PC provides the better account of it.

This process has been explained before, but – given the court is now choosing what cases to hear next term – I’d like to use this column to examine some questions about the certiorari or “cert.” process, as it is known. As we shall see, some of these questions have answers; others do not.

First, a review of the basics. The vast majority of cases come to the Supreme Court in the form of petitions for certiorari, a Latin term meaning “to be more fully informed.” The court receives nearly 4,000 petitions each term and grants review to about 60. By a 100-year-old tradition, review is granted when four of the nine justices want to hear a case. When this occurs, the parties file briefs and the justices hear oral argument before issuing their decision.

This process is a blend of transparent argument and secretive deliberation. The transparent portion is that the losing party in a lower court, the petitioner, files a public petition for certiorari, making the best case for why the court should resolve the legal issue in the case. The winner in the lower court, the respondent, also spells out why the court does not need to review the ruling of the lower court. After that, however, the case disappears into the halls and procedures of the high court.

Question one: how does the court handle and process the petitions?

As noted, by 100-year-old custom, it takes four votes for the court to agree to review a case (the “rule of four”). But the vote to grant or deny cert. is not public. We do not know if a petition met with overwhelming consensus that review was necessary or not, or whether it scraped by or just missed out on being granted.

Nor do we know why the court declines to review a case. When the court agrees to decide a case, the final opinion is likely to make clear why the justices were interested. Denials of cert. petitions, however, are not accompanied by any explanation, except in the few instances when an individual justice writes a dissent from the denial of a petition. Justice Sonia Sotomayor, for example, sometimes points out in a dissent or concurrence what she deems to be an important issue of individual rights in criminal cases. But such dissents are relatively infrequent.

This can be frustrating to counsel: Just how much interest an unsuccessful petition attracted would be useful to lawyers trying to decide whether to petition the court in the future on an issue that has been turned down one or more times.

Question two: what roles do the law clerks and justices play?

The answer is known to some extent but secret in other respects. For seven of the nine justices – all but Justices Samuel Alito and Neil Gorsuch – the initial review is by a single law clerk who writes a memo to be shared with the seven justices who participate in a “pool” for reviewing the petitions. Clerks to Alito and Gorsuch handle the petitions on their own.

But much about this aspect of the process remains hidden from public view. Little is known outside the court’s inner circle about how the clerks prepare their memos and what factors influence their recommendation to grant or deny review. The court’s own internal Rule 10 says the court is looking for cert. petitions that either present a conflict in which two or more lower courts have reached differing interpretations of an important issue of federal law, or which, even in the absence of a conflict, present an important question that the court should decide. But those factors alone do not guarantee cert. will be granted.

Just how influential the memo writer’s recommendation is on the judgment of the justices is also unknown. Nor is there any public knowledge of how often justices think the pool memo reached the wrong recommendation.

The cert. pool has been in use by the court for more than 50 years. The justices are certainly able to make adjustments if they find flaws in how it works, and the separate handling of petitions by Alito and Gorsuch provides some check on the process. But since this is largely an internal procedure of the court’s own making, it is not subject to any public accountability.

And the justices rarely discuss it. In his new book, for example, Alito makes no mention of the cert. process or the pool. Ultimately, little is known outside the court about how individual justices handle the pool memos.

Question three: what influences the grant or denial or cert.?

Many factors besides Rule 10 might contribute to whether a petition is granted. Law clerks may be influenced by whether any of the most respected, regular Supreme Court practitioners are involved in the case. Clients certainly think this matters, since they may spend thousands of dollars to hire firms with top Supreme Court practices, those that boast having former solicitors general and former law clerks to the justices as members of the firm.

The clerks may also be swayed by what judges decided the case below, since some of them are especially respected in conservative or liberal circles. In certain instances, a federal appeals court may provide additional fodder to grant review. A party might have asked for rehearing by the full federal appeals court after losing in a three-judge panel. Such an “en banc” ruling, as it is called, can be especially influential, just as a set of opinions dissenting from denial of en banc review also tees up signals about the importance of a case.

Caution also plays a role here. No clerk wants to recommend that cert. be granted only to find that there are procedural flaws in a case (leading to it being “dismissed as improvidently granted”) or that the justices are not inclined to take up an especially ideologically divisive question.

Question four: why are there so few cert. grants?

The number of granted cases in recent years has reached the lowest level in many decades. At the height of the tenure of Chief Justice Warren Burger (1969-1986) in the 1980’s, the justices were deciding around 150 cases each term. Now the number is closer to 60.

Oddly, no one seems to know why.

There are some possible explanations, to be sure. One obvious factor is the rise of the interim docket, sometimes called the emergency or shadow docket. This docket involves interim requests for relief, where a party to a case asks the Supreme Court to block a lower court order in the interim period while the case is being litigated in a lower court. The Justice Department under President Donald Trump has used this path often, asking the justices to order that a Trump policy be allowed to remain in effect or to take effect after it was blocked by a federal judge.

These interim orders, decided without full briefing and oral argument, are taking up an increasing amount of the court’s time, and some argue that this leaves less time for the justices to add more cert. petitions to be decided on their merits. While this is undoubtedly a factor, the number of cert. petitions being heard by the court each term has been shrinking for a long time, well before the significant uptick in interim docket matters.

Different theories have been proffered by court observers for this decline over time: that Congress is passing fewer new laws that lead to lawsuits and require judicial review; that there is less disagreement between conservative justices and conservative lower court judges, so less need for review; or even that the justices simply like having fewer cases to decide and therefore vote for cert. more sparingly.

It is difficult to prove any one of these theories, and the justices are not providing any answers. In one case last spring involving a state court’s jurisdiction over a products liability lawsuit involving a company based outside the state, counsel for both sides agreed that the court should hear and decide the issue (a rare occurrence, as the winner below typically argues against cert. being granted), but the justices still denied the petition. As is typically the case, there was no explanation.

Question five: when does the court grant cert. before it is requested?

The Supreme Court’s Rule 11 and federal law allow the justices to essentially reach out and grant review to a cert. petition before it has been decided by the appropriate appeals court; that is, before the appellate process has run its course. This once rarely used process has become a much more frequent tool for the justices. Whether they are following the guidance of the rule and focusing on “imperative public importance,” or whether they are impatient to tackle some major legal issues, or whether they simply think it will be more efficient to leapfrog over the court of appeals, the practice is clearly on the rise.

A recent example is Trump v. Slaughter, a fight over the independence of the heads of federal agencies from being fired by the president. The federal government came to the court for an interim stay of the ruling of a federal district court in the District of Columbia that blocked Trump from firing Rebecca Slaughter, a member of the Federal Trade Commission, because there was insufficient cause. The court granted the stay, allowing the firing to take effect, and then also granted cert. and ordered the case to be argued in December 2025.

***

The process of granting review will continue unabated throughout the current court term. And as it does, questions will continue to arise about how the process works – but one should not hold their breath waiting for all the answers.

The Democratic Party’s decisive victory in the midterm elections, which gave it a majority in both the U.S. House of Representatives and the Senate, could theoretically hinder Trump’s plans. However, Democrats would need not just a majority to pass legislation curbing the president’s authority but a veto-proof majority: 67 votes in the Senate and 290 in the House, which could be more difficult to obtain.

At the Court

The Supreme Court Building was closed on Wednesday for Veterans Day.

Tomorrow, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from Friday’s conference are expected on Monday at 9:30 a.m. EST.

The constitutional problem is how to distinguish between the judicial power that is allocated to the judicial branch (in Article III of the Constitution) and the executive power that is allocated to the executive branch (in Article I of the Constitution). The Supreme Court always has recognized that it is permissible for officials in the executive branch – who don’t have the protections (including life tenure) that Article III gives to federal judges – to resolve questions in a proceeding that looks an awful lot like the kind of trial you might see in a federal court. And it also on several occasions has invalidated schemes that seemed to the court to go too far in that direction. To pick the most famous example, the justices invalidated the initial version of the Bankruptcy Code of 1978 because it gave undue adjudicative responsibility to bankruptcy “judges” that are not protected by Article III. What the court has never done well is explain exactly how far such powers can go. Nevertheless, recent decisions like Loper Bright Enterprises v. Raimondo and Trump v. Slaughter show a great willingness to rein in the powers traditionally granted to the administrative state.

This case presents a dispute as to whether employers under the H-2A visa program (for temporary foreign agricultural workers) gave those employees certain things they were promised before being admitted to the United States. Conventionally, when the Department of Labor decided that an employer had failed to treat workers as it promised pre-admission, it imposed fines or penalties in an administrative proceeding, often handing the funds over to the employees as compensation in the nature of back pay. The question for the justices is whether Article III of the Constitution can tolerate that dispute being resolved internally by DOL employees rather than by judges in a federal court.

The government sees the dispute as squarely involving two categories of so-called “public rights” for which Article I treatment is permitted: the immigration power and public benefits. The immigration power is involved because the workers were permitted to enter the country on the condition that the employer treat them as agreed; the public benefit power is involved because the right to enter is a benefit almost entirely within the discretion of the executive.

Several of the justices found that argument rather weak. Chief Justice John Roberts, for example, commented early on that the leading case about the immigration power (Oceanic Steam Navigation v Mellor) “had to do very much with entry, a condition of entry, and loathsome diseases. This strikes me as significantly different. … You’re trying to leverage an entry several weeks, months … in the past to the particular condition of work that doesn’t seem to have much to do with the actual entry.” For the chief justice, the government was trying to “leverage what is a significant barrier to entry, where you have a lot of deference to the executive branch,” and “trying to … extend that broad authority beyond the justification for its application.” He repeatedly emphasized that the specifics of the case “look more like a condition of employment rather than … entry.”

In a similar vein, Justice Amy Coney Barrett stated to Principal Deputy Solicitor General Sarah Harris (arguing for the government): “I think we agree that the aliens could be removed pursuant to our immigration tradition without an Article III court. But the fines, I’m wondering if they’re different. …. So I’m … wondering here why that wouldn’t be the case for the alien. If the alien violated some sort of condition on the H-2A visa, why wouldn’t the alien be entitled to an Article III court before the alien had to pay that kind of a fine?” At which point Justice Neil Gorsuch chimed in that he “thought [an earlier case had said that] confiscating property goes to an Article III court when you’re trying to confiscate property from aliens. … I thought we decided a long time ago that you’ve got to go to an Article III court. Are … you resisting that?”

Justice Brett Kavanaugh pointed to yet another precedent on civil penalties: “In Tull [v. United States], we said … and this is 40 years ago – a civil penalty was a type of remedy at common law that could only be enforced in courts of law. …. That’s a fairly definitive statement in our precedent. What … are we supposed to do with that?”

That’s not to say that all of the justices sided against the government. Justice Elena Kagan, for example, found the case well within the boundaries of existing doctrine. To Harris, she commented early on: “[I]sn’t there a condition of entry here? … [T]hey wouldn’t be admitted unless the employer had promised certain things.” To Robert Johnson arguing on behalf of the employer – a different Robert Johnson, not the blues singer – she was much more pointed:

[T]his is an admissions case. An employer has gone to the government and said: We’re going to make various certifications so that you allow us to bring in a boatload of foreign workers. … [A]nd what the government is now saying is those admissions requirements that we put on the admission of these workers have been violated. And just the same way that the admissions requirement in Oceanic has been violated, so too here, and so the same penalties can apply. … I feel that at the base of your argument, Mr. Johnson, you’re trying to get us to think that the H-2A program is not an immigration program. But it is an immigration program.

Offering a parallel perspective, Ketanji Brown Jackson emphasized that the court in numerous contexts has approved administrative adjudication of civil penalties. She repeatedly challenged Johnson to reconcile his argument with those decisions.

But ominous for the government was some repeated questioning of Harris about “the best way for you to lose” (as Justice Sonia Sotomayor put it). From early on in the argument, even the justices who seem most likely to accept the constitutionality of the arrangement were trying to help Harris identify the least damaging way for the court to rule against her. At the beginning of her argument and throughout it, Harris emphasized to the justices that a broad ruling against her on the constitutional question would unsettle programs in a wide variety of areas, ranging from Medicare, to government contracts, to student loans, but that did not seem to make any headway for her.

It is not at all clear from the argument how exactly the justices are going to come down. Clearly a significant group are considering the idea that an award of civil penalties is too far removed from the entry of the employee to be protected by the “public rights” doctrine that would protect administrative determination of the right to enter. My guess is that even those justices don’t yet know how far they would be willing to go – or how far they can go and secure five votes of agreement. I expect this case to come down late and be sharply divided.

First, some old business. The justices disposed of two repeat visitors last week, producing one winner and one loser. After three relists, Goldman Sachs Bank USA v. Brown finally got the nod. The court will decide when bankruptcy courts can refuse to enforce arbitration agreements in suits alleging violations of the automatic stay. But two-time relist Clemente Properties, Inc. v. Pierluisi-Urrutia struck out: The court denied without comment the petition brought by Roberto Clemente’s family over Puerto Rico’s use of the baseball legend’s image, which raised questions about takings of intangible property and Puerto Rico’s sovereign immunity.

After a quiet week, the relist pipeline is suddenly gushing: The justices have served up 11 new relists for Friday’s conference, up from four last week. Several come in pairs or trios, and the federal government – the court’s most successful repeat litigant – advocates review in three of them.

The government seeks asylum – from the D.C. Circuit

The most consequential new relist this week may be Mullin v. Refugee and Immigrant Center for Education and Legal Services. On his first day back in office, President Donald Trump issued Proclamation 10888, which suspended the entry of aliens “engaged in the invasion across the southern border” and barred those who violate the suspension from invoking provisions of the immigration laws that would let them stay, including asylum.

Three nonprofits and 13 individuals sued. The district court certified a class of people subject to the proclamation who are or will be present in the United States. It held unlawful the proclamation’s restrictions on asylum and other statutory protections, as well as its authorization of removal procedures outside those established by Congress, and issued a classwide injunction. A divided panel of the U.S. Court of Appeals for the D.C. Circuit narrowed the class definition, but affirmed. It reasoned that although asylum is discretionary, the executive cannot categorically deny covered migrants access to asylum by proclamation and informal guidance rather than through the procedures Congress prescribed. Judge Justin Walker dissented in relevant part.

The solicitor general’s petition argues that asylum is discretionary and that the president may categorically deny it to those covered by the proclamation. Requiring the government to accept applications it has already decided to reject, the government contends, serves no purpose. It also challenges the classwide injunction and the breadth of the certified class. The government argues that the ruling threatens to revive chaos at the border. Iowa and 21 other states support the petition, arguing that the decision undermines the federal duty to protect the states against invasion.

The respondents’ brief in opposition argues that Congress expressly gave noncitizens physically present in the United States the right to apply for asylum, regardless of how they entered, and that the president cannot eliminate that right by proclamation. They emphasize the absence of a circuit split and dispute the government’s claims that the policy was responsible for reducing border crossings. They call the remedial issues fact-bound and say the government overstates the border crisis, noting that apprehensions had already fallen more than 90% from their peak before the proclamation.

The D.C. Circuit’s mandate is stayed, leaving the asylum restrictions in place for now. The absence of a split weighs against review, but the invalidation of a major administration policy could well persuade the justices to take another trip to the border. Will the court resolve this case quickly or let it sit for a while as it decides what to do, as it has in other high-profile cases?

GEO-political disputes

Our first group of cases asks whether Washington may regulate private companies that run federal immigration detention centers. In GEO Group, Inc. v. Nwauzor, a class of detainees and the state sued GEO, which operates the Northwest ICE Processing Center in Tacoma under a federal contract, for not paying Washington’s minimum wage to detainees in a voluntary work program for which ICE reimburses $1 a day. GEO argues it’s not a conventional labor relationship, but just an effort to prevent the detainees from becoming restless from idleness. The U.S. Court of Appeals for the 9th Circuit certified the question to the Washington Supreme Court, which held that the state minimum-wage law applied to the detained workers. A divided panel of the 9th Circuit then rejected GEO’s supremacy clause defenses, leaving GEO with a judgment it puts at about $37 million. Seven judges voted to rehear the case en banc, and six joined dissents, arguing that (among other things) the state law “interferes with federal immigration-detention policy” and thus directly regulates the federal government.

GEO argues that Washington cannot regulate a federal detention program through a contractor while exempting its own detainees from the wage law. Washington and the detainees respond that the law applies equally to every private detention contractor, whether it works for a city, the state or the federal government, and that the U.S. Court of Appeals for the 3rd Circuit applies the same test as the 9th. The detainees also note that ICE has since revised its detention standards, which they say limits the decision’s future impact.

In a court-invited amicus brief, the U.S. solicitor general recommends granting review. The government argues that the law discriminates against the federal government, because Washington exempts its own facilities while barring itself from contracting with private ones, and that federal statutes leave detainee pay to the Secretary of Homeland Security. It also says the decision conflicts with a decision of the 3rd Circuit ruling on a New Jersey law targeting private detention contractors.

GEO Group, Inc. v. Ferguson challenges a 2023 Washington statute regulating private civil detention facilities, which GEO says reaches its Tacoma facility alone. The district court preliminarily enjoined it, but the 9th Circuit vacated that ruling, rejecting GEO’s direct regulation and preemption claims and remanding on its discrimination claim against private contractors. GEO says Washington is micromanaging federal detention by regulating a contractor; the state says its requirements resemble those governing other civil facilities. It also points to further proceedings on remand as a reason not to intervene yet.

A grant in Nwauzor seems likely; Ferguson presents a closer question, but at minimum it seems likely to be held if Nwauzor is granted.

Initial public … omissions?

Two companies that went public while business was booming present a question of required disclosures in federal securities filings: How much bad news must a company reveal? Two related relists ask the justices to clarify when withholding information makes an IPO registration statement misleading under Section 11 of the Securities Act of 1933.

In Robinhood Markets, Inc. v. Sodha, the online brokerage rode the GameStop meme-stock frenzy and Dogecoin boom into its July 2021 IPO. Robinhood warned that trading might decline and provided an estimate of second-quarter revenue, but investors say it withheld information showing that trading and other business metrics were already declining. A district court dismissed their claims, but a divided panel of the 9th Circuit revived them. Robinhood’s petition argues that merely omitting material information cannot create liability unless the omission makes an affirmative statement misleading or violates a specific disclosure requirement. The investors respond that the company’s disclosures presented a misleading picture of its performance. The U.S. solicitor general, invited to weigh in, recommends granting review on the Section 11 misleading-omissions question, but not on a separate question concerning disclosures of known trends under Item 303 of Regulation S-K (which the agency is reviewing).

In ON24, Inc. v. Leadersel Innotech ESG, a webinar-platform provider prospered as businesses moved online during the pandemic. Investors allege that the company knew before the IPO that many pandemic-era customers did not intend to renew. An unpublished 9th Circuit memorandum revived the suit. ON24 asks whether describing an unmaterialized risk as hypothetical is misleading, alleging a split with the U.S. Courts of Appeals for the 1st, 3rd and 10th Circuits, and raises two questions that overlap with Robinhood’s. ON24 argues that the court improperly required it to predict future customer cancellations; the investors respond that “the warned-of risk was already materializing.” ON24 also asks the justices either to grant its petition or hold it for Robinhood. Leadersel Innotech answers that the 9th Circuit decision is non-precedential and that the panel found the risk had already begun to materialize.

With the solicitor general supporting review in Robinhood, a grant there looks plausible. Whether ON24 gets invited along is less certain. It seems a likelier hold.

Afghanistan’s frozen billions

It’s not every week that the Taliban is a respondent in the Supreme Court. That said, it has not responded, leaving an Afghan diplomat filing an amicus brief to oppose review – not on the Taliban’s behalf, but on behalf of the Afghan people.

When the Taliban retook Kabul in August 2021, the Treasury Department blocked billions of dollars that Da Afghanistan Bank held at the Federal Reserve Bank of New York. Victims holding judgments against the Taliban sought to execute on the funds under Section 201(a) of the Terrorism Risk Insurance Act, which makes the blocked assets of a terrorist party and its “agency or instrumentality” subject to execution.

A divided panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the denial of turnover. It held that an entity’s status as a terrorist organization’s instrumentality must be determined when its assets were blocked, before the Taliban installed its officials at the bank. Separately, the panel rejected other plaintiffs’ attempt at prejudgment attachment, holding that Da Afghanistan Bank enjoys sovereign immunity as the central bank of Afghanistan, which the executive continues to recognize as a foreign state. Judge Richard Sullivan dissented.

In Havlish v. The Taliban, judgment holders challenge the blocking-date rule, alleging a conflict between the 2nd Circuit and the U.S. Courts of Appeals for the 9th and 11th Circuits. They are backed by Iowa and 30 other states.

In Owens v. The Taliban, plaintiffs who lacked judgments when the district court ruled say the 2nd Circuit is the first court of appeals to require courts to defer to the executive on “foreign state” status, and thus “breaks with th[e] consensus” positions of the U.S. Courts of Appeals for the 1st, 3rd, and 6th Circuits. Ashton v. The Taliban joins Owens in arguing that courts should not defer to the executive branch in determining whether an entity is a “foreign state” entitled to sovereign immunity, and seeks a GVR in light of this year’s decision in Exxon Mobil Corp. v. Corporación CIMEX, S.A.

As noted, no respondent has appeared. The only opposition is an amicus brief jointly filed in the three cases by Naseer Faiq, chargé d’affaires of Afghanistan’s mission to the United Nations, who says no one is currently authorized to appear for Afghanistan in U.S. courts. He argues that the facts are unlikely to recur, that there is no circuit split, and that the immunity issue affects only the petitioners’ priority among creditors. The Havlish petitioners have sought leave to respond, arguing that the legal question is likely to recur in terrorism litigation and does indeed implicate a circuit split.

At the very least, the court will need more time to figure out what to do when the respondent seems unwilling to appear to defend the cases.

Location, location, regulation

How many places can a state declare off-limits to firearms before the Second Amendment right to carry in public becomes largely theoretical? That’s the question in Novotny v. Moore, a challenge to Maryland’s extensive restrictions on carrying firearms in “sensitive places.”

Maryland prohibits licensed gun owners from carrying firearms in numerous locations, including public transportation, parks and forests, healthcare facilities, museums, stadiums, casinos, public demonstrations, and establishments serving alcohol. I thought this was America! A divided panel of the U.S. Court of Appeals for the 4th Circuit upheld those restrictions, finding historical support for them under the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. Judge G. Steven Agee dissented as to many of the restrictions, warning that the majority had stretched the sensitive-places exception too far. The panel separately struck down Maryland’s presumptive ban on carrying firearms on private property open to the public.(After this year’s decision in Wolford v. Lopez, which struck down Hawaii’s similar private-property rule, Maryland dropped its own cert petition seeking review of that ruling.)

The gun owners’ petition argues that historical restrictions on carrying firearms in sensitive places were generally limited to locations where the government provides security, not ordinary places where people gather. Maryland responds that historical regulations support restrictions at crowded places and locations serving vulnerable populations, and contends that review is unnecessary because the lower courts largely agree on the governing principles.

Invoking Wolford, the petitioners ask the justices to grant review or at least send the case back for reconsideration. Whether the court is ready to take on the sensitive-places doctrine so soon after Wolford remains to be seen. But reconsideration under Wolford seems like a real possibility.

A fine line on phone locations

In Sprint Corp. v. Federal Communications Commission, the Commission fined Sprint $12.2 million and T-Mobile $80.1 million for failing to adequately safeguard customers’ location information shared with third-party aggregators, including by continuing to disclose the information after learning of significant security vulnerabilities. The U.S. Court of Appeals for the D.C. Circuit upheld the penalties, concluding that information about a cellphone’s location – even when no call is underway – qualifies as confidential “customer proprietary network information” under the Communications Act.

The carriers’ petition argues that the statute protects only call-location information, not all device-location data. They also contend that the FCC circumvented a statutory penalty cap by treating separate relationships with third-party companies as multiple “continuing violations,” and that the D.C. Circuit improperly deferred to the agency’s interpretation despite Loper Bright Enterprises v. Raimondo. But the carriers’ principal request is narrower: They ask the justices to send the case back in light of this year’s decision in FCC v. AT&T, which held that an FCC forfeiture order does not itself compel payment. That opinion, the carriers say, rested on a key government concession: A company can refuse to pay and contest the penalty in a subsequent enforcement proceeding with a jury. Sprint and T-Mobile say they paid under protest because the FCC’s orders demanded payment and existing precedent left them little choice. The government responds that the carriers always had the option not to pay, that they failed to preserve their claim of being misled, and that AT&T provides no reason for reconsideration. The carriers disagree.

A remand remains possible, although the government notes that the court rejected a comparable request from Verizon. For now, Sprint and T-Mobile are hoping the justices will take their call.

When hot pursuit goes cold

How long can a “hot pursuit” stay hot after police lose sight of the suspect? That’s the question in City of North Las Vegas v. Jones, a case arising from a search for a suspected domestic abuser that ended with police entering a stranger’s backyard and shooting two dogs. The suspect was never found.

After officers saw a man flee over a backyard wall, the officers stated that they established a neighborhood perimeter rather than pursuing him on foot. A K-9 officer arrived about 18 minutes later, and during the ensuing search, his police dog alerted them toward a walled backyard. An officer climbed in without a warrant. Three pit bulls emerged, two of which attacked the police dog and were shot. The dogs’ owners, Genoa Jones and Cornell Tinsley, sued. The district court granted the officers qualified immunity, but the U.S. Court of Appeals for the 9th Circuit reversed on the warrantless-entry claim, holding that the officers had not been in immediate and continuous pursuit and that circuit precedent clearly established the search’s illegality. It left intact qualified immunity for shooting the dogs. Eight judges dissented from the denial of rehearing en banc.

The city’s petition argues that the officers never abandoned the pursuit: They say they established a perimeter and used a police dog to locate a potentially dangerous suspect. Even if the search was unlawful, the city argues, no sufficiently specific precedent clearly established that fact. It also asks the justices to hold that only Supreme Court decisions – not lower-court precedent – can clearly establish law for qualified-immunity purposes. The homeowners respond that the officers never actually established a perimeter or chased the suspect and instead just conducted a neighborhood-wide search without knowing his whereabouts.

The eight dissenting judges may help keep the petition warm. But the court closely reviews many petitions in cases where police are denied qualified immunity, and unless the error was clear enough to warrant summary reversal, the justices may let this pursuit go cold – perhaps with a dissent from denial of cert.

The court has enough to chew on that it seems likely to take a while to finish processing this week’s new offerings. As for me, I’ll be watching Monday’s orders to find out how much of this I get to reuse.

New Relists

GEO Group, Inc. v. Nwauzor, 25-828

Issue: Whether the supremacy clause allows a state to reclassify federal immigration detainees participating in a federal work program as employees and thereby impose its state minimum-wage law just because a private contractor provides detention services at the federal facility where the detainees are housed.

(Relisted after the Nov. 6 conference.)

Robinhood Markets, Inc. v. Sodha, 25-944

Issues: (1) Whether an issuer violates Section 11(a) of the Securities Act of 1933’s misleading-omissions prong by failing to disclose interim financial data that investors may consider material, without an inquiry into whether the omission rendered any affirmative statement misleading; and (2) whether an issuer violates Item 303 – and thus Section 11(a)’s required-statements prong – by failing to disclose and quantify interim financial data before quarterly reporting deadlines.

(Relisted after the Nov. 6 conference.)

Novotny v. Moore, 25-1324

Issue: Whether Maryland’s numerous prohibitions on carrying firearms in many places frequented by the general public violate the Second and 14th Amendments.

(Relisted after the Nov. 6 conference.)

City of North Las Vegas, Nevada v. Jones, 25-1355

Issues: (1) Whether officers’ warrantless search of a backyard in close proximity to the domestic violence victim’s residence was a lawful “hot pursuit” when the suspect’s trail was temporarily lost within the perimeter for approximately 18 minutes but recovered through immediate and continuous police efforts; (2) whether, even if the search did not qualify as a “hot pursuit,” the officers were entitled to qualified immunity because no “clearly established law” was violated; and (3) whether, in the interest of avoiding the perpetual flood of federal court qualified immunity litigation, the court should decide that clearly established law means only the decisions of the Supreme Court, and not lower court decisions, which fail to provide police departments with meaningful guidance because they are highly fact-determinative and subject to numerous differing and often contradictory judicial interpretations.

(Relisted after the Nov. 6 conference.)

ON24, Inc. v. Leadersel Innotech ESG, 25-1376

Issues: (1) Whether an issuer violates Section 11(a) of the Securities Act of 1933’s misleading-omissions prong by describing unmaterialized risks as hypothetical; (2) whether an issuer violates Section 11(a)’s misleading-omissions prong whenever it omits information related to a disclosed fact regardless of whether the omission renders an affirmative statement misleading; and (3) whether an issuer violates Item 303 of Regulation S-K – and thus the prong of Section 11(a) prohibiting the omission of required statements – by failing to disclose immaterial facts as “known trends or uncertainties” that are reasonably likely to have a material impact on financial results.

(Relisted after the Nov. 6 conference.)

Sprint Corp. v. Federal Communications Commission, 25-1422

Issues: (1) Whether this court should grant, vacate, and remand in light of FCC v. AT&T, Inc. and the government’s concessions in that case; (2) whether “location” customer proprietary network information under 47 U.S.C. § 222 refers only to call-location information, not other formation about the location of a mobile device; and (3) whether the number of “continuing violations” arising from a single failure to act under 47 U.S.C. § 503(b) is a legal question for courts to decide, without deferring to the Federal Communications Commission’s conclusion.

(Relisted after the Nov. 6 conference.)

GEO Group, Inc. v. Ferguson, 26-71

Issue: Whether the supremacy clause permits a state to enact a law micromanaging the details of how a federal contractor must provide services at a federal detention facility, while exempting the state’s own detention facilities from all those requirements.

(Relisted after the Nov. 6 conference.)

Mullin v. Refugee and Immigrant Center for Education and Legal Services, 26-239

Issues: (1) Whether Presidential Proclamation No. 10888 and its implementing guidance – which suspended the entry of certain aliens and precluded their access to statutory provisions that would enable their continued presence in the country, including asylum – are lawful; (2) whether 8 U.S.C. § 1252(f)(1) bars the classwide relief entered by the district court; and (3) whether the class definition comports with Article III and Rule 23 of the Federal Rules of Civil Procedure.

(Relisted after the Nov. 6 conference.)

Havlish v. The Taliban, 26-292

Issue: Whether, under the Terrorism Risk Insurance Act, a plaintiff’s right to execute on blocked assets depends on whether the assets’ owner was a terrorist party or its agency or instrumentality at the time the assets were blocked.

(Relisted after the Nov. 6 conference.)

Ashton v. The Taliban, 26-293

Issue: Whether, in light of the court’s intervening decision in Exxon Mobil Corp. v. Corporación CIMEX, S.A., which confirms that a court – not the Executive Branch – must resolve through ordinary statutory construction whether an entity is a “foreign state” entitled to sovereign immunity, the judgment below should be vacated and remanded so that the Second Circuit must reconsider, under the correct framework, whether the Taliban and its instrumentalities are entitled to immunity under the Foreign Sovereign Immunities Act.

(Relisted after the Nov. 6 conference.)

Owens v. The Taliban, 26-294

Issue: Whether the Foreign Sovereign Immunities Act requires courts to independently interpret its provisions, or whether a court must defer to State Department websites and Department of Justice litigation filings in determining whether an entity is entitled to sovereign immunity under the FSIA.

(Relisted after the Nov. 6 conference.)

Returning Relists

Khatibi v. Yip, 25-1240

Issue: Whether private instruction in courses required for state licensure constitutes a government speech.

(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)

Moore v. Romero, 25-1295

Issues: (1) Whether, in a use-of-force case which involves multiple instances of force, Barnes v. Felix requires that each use-of-force be analyzed progressively from before the first instance of force used through the last instance of force used, considering the information known to the officer, the suspect’s prior actions (including any compliance, non-compliance, resistance, and reaching or grabbing for a weapon), and the suspect’s reactions to those prior use(s)-of-force; and (2) whether, when analyzing a defendant law enforcement officer’s motion brought under Rule 12(b)(6) or 12(c), in a use-of-force case where body camera video clearly depicts the entire lead-up to and application of force by a law enforcement officer, whether the lower courts may analyze the clearly established prong of qualified immunity at a more general, plaintiff-friendly, level than at the motion for summary judgment stage of litigation.

(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)

City of Bossier City v. Hershey, 25-1323

Issues: (1) Whether a plaintiff can plead single-incident municipal liability without alleging a violation of a clearly established constitutional right; and (2) whether a plaintiff can plead single-incident municipal liability without alleging a complete lack of training on the constitutional right in question.

(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)

Hershey v. City of Bossier City, 25-1389

Issue: Whether the principles of Hope v. Pelzer are limited to Eighth Amendment claims or extend to free speech and free exercise clause claims such that petitioner’s constitutional claims should not be barred by qualified immunity.

(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)

StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology, 25-1404

Issues: (1) Whether the harassers’ subjective discriminatory intent is an element of a hostile environment claim under Title VI; and (2) whether the First Amendment bars a plaintiff from pleading a Title VI hostile environment claim based on “protected speech.”

(Relisted after the Sept. 28, Oct. 9, Oct. 16, and Nov. 6 conferences.)

Bauer v. Marks, 25-1413

Issue: Whether the law clearly established that the officer’s use of a less-lethal projectile, under the totality of the circumstances, constituted an unreasonable use of force in violation of the Fourth Amendment.

(Relisted after the Oct. 9, Oct. 16, and Nov. 6 conferences.)

Brown v. United States, 25-1342

Issue: Whether an automobile is per se an instrumentality of interstate commerce, which would make a federal offense of every kidnapping involving an automobile under 18 U.S.C. § 1201(a)(1).

(Relisted after the Oct. 16 and Nov. 6 conferences.)

Allen v. Caster, 26-116

Issues:(1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.

(Relisted after the Oct. 16 and Nov. 6 conferences.)

Allen v. Milligan, 26-117

Issues: (1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.

(Relisted after the Oct. 16 and Nov. 6 conferences.)

Allen v. Singleton, 26-118

Issues: (1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.

(Relisted after the Oct. 16 and Nov. 6 conferences.)

At the Court

The Trump administration has brought the battle over construction of a new White House ballroom back to the Supreme Court. In a petition for review filed last week but made public on Monday, U.S. Solicitor General D. John Sauer told the justices that the project “should be permitted to move forward outside the shadow of judicial superintendence.” For more on the petition, see the On Site section below.

On Tuesday, the justices heard argument in Department of Labor v. Sun Valley Orchards, LLC, on whether the Constitution allows the executive branch – as opposed to the courts – to adjudicate an employer’s obligation to comply with employment agreements concerning temporary immigrant workers.

On Friday, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from Friday’s conference are expected on Monday at 9:30 a.m. EST.

***

Justice Samuel A. Alito Jr.’s new book on the Constitution, the Supreme Court, and our nation catapults him into the same category once held by Justice Antonin Scalia as a leading public intellectual on the Supreme Court. In his book, Justice Alito shares his thoughts about such subjects as originalism, textualism in statutory interpretation, the Catholic intellectual tradition, the role of judges in the United States and increasingly around the world, religious liberty in the United States, threats to the Constitution, and much more. Although there is a great deal else to be said, several things leapt out at me.

First, it is clear that while Justice Alito is deeply attuned to precedent and Supreme Court case law, this will not get in the way of his originalism and what he sees as bad law which must be overturned. Hence his vote to overrule Roe v. Wade after 49 years, Humphrey’s Executor after 91 years, or even a 128-year-old, long settled Supreme Court precedent like United States v. Wong Kim Ark, which would have ended birthright citizenship. (In saying this, I take no position myself on the birthright citizenship case – a debate I stayed out of.)

But Justice Alito is not simply an originalist. He also rejects the view of Professor James Bradley Thayer, and of Justices Oliver Wendell Holmes, Felix Frankfurter, William H. Rehnquist, and even at times of Justice Scalia that the Supreme Court should be judicially restrained and defer blindly to the political process. Justice Alito recognizes that judicial restraint where the Supreme Court has wrongly deferred to the political process is unconstitutional under Article III and has produced tragic results in cases like Plessy v. Ferguson, in which the court ratified Jim Crow race discrimination by the political branches of the government, or Korematsu v. United States, in which the court ratified President Franklin D. Roosevelt’s internment of over 100,000 innocent Japanese American citizens. In those cases the Supreme Court erred by not enforcing the Constitution. Yet at other times it has erred by being judicially activist as in Dred Scott v. Sanford or Lochner v. New York or Roe v. Wade. As Justice Alito teaches us, the Supreme Court should be neither judicially activist nor judicially restrained. It should uphold constitutional laws and strike down unconstitutional laws. This is what the rule of law is all about.

Justice Alito is equally and rightly skeptical of the notion that judges should be Dworkinian natural rights theorists, progressive constitutionalists like Chief Justice Earl Warren, or implementers of Catholic natural law as is argued by Harvard Law School Professor Adrian Vermeule. Indeed, Justice Alito devotes a whole chapter of his book to rejecting the idea that Supreme Court justices should implement natural law. This is because Justice Alito is profoundly aware that the American people during the 237 years from 1789 to 2026 have more knowledge and are thus wiser than is one individual Supreme Court, Supreme Court justice, or academic theorist. Although he does not say this outright, Alito appears to believe that originalist judges should be guided by the four cardinal virtues: 1) practical wisdom; 2) justice; 3) courage; and 4) temperance.

At the same time, Justice Alito is very much a Burkean. What does this mean? It calls to mind one of my favorite works of political philosophy, Friedrich Hayek’s volumes 1, 2, and 3 of Law, Legislation, and Liberty. In that masterpiece, Hayek identifies two forms of social order: planned systems of order like a firm or a military platoon, and spontaneous systems of social order like a language, the free market, or a culture of following the rule of law. No one has ever successfully planned a language, but languages have rules of grammar and a fixed meaning of words, and so a language forms what Hayek calls a spontaneous system of social order.

The Constitution and its amendments are a planned system of order, the words of which are so short and abstract that they have given rise to spontaneous systems of order around them. Thus, the freedom of speech and of the press protects thoughts in a private diary or a letter to a friend even though they are not vocal utterances or made with a printing press. Those words also protect freedom of expression in new technologies like movies, radio, television, or the internet, and they even protect expressive conduct that is not vocal at all like burning the American flag contemptuously at a protest rally.

The advantage of a spontaneous system of order like a language, the free market, or constitutional caselaw is that it harnesses the wisdom of many individuals who are always wiser than is one judge or academic theorist. But the countervailing advantage of the Constitution being a planned system of order is that if constitutional case law drifts too far away from the wonderful Novus Ordo Seclorum plan of the framers, the Supreme Court may overrule such caselaw – even after a century of it having been decided. The bottom line is that in figuring out when to follow the planned order of the Constitution or the spontaneous order of constitutional case law and precedents, a justice must further draw on the four cardinal virtues mentioned earlier – practical wisdom, justice, courage, and temperance.

More controversially, Alito argues that one factor in a good constitutional or statutory interpretation is that it produces good consequences. This is contrary to what Justice Scalia used to tell me when I was his law clerk, which is that if a text he is interpreting coming in is garbage, then the decision going out will also be garbage. Justice Scalia insisted it was not his job to make the law better. This differed from the approach which Judge Robert H. Bork, who I clerked for on the D.C. Circuit, followed. Judge Bork would not rewrite the Constitution or statutes to produce good results, but if there were two equally plausible readings of legal language, Judge Bork, like Justice Alito, would go with the one that produced the best outcomes in his view. I would do the same thing.

Nevertheless, in discussing Supreme Court precedents that he thinks were wrongly decided, Justice Alito can sometimes be too timid (in my opinion) in his criticisms. Perhaps that is because as a Supreme Court justice, he feels constrained in calling for the overruling of clearly incorrect precedents. For example, he criticizes Justice Scalia’s opinion in 2012’s United States v. Jones, in which the court held evidence should be suppressed which was obtained from illegally placing a GPS tracking device on a drug dealer’s car. But in his own dissent in that case Justice Alito failed to call for overruling the exclusionary rule cases on which that decision was based, even though his former boss, Attorney General Ed Meese, had publicly called for the overruling of the exclusionary rule in the 1980’s, and even though Congress passed a federal statute overruling it in the context of Miranda v. Arizona in 1968.

Justice Alito also complains rightly about the banning of religion from the public square, but he concedes in his book that as a justice he had failed to join a Scalia dissent, which called for the complete overruling of Flast v. Cohen, an absurd standing precedent of the Warren court which gave taxpayer standing to ACLU litigants who were offended by local government Christmas and Hannukah displays or displays of the Ten Commandments. And Justice Alito quite rightly criticizes Justice Scalia’s decision weakening the free exercise clause case in Employment Division v. Smith, but he does not call for overruling it. He should do so with pride.

The argument for originalism in constitutional interpretation is the same as the argument Justice Alito makes for textualism in statutory interpretation. Legal texts, be they constitutions, statutes, contracts, wills, or Supreme Court opinions should be given their original public meaning. A judge who interpreted a Supreme Court opinion or a contract according to natural law would be violating the fundamental norms of our legal system. Originalist justices can and should follow non-originalist precedents where not doing so would be disruptive to our legal system. I thus agree with Justice Alito that the Supreme Court should follow, for example, its dormant commerce clause precedents.

There is one final area where I and Justice Alito respectfully disagree. Readers of this site, and of Justice Alito’s book, know that we have different views on same-sex marriage and Obergefell v. Hodges. In his book, Justice Alito responds to me by pointing out, among other things, that same-sex marriage was unheard of for 40,000 years of human history.

I will only add here that 250 years ago, on July 4, 1776, nearly every country in the world had slavery, feudalism was widely practiced, there was a caste system in India, racism and religious persecutions were the norm, women’s rights were suppressed, and the public was adamantly opposed to LGTBQ+ rights. Gordon Wood, the famous historian of the American Founding argued in his Pulitzer Prize winning book, The Radicalism of the American Revolution that July 4, 1776 was the most important day in all of human history (other than the days of the birth and death of Jesus) because the Declaration of Independence launched a “New Order of the Ages,” which helped bring millennia of human inequality to an end in Western democracies.

It is true that same-sex civil marriage is a very new idea, but so too, in the historical scale of things, is the end or attempted end of slavery, feudalism, the Hindu caste system, racism, religious persecution, and sexism. I think the sudden rise of same-sex marriage stems from the same American Revolution that began 250 years ago on July 4, 1776.

In any event, Justice Alito is to be commended for writing an exceptionally intellectual and provocative new book. The book fills the shoes of the late Justice Scalia, and I would recommend it to everyone – whether they agree with Justice Alito’s jurisprudence or not.

The inmate, Kekai Watanabe, was seriously injured in a gang-related fight while he was in a federal detention center in Hawaii. He says that he told Francis Nielsen, a paramedic who treated him, that his pain was severe, but he received only over-the-counter pain medication and was put in solitary detention, where he remained for more than two months without seeing a specialist or going to a hospital. When Watanabe received an X-ray seven months later, it revealed that he had a fractured coccyx and that chips from the bone had penetrated the soft tissue in the area. He says that he continues to be in “tremendous pain.”

Watanabe filed a lawsuit in federal court in Honolulu, alleging that Nielsen violated his rights under the Eighth Amendment to be free of cruel and unusual punishment by being deliberately indifferent to his serious medical needs. He relied on two Supreme Court cases: the court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, holding that a violation of an individual’s constitutional rights by a federal official can create a federal claim for damages; and its 1980 decision in Carlson v. Green, in which the court held that the estate of an inmate who died after having an asthma attack could bring a Bivens claim when prison officials had failed to provide adequate medical care for eight hours after the attack and did not send him to the hospital during that time.

The district court dismissed Watanabe’s claim. It held that Carlson did not apply because his claim was not sufficiently similar to the facts of that case.

The U.S. Court of Appeals for the 9th Circuit reversed. It acknowledged that the Supreme Court “has cautioned against extending Bivens remedies to new contexts,” but explained that, in its view, “Watanabe’s claim is identical to Carlson in all meaningful respects” and therefore can proceed. A deeply divided court of appeals declined to rehear the case.

Representing Nielsen, Lucas Walker told the justices on Monday that the Supreme Court “has repeatedly explained that Bivens claims are disfavored, that they strain the separation of powers, and that they cannot proceed if there is any reason to think that Congress might be better suited to weigh the costs and benefits of a damages remedy.”

But Watanabe’s “claim ... also fails under a straightforward application of this Court’s Bivens framework,” Walker continued. “There are at least three” “meaningful difference[s] between his case and Carlson.” First, Watanabe had other options besides damages – such as seeking “administrative and injunctive relief.” Second, unlike the inmate in Carlson, Watanabe did not die, which “Congress could see [as] a meaningful difference.” Third and finally, there are “special factors” at play in Watanabe’s case that were not at play in Carlson, such as the Administrative Remedy Program, a grievance process created by the Bureau of Prisons in 1979, and federal laws enacted after the decision, such as the Prison Litigation Reform Act, a 1996 law that requires prisoners to use all available internal prison appeals like the ARP before going to court.

Vivek Suri, an assistant to the U.S. solicitor general who argued on behalf of the federal government, told the justices that, in the view of the United States, there are “three ways in which this Court could resolve the case.” “First, it could apply its existing standards and recognize that Carlson is now obsolete. Second, it could ... explicitly overrule Carlson. And, third, it could distinguish Carlson on its facts.” He “respectfully urge[d]” the court to choose one of the first two options, “either of which would abrogate Carlson, fully resolve the” divisions among the courts of appeals “that it has created, and end the severe practical problems that it creates for prison administration.”

Representing Watanabe, Joshua Wesneski reiterated that “the Court’s consistent message for Bivens and Carlson over the past decade” has been “[t]his far and no further.” “‘No further,’ he said, “means we should not extend those precedents. But ‘this far’ means also that Carlson remains settled law within its core context and should not be reduced to a null set. We ask only that the Court adhere to that approach.” “Indeed,” he suggested, “to overrule Carlson now would disregard Congress’s measured judgment in this area and eliminate a crucial bulwark against the encroachment on the constitutional rights of some of society’s most vulnerable members.”

Neither Chief Justice John Roberts nor Justice Brett Kavanaugh seemed receptive to Walker’s suggestion that the court should go ahead and overrule both Bivens and Carlson.

Kavanaugh asked Walker how the court should handle the “fact ... that Congress has had 55 years since Bivens and 46 years since Carlson to do so and has not done so?” “It seems,” Kavanaugh continued, “like Congress, in fact, has left Bivens and Carlson where they stood ... and Congress has operated against that backdrop.”

Walker suggested that the Supreme Court “has not hesitated to overrule past decisions, especially those where the courts had overstepped the proper judicial role.”

In response to Walker’s assertion that overruling Bivens would “clear up the confusion and hand the accountability for all of this back to Congress, where it belongs,” Kavanaugh later asked whether “another way to provide clarity [would be] to simply say that courts should apply Bivens and Carlson but not extend them?” He compared such a scenario to what the Supreme Court has done in other areas of the law, such as with the Alien Tort Statute, “where we’ve had results or decisions under a methodology we wouldn’t use anymore, but we have not overruled the original three” causes of action under “the ATS, for example. We just haven’t extended them.”

Suri addressed this point during his time at the lectern, telling Kavanaugh that “[t]he problem ... as I see it ... is the Court’s decision” holding that “the PLRA itself gives rise to a new context,” as does “the availability of injunctive relief.” “So,” he continued, “if you’re going to honor that precedent, then this is a new context,” which would mean that “there are no viable Carlson claims anymore.”

For his part, Roberts noted that the federal government had “expressly” not asked the court to overrule Bivens, “and, of course, they have broad experience in this context. And I wonder,” he asked Walker, “if you have any insight into why or at least why shouldn’t we, on that question, defer to their expertise and experience on that question?”

Walker responded that “I think the answer is that this has been an area wrought with confusion where the lower courts have really called out for guidance.”

Roberts appeared unconvinced. “[O]n the other hand,” he countered, “it could be viewed as a cautious, incremental approach to such a fundamental question” to leave Bivens intact for now.

Several justices focused on whether, if a Carlson claim was not available, an inmate in Watanabe’s shoes would still have some remedy available to him. Justice Neil Gorsuch explored whether an inmate who was the victim of medical malpractice would still be able to obtain relief in a lawsuit against the United States (rather than the individual prison official) under Federal Tort Claims Act, a 1946 law that allows private citizens to sue the federal government for (among other things) injuries caused by a federal employee.

Gorsuch elicited from Suri that “[i]n almost all the cases that” he had “encountered, ... there is an FTCA claim brought in parallel” with the claim under Carlson – in part, Suri suggested, because the standard for prevailing is lower, qualified immunity does not apply, and “[y]ou have a defendant who’s able to pay, the United States.” Suri suggested that when an inmate does not bring both kinds of claims, it may be out of a desire to harass an individual prison official or because the inmates do not have lawyers and are instead representing themselves “and are confused about how to proceed. If this Court says there are no more Carlson claims,” he concluded, “then I think it’s more likely that they will bring FTCA claims in these cases.”

Justice Samuel Alito had a similar question, asking Suri “whether Bivens in this context provides anything ... of value that is not available based on other remedies.”

Suri responded that Carlson had rested on the idea that “the FTCA was insufficient” because it “does not provide for punitive damages.” In Bivens, he emphasized, the court faced a choice between “damages or nothing” for the plaintiff. But under the FTCA, he said, “you’re already getting damages.”

Wesneski pushed back on any suggestion that the FTCA, standing alone, would – as Kavanaugh put it – “provide some remedy in meritorious cases.” And there would be other potential problems as well, he posited: for example, he said, “we know the plaintiff in Carlson v. Green would not have had a cause of action under the FTCA” under Indiana law.

Justice Amy Coney Barrett also expressed concern about what relief an inmate in a situation like Watanabe’s would be able to obtain. She first pressed Walker on the question of whether an inmate could obtain a court order instructing a prison official to do (or to refrain from doing) something, even if he could not obtain money damages for the official’s past conduct. “I want to make sure,” she said to Walker, “that, in your position, there’s no doubt that someone in a prisoner’s position like this would be able to get injunctive relief against a federal officer.”

And she later returned to a similar topic, asking Walker to “walk me through what happens in a case where a prisoner dies as a result of medical negligence and let’s say really horrific medical negligence. What recourse,” she enquired, “does that prisoner have? Is it the FTCA?”

Walker assured Barrett that, even if Carlson were overruled, claims like the one she described would generally be allowed to go forward.

Justices Sonia Sotomayor and Ketanji Brown Jackson appeared to be the most likely to side with Watanabe. Sotomayor contended that, “in the Westfall Act, Congress looked at Bivens and explicitly reserved those constitutional claims the Court had recognized” – specifically, “Bivens itself for unlawful entry ... without probable cause into private citizens’ homes when there was malfeasance in doing so, and in Carlson itself, which was a ... medical malpractice claim.”

Walker resisted Sotomayor’s characterization, telling Sotomayor that, “respectfully, I don’t think the Court has ever gone so far as to say that the Westfall Act ratified Bivens or Carlson. But what the Court has said is that it does not provide any reason to extend those cases further.”

Jackson seemed to regard Watanabe’s case as, “with respect to all major indicia of sameness,” identical to Carlson. “We have the same kind of alleged violation as in Carlson,” she told Walker. “We have the same constitutional right brought under the same legal framework by the same kind of defendant who’s housed in the same kind of federal institution.”

By contrast, Justice Elena Kagan suggested that, at the very least, Watanabe’s case involves “factual differences.” In addition to the fact that the inmate in Carlson died, she noted that “there was a view that the prison officials had actively contributed to the injury, and ... that the prison officials knew exactly what was happening while it was happening.” “[A] different way of saying the same thing,” she added a few minutes later, “is that this looks like a pretty standard medical malpractice case, bad but standard, where the factual circumstances in Carlson look like something a good deal more than that.”

A decision in the case is expected by late June or early July.

Construction on the project began in October of last year with the demolition of the East Wing. In December, the National Trust for Historic Preservation – a private nonprofit that describes itself as having “led the movement to save America’s historic places” “[f]or more than 75 years” – filed a lawsuit in federal court, seeking to block the construction until the National Capital Planning Commission and the Commission of Fine Arts could review the plans for the construction; the NCPC could approve those plans; and Congress could authorize the construction.

To support its argument that it had a legal right to sue, known as standing, the trust submitted a declaration from Alison Hoagland, a member who lives in Washington, D.C., and said that she visits the area where the White House is located approximately once per month. Hoagland, who has “expertise in historic architecture,” claimed that the project caused “‘injuries’ to her ‘aesthetic, cultural, and historical interests’ because she finds the ‘scale,’ ‘height,’ and ‘massing’ of the government’s design distasteful.”

Senior U.S. District Judge Leon issued an order in late March that temporarily barred the construction of the ballroom above ground but allowed underground construction – of, for example, bomb shelters and bunkers – to move forward, along with any above-ground construction necessary for safety and security.

Before Leon’s ruling could go into effect, the U.S. Court of Appeals for the District of Columbia Circuit froze it to give that court time to consider the government’s appeal. In August, a divided three-judge panel of the D.C. Circuit upheld Leon’s ruling but delayed its effective date for 14 days to allow the federal government to go to the Supreme Court.

Writing for the majority, Judges Patricia Millett and Bradley Garcia emphasized that Congress, and only Congress, has the power “to regulate the construction and demolition of White House structures,” but it has not approved any money for the ballroom construction.

In her dissent, Judge Neomi Rao contended (among other things) that the trust did not have a legal right to bring a lawsuit, known as standing, to try to stop the ballroom construction.

Calling Leon’s ruling “extraordinary and unlawful,” the Trump administration came to the court on its interim docket on Aug. 13. Sauer asked the justices to temporarily pause Leon’s ruling, telling them that it would “halt the ongoing construction of the integrated military complex, including a totally secure ballroom space, at the East Wing of the White House, which is vitally required by national security.” He argued that the trust lacks standing to sue, because its claims rest on a member’s “dislike” for the new construction – which, it said, is not the kind of injury that would allow the lawsuit to go forward.

On Aug. 21, the day that Leon’s order was scheduled to go into effect, Chief Justice John Roberts issued an administrative stay – that is, an order that kept Leon’s order on hold (and permitted construction to continue) – to give the justices additional time to consider the government’s request.

By a vote of 5-4, the court on Aug. 31 granted the government’s application and continued the pause on Leon’s order. In an eight-page, unsigned opinion, the majority stressed that it was not deciding whether the project was legal. Instead, it said, the trust likely lacks standing to challenge the project at all. The harms that Hoagland alleges, the majority wrote, are not the kind of “concrete” and specific injuries required to bring a lawsuit. Moreover, the majority said, if Leon’s order were allowed to go into effect, the government would be permanently harmed – another key criterion in determining whether to grant emergency relief. Among other things, it noted, senior government officials “attest[] that constructing something approximating the height and mass of the intended above-ground ballroom is ‘crucial’ to the security of the below-ground military installation.”

Roberts dissented, in an opinion joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. In his view, the construction “is likely unlawful,” and the majority’s decision was “no victory for the separation of powers.” He contended that the trust did have standing to sue because “[a] historic preservationist such as Hoagland can be aesthetically injured in a concrete, particularized way by the transformation of a historic building that she frequently enjoys, just as,” based on prior court precedent, “an environmentalist can sustain a concrete, particularized aesthetic injury from the extinction of a particular animal or the transformation of a particular forest or river that he regularly enjoys.”

In its Nov. 5 petition, the Trump administration argued that “the East Wing renovation is a vital national-security effort taking place on the White House grounds with the President’s personal involvement,” and that it has “proceeded swiftly since construction began in October 2025, in keeping with the urgency of remedying the East Wing’s obsolete and vulnerable security infrastructure, all as this President faces an onslaught of assassination attempts.” Because Leon’s order blocked the project “at the behest of a single passerby who complains that she expects to dislike its ultimate design,” Sauer wrote, his “decision is demonstrably flawed.”

Sauer acknowledged that the court’s Aug. 31 ruling came on the interim docket and therefore “only involve[d] a preliminary look at the merits and equities” of the dispute. But, he continued, in this case “[t]here is nothing further or new that this Court needs to decide after its” earlier opinion “in order to answer the question presented” by the government’s new filing – specifically, whether Leon was wrong to block “the ongoing renovation of the East Wing of the White House.” This is especially true, Sauer suggested, given the court made its Aug. 31 decision “after extensive briefing, and issue[d] detailed majority and dissenting opinions addressing” the issues in the case.

Sauer urged the court to summarily reverse Leon’s decision – that is, to reverse it without additional briefing or oral argument – or, at a minimum, grant review and hear oral arguments.

The trust’s response to the government’s petition is currently due on Dec. 7.

The dispute involves the 1947 Natural Gas Act’s treatment of interstate natural-gas pipelines. When the federal government approves such a pipeline, the Natural Gas Act allows it to acquire the land in which to build the pipeline or leave that to the gas company. In either case, if the landowner does not agree, a suit exercising the federal government’s right of eminent domain can force a transfer of the land for a “necessary right-of-way,” so long as the landowner receives the “just compensation” that the Fifth Amendment requires when property is “taken for public use.”

The landowners here argue, with some support in the lower courts, that if the pipeline company rather than the United States condemns the land, the pipeline company should be bound by state-law rules that require more compensation than the federal Constitution. In particular, North Dakota law well might require the company to pay the attorneys’ fees of the landowners.

The justices, though, were having none of it. The air was redolent with skepticism from the moment Robert McNamara rose to press the landowners’ view. Justice Clarence Thomas started off by asking – doubtfully – whether “if the U.S. delegates its power … of eminent domain, you’re saying that it brings with it state law trappings of just compensation?” Chief Justice John Roberts quickly interjected that “it seems to me it’s just a more efficient process to have a private developer get the land under the same terms as the federal government without having to pay the attorneys’ fees that the state wants to insist on.” When McNamara stuck to his position, the chief justice eventually concluded the discussion by commenting: “I don’t understand why this isn’t an easy case.”

It seemed for a while that several of the justices would offer a slightly different reason to reject McNamara’s argument, with Justice Sonia Sotomayor coming in quickly to press the idea that “you’re trying to separate the right to eminent domain from the right to compensation, correct?” and then pointing to “a[n] 1893 case … in which we said, [it is] a settled principle of universal law that [they are] inseparably connected. … I don’t see how your separation of these principles honors that.”

For Ketanji Brown Jackson, the problem was McNamara’s assumption “that state law, with respect to just compensation is the default,” and that “it needed to be ousted by congressional expression.” But if that were true, she pointed out, why would Congress have thought it important, in a 1946 condemnation statute adopted just one year before the Natural Gas Act, to take the trouble explicitly to import state law? That statute’s treatment of the condemnation problem appears to contrast sharply with the treatment in the Natural Gas Act just one year later. As Jackson asked pointedly: “What is [that language] doing there if … silence [by Congress means that] state law applies?” Justices Brett Kavanaugh and Amy Coney Barrett pressed McNamara on the same point: they took it as self-evident that the 1946 statute importing state law suggested that a 1947 statute silent on the topic calls for the application of the baseline federal rule emphasized by Thomas and Roberts.

You have to expect it will be pretty hard to fashion a majority if Justice Thomas and the chief justice on one side see it as an “easy case” against you and Jackson and Sotomayor on the other side are predisposed to reject what you have to say. And nothing in the remainder of the argument suggested any reason to think otherwise. The presentations of Paul Hughes (for the pipeline company) and Zoe Jacoby (for the government) were filled for the most part with softball questions speculating about why lower courts might have found such an obvious question challenging.

I would not be at all surprised if this was one of the very first decisions from the November session. The share of simple unanimous statutory cases is not so high as it used to be, but this has all the earmarks of a straightforward unanimous affirmance.

At the Court

On Monday, the Supreme Court granted the Trump administration’s request to be allowed to resume construction of its border wall in the Big Bend region of southwestern Texas. Justice Ketanji Brown Jackson indicated, without explanation, that she would deny the request. Learn more about the dispute in the On Site section below.

Earlier on Monday, the justices heard arguments in two cases: Nielsen v. Watanabe, on whether and when federal officials can be held liable for constitutional violations; and Hoffmann v. WBI Energy Transmission, Inc., on whether the “just compensation” paid to land owners losing property to a pipeline project should be determined by referring to state law, which often provides for a higher payment than what the Constitution requires.

Also on Monday, the Supreme Court denied review in over 200 cases, including disputes involving the George Floyd protests in Minneapolis, actor Randy Quaid, and the sons of former baseball player Roberto Clemente. It also asked the United States solicitor general to share the government’s views on a case over whether U.S. terrorism victims may sue 21 pharmaceutical and medical-device companies under the Antiterrorism Act for allegedly aiding and abetting Iraqi terrorists. For more on Monday’s order list, see the On Site section.

Today, the justices will hear argument in Department of Labor v. Sun Valley Orchards, LLC, on whether the Constitution allows the executive branch – as opposed to the courts – to adjudicate an employer’s obligation to comply with employment agreements concerning temporary immigrant workers.

On Wednesday, the Supreme Court Building will be closed in recognition of Veterans Day.

The dispute began earlier this year, when then-Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, issued three waivers of various environmental and conservation laws to authorize construction of the wall in the Big Bend region, which includes parts of Big Bend National Park. Noem and Mullin relied on a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that gives the DHS secretary the power to “waive all legal requirements” necessary “to ensure expeditious construction” of border walls and roads. When they announced the waivers, Noem and Mullin indicated that the Big Bend area “is an area of high illegal entry” requiring additional walls and barriers.

A group of plaintiffs opposed to the construction – an environmental group, a local landowner who works as a river guide, and a group formed to preserve a church – went to federal court to challenge the waivers’ legality. On Oct. 2, U.S. District Judge Kathleen Cardone temporarily barred the Department of Homeland Security from continuing construction on the border wall in the Big Bend region “until and unless” the government complies with environmental and other applicable laws.

In a written opinion that she released on Oct. 14, Cardone reasoned that the challengers were likely to prevail on their claim that the DHS secretary did not have the authority to issue the waivers. She relied on the major questions doctrine – the idea that if Congress intends to give a federal agency the power to make decisions of vast economic or political significance, it must say so very clearly. In particular, she emphasized, the Big Bend region is not an area with a high number of illegal entries. To the contrary, she stated, although it “comprises over 25% of the U.S.-Mexico border,” it makes up only a tiny percentage (“between 0.3% and 2.2%”) of the migrants apprehended while crossing the border. Therefore, she wrote, “if the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire U.S.-Mexico border. If that were the case, Congress could have simply authorized construction ‘to deter illegal crossings.’” The major questions doctrine instructs courts to avoid “interpretations that would render limiting language meaningless,” Cardone concluded.

After Cardone declined to pause her ruling to give the government time to seek Supreme Court review, the Trump administration came to the Supreme Court, where it asked the justices not only to temporarily freeze Cardone’s order but also to grant review and summarily (that is, without additional briefing or oral argument) reverse it. U.S. Solicitor General D. John Sauer argued that Cardone lacked the power to consider the challengers’ claim based on the major questions doctrine because their complaint specifically alleged that the DHS secretary “lacked ‘clear congressional authorization’ … to issue the waivers” under the IIRIRA – which, he said, was a statutory claim that “Congress denied district courts” the authority “to entertain.” But in any event, Sauer continued, even if the DHS secretary’s power to issue waivers under IIRIRA “implicates a question of ‘vast economic and political significance,’ Congress did clearly authorize the Secretary both to build border barriers and to waive legal requirements in order to facilitate their expeditious construction.”

The challengers urged the justices to leave Cardone’s order in place. Eric Glitzenstein, a lawyer representing the plaintiffs, told the justices in a 40-page filing that if her order were paused or lifted, it would permit the Trump administration to “immediately resume blasting, bulldozing, road construction, and other border barrier-related construction across one of the most remote and ecologically and culturally significant landscapes in the United States.”

The challengers argued that the major questions doctrine applied to their claim. They emphasized that the DHS secretary’s “decision to waive myriad federal, state, local, and tribal laws across vast geography for the purpose of building border infrastructure, even through national and state parks where border crossings are miniscule, is a truly ‘extraordinary’ assertion of power.” Because Congress “did not clearly authorize the sweeping exercise of power asserted here,” they wrote, the government’s “actions therefore amount to a constitutional violation of the major questions doctrine.”

In Monday’s opinion, the justices denied the government’s request to summarily reverse Cardone’s ruling but granted its request to put it on hold. “The Government,” the court explained, “is exceedingly likely to prevail on its argument” that Cardone did not have the power to consider the challengers’ “so-called major-questions-doctrine claim.” That claim, the court emphasized, contends only “that the Secretary exceeded his statutory authority,” which is not a constitutional claim. This is true, the court continued, even if the challengers rely on the major-questions doctrine, because that doctrine is a rule used to interpret laws. “There is no such thing as a ‘constitutional’ major-questions claim.”

The other factors that courts normally consider in deciding whether to pause a lower court’s decision also point in the government’s favor, the justices said. For example, Cardone’s order “delays the Government’s construction of border barriers and roads in the Big Bend Sector” and, as a result, “impedes the Government from advancing its ‘compelling interests’ in border security and integrity.” Moreover, the government is suffering permanent harm from the costs – “nearly half a million dollars … per day” – that it is incurring while the construction is on hold, but which cannot be recovered. Finally, the court wrote, “[t]he Government’s interest … outweighs any aesthetic, recreational, and environmental harm alleged by” the challengers.

The court on Friday granted one petition for review from that conference, in a case involving whether and when a bankruptcy court can refuse to honor an agreement to arbitrate disputes.

The Minneapolis case was brought by a group of businesses located at the intersection where Floyd was killed. Following Floyd’s death, the city blocked the intersection “with concrete barricades,” which “prevented vehicles and pedestrians from accessing” the area, and withdrew police protection, according to the businesses’ petition for review. Those barricades remained in place “for over one year,” and led to significant economic losses for the businesses and a surge in violent crime, the petition said.

The businesses challenged the city’s actions in state court, alleging that it had violated the Constitution’s takings clause and similar protections in Minnesota’s constitution by interfering with their operations and failing to compensate them accordingly. However, a district court and the Minnesota Court of Appeals disagreed, and the Minnesota Supreme Court denied the businesses’ request for it to review the case.

In August, the businesses came to the Supreme Court, asking the justices to revive their case. On Monday, the Supreme Court declined to do so without comment.

The case involving family members of baseball legend Roberto Clemente also involved the takings clause. Clemente’s adult sons and companies associated with preserving Clemente’s legacy challenged Puerto Rico’s use of the baseball legend’s image on “license plates and tags,” an initiative that “generat[ed] 15 million dollars for Puerto Rico” but also fueled ill will against the family, “who Puerto Ricans thought were to blame for a fee levied on them during dire economic times,” according to the petition for review. Through their lawsuit, the Clementes aimed to block Puerto Rico from using their father’s image in the future and recover financial damages.

Earlier this year, the U.S. Court of Appeals for the 1st Circuit prevented the Clemente family’s takings clause claim from proceeding, emphasizing that it (along with the federal statute concerning trademark law) is “designed not to protect legacies but instead to remedy ... the taking of property for public use without just compensation.” In June, the Clementes asked the Supreme Court to take up the case and, among other things, clarify that the takings clause can apply in cases involving intangible property.

After considering the petition at three consecutive conferences, the justices on Monday denied review.

The petition for review involving Quaid addressed access to “restricted law-enforcement database material—including criminal history, warrant-status, mug-shot, and jail-record information” – but was perhaps most notable because it was written by Quaid and his wife, Evgenia Quaid. The Quaids contended that “an employee of the Santa Barbara Sheriff’s Department” sent such restricted material concerning the couple to an assistant district attorney, who then sent it to a private attorney, “without subpoena, discovery request, court order, or law-enforcement purpose.” This “unauthorized access” and information sharing violated privacy laws, according to the Quaids.

They came to the Supreme Court after losing before a federal district court and the U.S. Court of Appeals for the 9th Circuit, which held that the Quaids’ privacy claims “are barred by the litigation privilege,” a legal doctrine that prevents lawsuits over communication that occurs as part of a judicial proceeding. On Monday, the Supreme Court declined to take up the case.

In Monday’s order list, the justices also asked the United States solicitor general to share the government’s views on AstraZeneca UK Ltd. v. Atchley, a case on whether U.S. terrorism victims may sue 21 “of the world’s largest pharmaceutical and medical-device companies” under the Antiterrorism Act for allegedly aiding and abetting terrorists in Iraq.

Additionally, the justices sent Roybal v. Griffith, a transgender female inmate’s challenge to jail policies in El Paso County, Colorado, regarding the treatment of transgender inmates back to the lower court for reconsideration in light of West Virginia v. B.P.J. and United States v. Skrmetti.

In B.P.J., the court ruled in June that state laws barring transgender female athletes from participating on women’s and girls’ sports teams do not violate a federal civil rights law or the equal protection clause of the 14th Amendment. In Skrmetti, the court last year upheld a Tennessee law prohibiting some medical treatments for transgender minors, holding that it was not subject to heightened scrutiny under the equal protection clause.

Also on Monday, the justices granted the solicitor general’s request to participate in three oral arguments during the December argument session:

• Jouppi v. Alaska (Dec. 1): Whether the forfeiture of a $95,000 airplane – because a passenger was bringing beer into an Alaskan village where alcohol is prohibited – violates the Eighth Amendment’s ban on excessive fines.
• Viramontes v. Cook County (consolidated with Grant v. Higgins) (Dec. 2): Whether bans on AR-15s and other semiautomatic rifles violate the Second Amendment’s right to bear arms.
• International Partners for Ethical Care v. Ferguson (Dec. 7): Whether parents have a legal right to sue, known as standing, to challenge state laws that (among other things) allow runaway minors seeking gender-transition treatments to be referred for services without parental notice or consent.

By way of background, the basic constitutional issue regarding administrative adjudication is as follows. Article III of the Constitution vests the “judicial power of the United States” in the Supreme Court and lower federal courts. From the founding and onward, however, disputes that fall within the jurisdiction of Article III courts have been heard in tribunals belonging to the other federal branches, such as territorial courts, military tribunals, bankruptcy courts, magistrate judges, and most pertinent for current purposes, administrative tribunals – for instance, by administrative law judges.

Agency adjudication of, say, Social Security and veterans’ benefits claims is an integral part of the administrative state. It provides a streamlined way of handling these claims and avoids clogging up the Article III courts. Although there is usually a right to appeal administrative determinations at some point to Article III courts, these courts apply a deferential standard of review.

The question arises whether administrative adjudication is compatible with the judicial scheme laid out in Article III of the Constitution. This is a practically significant issue; agency dispute resolution has substantial effects on individuals and companies, who can face considerable fines or penalties. To what extent, then, is agency adjudication outside Article III courts justified? And what kinds of limitations should be placed on it?

In the past few decades, the Supreme Court has turned to “history and tradition” to answer these questions. History and tradition as methods of constitutional interpretation are likely most familiar from cases on hot-button social issues, such as Dobbs (holding that there was no “history and tradition” of a right to have an abortion) and Bruen (holding that there was no “history and tradition” of requiring certain types of licenses to carry firearms outside the home). But the court has also drawn on history and tradition to shape the scope of federal judicial power, in contexts ranging from Article III standing to equitable remedies. One such setting is the division of labor between Article III courts and agency adjudicative bodies.

History and tradition play a dual role in the law of adjudication outside Article III courts. This pattern was on display in the Supreme Court’s 2024 case Securities and Exchange Commission v. Jarkesy, which addressed the constitutionality of agency adjudication of certain claims involving securities fraud. First, tradition provides a justification for non-Article III (including agency) adjudication of a limited class of claims deemed to involve “public rights,” that is, matters which historically “could have been determined exclusively by [the executive and legislative] branches.” In Jarkesy, the court listed “the collection of revenue,” “immigration,” “tariffs,” “relations with Indian tribes,” “the administration of public lands,” and “the granting of public benefits such as payments to veterans, pensions, and patent rights” as members of this class of claims. Since these matters, the court explained, historically could have been adjudicated outside Article III courts, they may be heard by non-Article III tribunals today.

Second, tradition provides a reason that claims involving “private” rather than “public” rights must be brought before Article III courts instead of administrative tribunals. A hallmark of a private-rights suit that belongs before an Article III court, the Jarkesy court stated, is being “made of the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.”

In Jarkesy, the court decided that the securities fraud claim at issue resembled common-law fraud, a traditional common-law claim and so a private right requiring an Article III tribunal. (The court also emphasized that the remedy the SEC was pursuing – civil penalties – was historically enforceable in courts of law; accordingly, the SEC was bringing a suit “at common law” to which the Seventh Amendment jury trial right attached. Jarkesy thus revolved substantially around the jury trial right, which is not a question directly presented in Sun Valley.)

Tradition, then, helps to demarcate the boundary between claims that must be adjudicated by Article III courts (private rights) and claims that may be resolved before other courts, including administrative agencies (public rights). But how should the court decide whether a present-day claim fits into a tradition of private rights or public rights? In particular, what should the court do when there are multiple traditions into which a present-day claim might fit?

The court’s upcoming case Sun Valley provides an example of the problem of “too many traditions.” Sun Valley involves a nonimmigrant visa program, administered jointly by the Department of Labor and the Department of Homeland Security, that permits American employers to hire foreign laborers to perform temporary or seasonal agricultural work. As a condition of participating in the program, employers agree to provide certain workplace arrangements to both foreign and domestic workers. DOL found that Sun Valley, a New Jersey farm, had failed to provide these arrangements, and the agency assessed hundreds of thousands of dollars in civil penalties and back wages against Sun Valley. Sun Valley was required to contest these penalties before an administrative law judge, with deferential review by an Article III court. Sun Valley challenged the administrative-adjudication requirement as a violation of Article III, and the U.S. Court of Appeals for the 3rd Circuit agreed with Sun Valley.

In Supreme Court briefing, the government and Sun Valley both appeal to the history-and-tradition methodology of Jarkesy, but they sharply disagree about which tradition is relevant. The government emphasizes traditions related to immigration. According to the government, its enforcement action fits within two historical categories of public rights adjudication that did not require Article III courts: rights “belonging to the sovereign, such as the right to determine whether to allow aliens into the country,” and “privileges conferred by the government, such as public benefits granted under government programs.” In the government’s view, Sun Valley violated the conditions of bringing foreign workers to the United States through an immigration program that offered the farm a benefit. The pertinent tradition is hence the history of adjudicating immigration- and benefits- related claims outside Article III courts.

Sun Valley, by contrast, casts its claim as akin to common-law breach of contract – a traditional private right requiring an Article III tribunal. DOL’s allegation, Sun Valley observes, was that Sun Valley had violated its agreement to provide certain working conditions to foreign and domestic workers. That allegation, Sun Valley contends, is simply a charge that Sun Valley breached a contract. Sun Valley further argues that DOL sought common-law remedies and in particular civil penalties – more evidence that the claim at issue involves a private right. To Sun Valley, the case is located outside the historical tradition of immigration adjudication because it is based on conditions of employment rather than immigration status. Consequently, it was unconstitutional for DOL to adjudicate Sun Valley’s dispute in-house.

Which party is right about the tradition into which the dispute over Sun Valley’s working conditions falls? Plausibly, the answer is “both.” Yes, the government is alleging that Sun Valley violated an agreement; but the agreement in question was concluded as part of an immigration program allowing Sun Valley to hire foreign workers.

So what are courts to do when, as here, they are faced with “too many traditions” – that is, traditions with different implications for the constitutional question at hand?

One possible response is to conclude that history-and-tradition analysis is hopelessly indeterminate and to reject this methodology. While many methods of constitutional interpretation fail to yield a single right answer, “history and tradition” is often justified precisely by its promise to produce constraint and fixity. Breaking this promise might be viewed as grounds for abandoning the history-and-tradition approach.

Complete repudiation of history and tradition, however, would be unwarranted. Historical practice has played an important role in both upholding and limiting non-Article III adjudication; it is a tool in judges’ toolbox and should not be thrown away.

Another option is to supplement history-and-tradition methodology, when it does not produce a clear result, with other modes of constitutional analysis. Earlier cases on non-Article III adjudication, for instance, appealed openly to practical considerations of government efficiency.

A third option would be to draw on other “modalities” of constitutional interpretation to inform the choice of which strand of tradition to emphasize. One such modality is precedent. Jarkesy did not directly confront a program like the DOL’s in Sun Valley, so it is not controlling precedent. But Jarkesy did seem to treat Congress’ broad power over immigration as a reason to uphold agency adjudication in immigration-related cases. Perhaps this suggests that DOL’s enforcement action fits better into a traditional public-rights than private-rights category.

The court may also decide to avoid the problem of too many traditions by taking a statutory “out.” When it took the case, the court added a question regarding DOL’s statutory authority to impose civil penalties and back wages on Sun Valley. The court may decide that DOL lacks such statutory authority, potentially by appealing to constitutional avoidance (in other words, construing the statute to grant DOL such authority would raise serious questions about the constitutionality of agency adjudication, which should be avoided unless necessary to decide). But the statutory question is not straightforward, and resolving it may well have ramifications for a wide array of agency-imposed penalties. At any rate, one or more of the justices can be expected to opine on Article III in Sun Valley, and the Article III issue is bound to recur.

Overall, the problem of “too many traditions” is by no means unique to the context of non-Article III adjudication. The Supreme Court faces challenging questions about how to apply history-and-tradition methodology when a present-day practice could plausibly fit into multiple traditions. The court’s response to these questions may have an important impact not only on the future of agency adjudication, but also on the trajectory of historically driven interpretation across a variety of pressing constitutional debates.

At the Court

On Friday, the justices met in a private conference to discuss cases and vote on petitions for review. That afternoon, the Supreme Court announced that, during the conference, the justices added a new case to the oral argument docket: Goldman Sachs Bank USA v. Brown, on whether and when a bankruptcy court can override the Federal Arbitration Act and refuse to honor an agreement to arbitrate disputes. For more on the case, see the On Site section below.

Additional orders from Friday’s conference are expected this morning at 9:30 a.m. EST.

Today, the justices will hear arguments in two cases: Nielsen v. Watanabe, on whether and when federal officials can be held liable for constitutional violations; and Hoffmann v. WBI Energy Transmission, Inc., on whether the “just compensation” paid to land owners losing property to a pipeline project should be determined by referring to state law, which often provides for a higher payment than what the Constitution requires.

On Tuesday, the justices will hear argument in Department of Labor v. Sun Valley Orchards, LLC, on whether the Constitution allows the executive branch – as opposed to the courts – to adjudicate the obligation of an employer to comply with employment agreements it makes with temporary immigrant workers.

On Oct. 21, the Trump administration asked the court to allow it to resume construction of its border wall in the Big Bend region of southwestern Texas. The request has been fully briefed since Oct. 30, and the court’s decision could come at any time.

The dispute in which the justices agreed to weigh in, Goldman Sachs Bank USA v. Brown, began three years ago, when Rhea Brown and Gregory Maze filed for bankruptcy. Both listed credit card debts with Goldman Sachs Bank as one of their debts.

The Bankruptcy Code imposes an automatic stay, which (among other things) bars creditors from attempting to collect debts from someone who has filed for bankruptcy. Because Goldman Sachs, according to Maze and Brown, repeatedly continued to try to seek payment of their credit card debts, they filed an adversary proceeding (that is, a separate lawsuit within the broader bankruptcy case) against the bank, in which they contended that the bank had willfully violated the automatic stay provision.

Pointing to an arbitration clause in their credit card agreements, Goldman Sachs asked the bankruptcy court to put the adversary proceeding on hold and require Brown and Maze to arbitrate their dispute. The bankruptcy court denied that request, and both the federal district court and the U.S. Court of Appeals for the 4th Circuit upheld that ruling. A divided three-judge panel of the 4th Circuit concluded that requiring Brown and Maze to arbitrate their claim “would interfere and conflict with the strong and established policies and purposes of the Bankruptcy Code.”

Goldman Sachs came to the Supreme Court in June, asking the justices to take up its case. It told the court that the 4th Circuit’s ruling squarely conflicted with a decision by the U.S. Court of Appeals for the 2nd Circuit. Moreover, it added, “[t]he practical stakes of these issues are enormous” because of the ubiquity of arbitration clauses in consumer credit agreements. The 4th Circuit’s decision, it said, “imperils the enforceability of arbitration agreements in many of them.”

After considering Goldman Sachs’ petition for review at four consecutive conferences, the justices granted it on Friday afternoon. The case likely will be argued sometime next year, with a decision to follow by late June or early July.

More orders from the justices’ private conference on Friday are expected at 9:30 a.m. EST on Monday.

Except in a few narrow circumstances, the Antiterrorism and Effective Death Penalty Act of 1996 bars prisoners from filing a petition for federal post-conviction relief challenging the grounds for their detention when an earlier petition has already been rejected. One of these exceptions is when such a claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The other is if facts “underlying the [initial] claim” would show “by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.”

In 2007, Dexter Johnson was convicted of capital murder and sentenced to death for his role in the double murder of 23-year-old Maria Aparece and 17-year-old Huy Ngo. Five years before his conviction, the Supreme Court held in Atkins v. Virginia that executing people with intellectual disabilities violates the Eighth Amendment. A defense expert at Johnson’s trial concluded that, under the diagnostic standards employed at the time, Johnson was not intellectually disabled. Following his conviction, Johnson filed an initial habeas petition and invoked Atkins to argue – unsuccessfully – that its protections should extend to people with mental illness.

In May 2013, while Johnson’s first federal petition was pending, the American Psychiatric Association published the DSM-5, a new edition of its diagnostic manual that deemphasized IQ cutoffs. Texas’ highest criminal court adopted this in 2018. In 2019, Johnson scored 70 on an IQ test, and an expert concluded he met the DSM-5’s criteria for intellectual disability. Johnson then filed a successive habeas challenge in the district court claiming that he could not be executed under Atkins. The trial court subsequently ruled that his claim (based on the later diagnostic criteria) had been “previously unavailable,” and the U.S. Court of Appeals for the 5th Circuit affirmed that decision. The 5th Circuit denied rehearing, and Texas came to the Supreme Court, which agreed to hear the case in June.

At oral argument, Texas Solicitor General William Peterson told the justices that Congress “chose to allow new claims in these applications only in limited circumstances that do not include changes in the diagnostic standards for intellectual disability.” There is no “new rule” “previously unavailable” here, because Atkins was decided before Johnson “even committed his crimes,” Peterson said.

Justice Elena Kagan pressed Peterson on why the DSM “isn’t … part of the law?” She suggested that the DSM-5 effectively created “a kind of Atkins I and an Atkins II” – first, a rule barring the execution of people with intellectual disabilities, followed by a “substantive standard” defining what it means to be intellectually disabled. Kagan later described the Atkins standard as akin to a rule with a “big gap in it” where “the DSM comes and plugs it in and it becomes part of the legal standard.”

The justices further debated what it means for a rule to be “available.” Kagan suggested, based on prior precedent, that something is “not available to you” if it makes you “run into a brick wall.” “[I]f I was going to be [previously] laughed out of court,” she said, “then, really, the rule was unavailable to me.”

Justice Ketanji Brown Jackson told Peterson that, as she understood AEDPA, Congress’ “policy choice was to give individuals one clear shot at bringing their constitutional claims.” Under Texas’ interpretation, she said, “Mr. Johnson will never get that opportunity,” which “seems like a really incongruous consequence.”

Justice Sonia Sotomayor, for her part, suggested that the outcome should turn on something like ripeness (whether a case is sufficiently developed for a court to decide). As she remarked to Peterson, “[i]f what we have said under Atkins is you cannot execute someone who is mentally ill, we have a certain way of determining that, and it doesn't become ripe until the DM-5 makes it ripe.”

Justice Brett Kavanaugh asked Peterson whether the court “could resolve this case solely on the new rule issue without addressing ‘previously unavailable.’” Peterson said it could, but that Texas was asking the court to decide the “previously unavailable” question.

On behalf of Johnson, Jeremy Schepers told the justices that “existence and availability aren’t the same thing.” Atkins existed, but Johnson’s claim – based on the change in diagnostic criteria – was not previously available. When the clinical standards for intellectual disability change, Schepers argued, “the Eighth Amendment’s protected class potentially changes as well. And in those rare circumstances, that can render a rule legally available for the first time.”

Justice Clarence Thomas was skeptical, asking, “Does Atkins ever stop being a new rule?” Schepers responded that Atkins “remains new now.” “What about Marbury v. Madison?” Thomas responded. Justice Amy Coney Barrett noted that when “Alexander Graham Bell invented the telephone, that was new.” But “I don't think anybody would describe the telephone as new today.”

Kavanaugh pointed Schepers to a “friend of the court” brief filed by Louisiana and 21 other states, which argued that because the medical standards are “constantly evolving,” Johnson’s position is “a recipe for eternal Atkins claims and zero finality.” Schepers said that was incorrect, because a state prisoner gets “one opportunity to raise any claim,” and “so a prisoner could not raise a second Atkins claim.”

At one point, Justice Samuel Alito asked about a future edition of the DSM that “makes smaller changes” that “provide a greater opportunity for success.” Schepers said that claim would fail under the 5th Circuit’s reading, because “[i]t’s only a question of whether the claim had a possibility of merit before.”

Emily Ferguson, an assistant to the U.S. solicitor general who argued as a “friend of the court” in support of Texas, emphasized that it is “difficult to imagine Congress enacting a law that would allow the American Psychiatric Association, without independent action of this Court, to create a new rule of constitutional law.” She also noted that the court had made clear “states would be responsible for the method of determining intellectual disability,” and it would then make little “sense for there to be an available successive application anytime the relevant state had a new … supreme court case … or even a state lower court case that changed the framework that the state was using.”

Alito asked Ferguson whether the “Atkins rule” was “that a person may not be executed if the person has an intellectual disability that is regarded as such by medical professionals,” or if “it is that a person may not be executed if the person has an intellectual disability that can't be justified by the recognized purposes of punishment,” for which “the DSM would be evidence but not part of the standard itself?” Ferguson responded that the “latter formulation captures what … the Atkins Eighth Amendment rule was.”

Perhaps the most noticeable takeaway from oral argument was how subdued the justices were. The chief justice did not ask any questions, and no justice appeared to take up Johnson’s request in his brief that the court dismiss the case as improvidently granted (that is, decide that it was a mistake to have agreed to hear the case in the first place and not resolve it), as the court did last term in Hamm v. Smith, another Atkins case.

A decision is expected by late June but is likely to come earlier.

In early August of this year, I signed an amicus brief supporting Sun Valley Orchards along with former Attorneys General Edwin Meese III and Michael Mukasey and law professor Gary Lawson, prepared and filed by our lawyer Amit Vora. We argued that the respondent was entitled not only to a Seventh Amendment civil jury but also to an Article III federal court.

After reading the government’s opening and reply briefs by Solicitor General D. John Sauer, I stand by our argument that a DOL administrative law judge may not deprive Sun Valley of property by imposing ruinous fines for violating a contract that bound it to follow certain labor laws in employing foreign immigrant H-2A workers. Rather, Sun Valley has a Seventh Amendment right to have its claims heard by a jury if it desires to do so.

The government is obviously correct that the government has a sovereign right to control immigration into the United States under the H-2A program. It does not follow from that, however, that the government can condition the admission of foreign workers under this program on Sun Valley’s surrendering its constitutional right to have employment disputes with those workers adjudicated by Article III courts with a Seventh Amendment right to a jury trial. Constitutional rights cannot be taken away without due process of law or in violation of, for example, the First, Fourth, or Seventh amendments. But that is exactly what the government is trying to do in this case.

By way of example, in 1987’s Nollan v. California Coastal Commission, the Supreme Court, in an opinion by Justice Antonin Scalia, held that the California Coastal Commission could not use its plenary power over zoning to condition a renovation construction permit on the Nolans ceding a public easement to walk along their valuable California coastal property, as doing so would violate the takings clause of the Fifth Amendment. Likewise, the government cannot impose unconstitutional conditions when using either its zoning power or its plenary power over immigration. Nor can the government use its commerce power or any of its other enumerated powers to violate one’s constitutional rights. The government can shut down the foreign immigrant H2A program. But it cannot use it as a cudgel to make Americans surrender their constitutional rights simply because the rights of immigrants are at stake.

Central to the government’s argument otherwise is the public-rights doctrine. This doctrine – properly understood – allows for privileges created by the government to be adjudicated by non-Article III judges, such as the privileges to receive social-security, disability, or welfare payments; the privilege to immigrate into the United States; or the privilege to receive tax rebates under the federal government’s partial waiver of sovereign immunity. With regard to such privileges, the Constitution’s guarantee of an Article III forum and the Seventh Amendment civil jury trial right are inapplicable because the receipt of these were not property rights recognized at common law, but privileges created by the government. The government argues that because immigration into the country is also a privilege, not a right, Sun Valley’s conduct related to this are not subject to Article III protections.

It is true that the public rights doctrine was profoundly altered (one could say poisoned), in the 1977 case of Atlas Roofing Co. v. Occupational Safety and Health Administration. In Atlas Roofing, Justice Byron White denied access to an Article III court and a Seventh Amendment civil jury trial to a party subject to an OSHA enforcement order. According to White, because such orders were based on “new statutory obligations,” they could be “committed exclusively to an administrative agency [for] deciding whether a violation has in fact occurred.” This was incorrect: while OSHA created new torts that can occur in the workplace, these were analogous to the kinds of tort actions that would have been heard at common law. Indeed, such torts are classic “Cases in Law,” which Article III gives sole jurisdiction over to life-tenured federal judges assisted by a civil jury if the plaintiffs choose one. Thus, Atlas Roofing Co. changed the law to say that the public-rights doctrine not only allowed Article II administrative law judges to deprive persons of privileges, but, for the first time, it also eliminated the guarantee of a Seventh Amendment jury trial when a person or entity was deprived of property rights by the government.

Fortunately, this dangerous precedent was limited by the more recent 2024 case of SEC v. Jarkesy. In Jarkesy, the Supreme Court held that when the SEC imposed civil penalties against a defendant for securities fraud, the Seventh Amendment entitled the defendant to a jury trial. This is because in 1787 a fraud case, like the employment contract case at issue in Sun Valley (or, for that matter, the property seized in Atlas Roofing), would have been “Case in Law” assigned to the sole jurisdiction of the Article III courts.

So the lesson of Jarkesy is this: While the vast majority of cases which ALJs decide only “privileges” and not “rights” only require an Article II hearing, when federal regulatory agencies impose ruinous fines on a corporation or person, those fines are deprivations of one’s right to property. And in depriving one of such property, it is not enough to have an administrative hearing: The case must be heard by an Article III court with the right to a Seventh Amendment civil-jury trial.

The public-rights doctrine then does not apply to enforcement orders that deprive a person of property by agencies such as OSHA in Atlas Roofing, the SEC in Jarkesy, or the DOL in Sun Valley. Nor does calling a case an immigration matter empower the government to take away the constitutional rights of Americans even if immigration into the United States is itself a privilege and not a right.

So let’s hope that the Supreme Court in Sun Valley rejects, as unconstitutional, the DOL’s attempt to funnel a private-rights dispute away from an Article III forum. And let’s further hope that the court clearly reframes the public-rights doctrine, as limited in Jarkesy, as a mere manifestation of the rights/privileges distinction – and continues to prevent the doctrine from taking the form that Justice White allowed for in Atlas Roofing: an ominous threat to Article III, the Seventh Amendment, and the due process clause.

Most immediately, the power shift in the Senate will complicate (if not effectively eliminate) President Donald Trump’s ability to appoint another justice to the Supreme Court, should a vacancy arise after the new Congress is seated. The Democratic Party will have enough votes to reject a nomination – if it even allows confirmation hearings to proceed.

At the Court This Week

Today, 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. EST.

On Thursday, the Supreme Court denied two requests for a stay of execution from Jesse Guardado, who was sentenced to death for the 2004 murder of Jackie Malone. Hours later, Guardado was executed in Florida.

On Wednesday, the justices heard argument in Guerrero v. Johnson, on the limited circumstances in which a state prisoner can return to federal court for a second round of post-conviction review. Here is the link to our Case Preview.

On Tuesday, the justices heard argument in St. Mary Catholic Parish v. Roy, a religious discrimination challenge brought by Catholic preschools in Colorado over the state’s requirement that all schools participating in its universal preschool program must admit everyone – including LGBTQ children and children with LGBTQ parents. Here are the links to our Case Preview and Argument Analysis.

On Monday, the justices heard argument in Maxwell v. Dinis, on a federal inmate’s ability to use a habeas statute, 28 U.S.C. § 2241, to contest the Federal Bureau of Prisons’ refusal to accelerate his transfer to a halfway house or home confinement. Here are the links to our Case Preview and Argument Analysis.

The justices also heard argument on Monday in Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, on whether an affirmative defense may be asserted as a basis for summary judgment if not presented earlier in a pleading. Here are the links to our Case Preview and Argument Analysis.

Monday morning, the Trump administration returned to the Supreme Court’s interim docket, asking the justices to intervene in its efforts to keep California from counting ballots cast by individuals who it contends are noncitizens. Just hours later, the court denied the request. There were no noted dissents.

Later on Monday, the court released its calendar for the January argument session, which will begin on Monday, Jan. 11.

On Oct. 21, the Trump administration asked the court to allow it to resume construction of its border wall in the Big Bend region of southwestern Texas. The request has been fully briefed since last Friday, and the court’s decision could come at any time.

Looking ahead, the justices will hear arguments on Monday in two cases: Nielsen v. Watanabe, on whether and when federal officials can be held liable for constitutional violations; and Hoffmann v. WBI Energy Transmission, Inc., on whether the “just compensation” paid to land owners losing property to a pipeline project should be determined by referring to state law, which often provides for a higher payment than what the Constitution requires.

Morning Reads

Justice Dept. Steps Up Criminal Inquiry of Supreme Court Abortion Decision Leak

Jodi Kantor and Michael S. Schmidt, The New York Times (paywalled)

In May 2022, Politico released a leaked draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the right to abortion. The leak was “a seismic breach of confidentiality” and led to “an internal inquiry by the court,” although “no leaker has ever been publicly identified.” But The New York Times reported on Thursday that the Justice Department is now “pursuing a criminal investigation into who leaked” the draft opinion and that this “investigation has ramped up in recent weeks as prosecutors have sent grand jury subpoenas for testimony and sought information from people who worked at the court at the time of the leaks.”

Surprise twist ricochets through Supreme Court case on AR-15 ban

John Fritze, CNN

On Thursday, defenders of “a Cook County, Illinois, ordinance that makes it unlawful to sell or possess any ‘assault weapon or large capacity magazine,’ including AR-15 rifles,” asked the Supreme Court to dismiss a challenge to the ban that’s set to be argued in December, Viramontes v. Cook County. Attorneys for Cook County contended that the case is now moot after the “lead plaintiff, Cutberto Viramontes, asked [on Oct. 29] to be removed from the litigation without explanation.” Although the filings represent “a puzzling twist” in the case, “whether Viramontes is permitted to withdraw would have limited practical significance for the broad question of whether state and local governments may ban AR-15-style rifles,” according to CNN. That’s because Viramontes was consolidated with another case on a similar law in Connecticut, “which would continue even if the Supreme Court decided to dismiss the Cook County litigation. And whatever the court decides on Connecticut’s ban would almost certainly affect whether other bans like the one in Cook County can stand.”

Midterm Rout Closes Trump’s Window on the Supreme Court

James Romoser, The Wall Street Journal (paywalled)

Tuesday’s midterm elections “all but guaranteed” President Donald Trump won’t be able to put a fourth justice on the Supreme Court. Beginning in January, Democrats will have “a Senate majority—with a several-seat cushion—that will make it easy to block Trump judicial nominees, especially for any Supreme Court vacancies that might arise in 2027 or 2028,” according to The Wall Street Journal. Faced with this reality, “[s]ome legal observers have floated a last-ditch scenario in which [Clarence] Thomas or [Samuel] Alito could announce their retirement in the coming days and give Trump and the outgoing Republican Senate a chance to quickly install a successor before the newly elected Congress is seated on Jan. 3.” But the Journal described this scenario as “exceedingly unlikely,” in large part because neither Alito nor Thomas appears interested in retiring. And it’s not “clear that a Supreme Court nominee could get through the lame-duck Congress even if there were a retirement, especially because some moderate Republican senators are on their way out of office and blame Trump for losing their seats.”

Senate Democrats will not let Trump put a ‘right-winger’ on the Supreme Court, Schumer vows

Mary Clare Jalonick, Associated Press

In a Thursday interview with the Associated Press, Senate Democratic leader Chuck Schumer said “that Democrats will not allow President Donald Trump to put ‘a right-winger’ on the Supreme Court once they take power.” He “would not say if he would hold a Supreme Court vacancy open until after the next presidential election, as former Senate Republican leader Mitch McConnell did in 2016. But he said that Democrats are ‘not going to allow any crappy nominees’ to be confirmed to the Supreme Court.” “The bottom line is we’re not going to allow a right-winger on the court,” Schumer said.

Democrats Can Now Fix the Supreme Court Without Reforming It

Noah Feldman, Bloomberg

In a column for Bloomberg, Noah Feldman contended that Tuesday’s election results “should cause Democrats to reconsider the wisdom of plans to pack the court or strip it of jurisdiction over certain issues.” It should no longer feel as urgent to make such changes, according to Feldman, because “[i]f a Democrat wins the presidency in 2028 and the Democrats hold the Senate, the Democrats will have a chance to flip the court from 6-3 conservative to 5-4 liberal” simply by filling predicted or expected vacancies. The reform proposals floated in recent months “make little sense if Democrats take seriously the prospect of a liberal recapture of the institution,” Feldman wrote.

On Site This Week

Argument Analysis

Court leans toward narrow ruling on inmate’s use of habeas for accelerated transfer to a halfway house or home confinement

The Supreme Court heard argument on Monday in Maxwell v. Dinis on whether a federal inmate may use a habeas statute to contest the Federal Bureau of Prisons’ refusal to accelerate his transfer to a halfway house or home confinement.

Case Preview

Court to consider the reach of Article III courts in immigration contract dispute

The argument on Nov. 10 in Department of Labor v. Sun Valley Orchards brings the justices a complex constitutional problem: Does the Constitution allow Congress to delegate to the executive branch – as opposed to the courts – the authority to adjudicate the obligation of an employer to comply with employment agreements it makes with temporary immigrant workers?

Contributor Corner

Who Is Elena Kagan? Ideology, strategy, and the art of disagreement

In his Empirical SCOTUS column, Adam Feldman offered an in-depth analysis of Justice Elena Kagan, examining not only how she votes, but also how she chooses to agree and disagree.

Contributor Corner

St. Mary and the shrinking reach of Smith

In her Ratio Decidendi column, Stephanie Barclay revisited Tuesday’s argument in St. Mary Catholic Parish v. Roy, noting that the discussion put a spotlight on 1990’s Employment Division v. Smith, a controversial ruling that made it easier for the government to overcome free exercise challenges. The ruling in St. Mary, according to Barclay, “will determine how much is left of” Smith, which has already fallen out of favor with the court.

Relist Watch

Mootness, maps, and motor vehicles

In his Relist Watch column on Wednesday, John Elwood explored four petitions for review that will get a second look from the justices at today’s conference. Three concern a long-running dispute over Alabama’s congressional districts and the fourth asks whether using a car makes an otherwise local kidnapping a federal crime – even when the car never crosses a state line.

Contributor Corner

Will an ability to hold federal officers accountable survive this term?

In his Courtly Observations column on Tuesday, Erwin Chemerinsky explored Nielsen v. Watanabe, in which the court is considering under what circumstances federal officers may be sued for money damages for constitutional violations, noting that the case comes at a time when efforts “to hold ICE agents accountable” have taken on new urgency.

Contributor Corner

Is Montgomery affirmative action’s final chapter?

On Oct. 19, the Supreme Court granted review in Association for Education Fairness v. Montgomery County Board of Education, a case on race and school admissions. In his AV Ristorante column on Monday, Brian Fitzpatrick explained why he believes “it could be the final nail in affirmative action’s coffin.”

Podcasts

Advisory Opinions

Legal Ramifications of a Bluenami

Sarah Isgur and David French discuss the Texas Supreme Court’s blue wave, the possibility of a majority-Democrat Supreme Court, and one of the biggest Supreme Court cases of the term: St. Mary Catholic Parish v. Roy.

A Closer Look

Justice Peter V. Daniel

Friday’s A Closer Look is typically a judicial biography. This week we cover Justice Peter V. Daniel, who served on the court from 1841/2 to 1860.

Like some of the other justices we’ve covered, Justice Peter V. Daniel is one that “[f]ew recall or have ever heard of.” Those who know of Daniel have not been complimentary. He has been called “a brooding proslavery fanatic” according to law professor Earl Maltz, and a 1965 book review likened him to the notoriously bigoted Justice James C. McReynolds, minus McReynolds’ occasional “charm.”

Daniel was born in April 1784 on his family’s estate in Stafford County, Virginia. After studying with private tutors and a brief stint at the College of New Jersey (now Princeton University), he read law in Richmond under Edmund Randolph, President George Washington’s attorney general and secretary of state. In 1810, Daniel married Randolph’s daughter, Lucy.

In November 1808, Daniel fought a duel in Maryland against businessman John Seddon; Seddon later died from his injuries. This did not appear to significantly slow Daniel’s career, however: He subsequently spent two one-year terms in the Virginia House of Delegates, a tenure his biographer, John P. Frank, judged as “utterly undistinguished.” In 1812, Daniel joined Virginia’s Council of State, which advised the governor, and from 1818 to 1835 served as lieutenant governor. His “friends” “apparently lacked any real warmth or affection for him, complaining of his ‘frozen deportment,’” which played out literally: In the winter of 1813, Daniel reportedly balked at spending a modest sum to keep militiamen warm, despite their officer’s warning that the men’s lives were at stake, on the reasoning that Virginia state law made the soldiers responsible for their own clothing.

Daniel’s Richmond law practice was modestly successful, but he had other aspirations. Through the Richmond Junto (a Virginia Democratic-Republican network) he organized and led the state’s Jacksonians, and, along with then-New York governor Martin Van Buren, built an “Albany-Richmond axis,” which backed Andrew Jackson for president. Daniel subsequently turned down Jackson’s offer of attorney general. In 1836, however, he accepted a federal judgeship in eastern Virginia, Jackson’s reward for his party loyalty and his support for the president’s war on the national bank.

When Justice Philip Barbour died in February 1841, Van Buren had roughly a week left in office and rushed to nominate Daniel to the court. Aware of Daniel’s reputation, Whig senators tried to stall the vote, at one point walking out together to leave the chamber without a quorum, while Democratic leaders searched the capital for their own absent senators. Daniel was ultimately confirmed 22-5 in a midnight vote. The exact date he took the oath is unclear; the Federal Judicial Center lists it in January 1842 “based on questionable authority,” while one biography entry has him joining the court in December 1841.

After he joined the bench, Daniel’s circuit assignment included Arkansas and Mississippi, which involved arduous trips from Washington. While circuit riding in 1851, for example, Daniel rode in a canal boat for two days to get from D.C. to Pittsburgh (and was not a fan of the other “vulgar and filthy” passengers).

On the court itself, close to one in three of Daniel’s written opinions was a dissent, and during his tenure, his solo dissents outnumbered any other justice’s by more than two to one. He fought against extending federal admiralty power to inland waters, and when the court did just that in 1852’s Genesee Chief v. Fitzhugh, Daniel was the lone dissenter. Perhaps his best-known majority opinion came in 1848’s West River Bridge Co. v. Dix, which put Daniel opposite the famed lawyer and statesman Daniel Webster. Daniel detested Webster so much that, after meeting him, he reported his hand “was actually contaminated by contact with his.” In the case, Vermont had taken over a privately chartered toll bridge, paid compensation, and opened it as a free road, but the bridge company argued that the takeover breached the contract clause of the Constitution. Writing for the majority, Daniel held that the franchise was ordinary property that the state could take through eminent domain.

Daniel, who was a slaveholder, concurred in 1842’s Prigg v. Pennsylvania, which held that the federal Fugitive Slave Act preempted Pennsylvania’s ban on recapturing formerly enslaved persons. After Van Buren joined the antislavery Free Soilers, Daniel’s friendship with him ended, and Daniel reportedly swore he would never again set foot north of Maryland (he came to blame even bad weather on the North). In Dred Scott v. Sandford, Daniel argued that freed slaves could not be citizens because they had once been held as property and that the Northwest Ordinance of 1787 (which, among many other things, had kept slavery out of land north and west of the Ohio River) was unconstitutional, thus taking a more extreme position than even Chief Justice Roger Taney, who wrote the majority opinion.

Daniel’s first wife, Lucy, died in 1847, and his second wife died in 1857 after a candle accidentally lit her clothes on fire. Daniel died in Richmond in May 1860 following a lengthy illness. In February 1861, Republican senators blocked President James Buchanan’s pick to replace him, Jeremiah Black, making the seat one of the three vacancies that President Abraham Lincoln filled in 1862. It stayed open until July 1862, when Lincoln chose Justice Samuel Miller.

In a December 1860 memorial, the attorney general said that Daniel “held the pen of a ready writer,” but “was sometimes in danger of going too directly to his purpose and treating with too much contempt the obstacles that intervened.”

SCOTUS Quote

JUSTICE THOMAS: “Does Atkins ever stop being a new rule?”

MR. SCHEPERS: “In our view, Atkins was new at the time it was decided.”

JUSTICE THOMAS: “We're talking about now, though.”

MR. SCHEPERS: “That – we believe that Atkins was new based off of the character of the decision in 2002 and that it remains new now.”

JUSTICE THOMAS: “What about Marbury v. Madison?”

— Guerrero v. Johnson (2026)