The court’s three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – indicated that they would have denied the Trump administration’s request (and, as a result, kept the third-country removals on hold).

Tuesday’s order was the most recent chapter in a whirlwind proceeding at the Supreme Court – and the third time that the Trump administration had asked the justices to step in to pause a ruling against it by a federal judge in Massachusetts. The dispute has its roots in the executive order that President Donald Trump signed in January 2025, in which he instructed the Department of Homeland Security to take “all appropriate actions” to remove noncitizens who were in the United States despite having orders to deport them.

In the wake of that order, DHS issued internal guidance that directed U.S. Immigration and Customs Enforcement to determine whether undocumented immigrants who had received deportation orders but had not yet been removed because of the possibility that they would be tortured if they were returned to their home countries could instead be sent somewhere else. One month later, DHS issued more guidance in which it indicated that before immigrants can be sent to a country that is not specifically identified in their removal orders and that has not provided the United States with assurances that the immigrants will not face torture, DHS must follow a series of procedures: It must first notify the immigrants of the planned removal, provide them with an opportunity to voice any fears that they will face torture, and – if needed – screen them to determine the likelihood that they will indeed be tortured.

In March, four immigrants with removal orders went to federal court in Massachusetts, where they contended that they feared being deported to a country that was not identified in their orders.

U.S. District Judge Brian Murphy issued an order that barred the government from deporting the plaintiffs and others like them to third countries without first giving them written notice of the third country to which they might be removed, as well as a “meaningful opportunity” to challenge that removal. Moreover, Murphy added, DHS should also determine whether the immigrants’ fears of torture were “reasonable,” rather than whether it is “more likely than not” that they will be tortured. If immigrants cannot make that showing, Murphy added, DHS must give them at least 15 days to seek to reopen their immigration proceedings.

U.S. Solicitor General D. John Sauer went to the Supreme Court for the first time in May 2025, asking the justices to pause Murphy’s order. Over a dissent by Justice Sonia Sotomayor that was joined by Justices Ketanji Brown Jackson and Elena Kagan, the court on June 23 granted that request.

Sauer returned to the court for the second time one day later, asking the justices to “clarify[]” that, in the wake of their first order, the Trump administration could deport eight men it was holding on a U.S. military base in Djibouti after Murphy had ruled that efforts to remove them to South Sudan violated his order.

On July 3, the court issued a brief opinion in which it indicated that its June 23 order paused Murphy’s order “in full” – and also applied to his later order regarding the South Sudan deportations. Kagan wrote a brief concurring opinion, in which she indicated that although she disagreed with the court’s initial decision to pause Murphy’s order, she did “not see how a district court can compel compliance with an order that this Court has stayed.” Sotomayor again dissented, joined by Jackson.

In February of this year, Murphy issued a final judgment in the immigrants’ favor and struck down the third-country removal policy. He ruled (among other things) that before immigrants can be deported to a third country, they have the right to “meaningful notice” and a “meaningful opportunity” to contest deportation to that third country on the ground that they reasonably fear persecution or torture there.

On Sept. 18, the U.S. Court of Appeals for the 1st Circuit largely upheld Murphy’s ruling, and five days later, it dissolved a March 16, 2026, order that put Murphy’s ruling on hold while the government appealed.

That prompted Sauer to go to the Supreme Court for the third time, asking the justices to block Murphy’s order again. Sauer argued that Murphy’s order robbed the government of “an essential tool to remove certain aliens, including some of the worst criminal aliens,” and asserted that it “rests on the same fundamentally flawed legal premises as the previous rulings.” Moreover, he contended, the reinstatement of Murphy’s order has “created substantial logistical problems with ongoing removal operations—including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals.”

The immigrants countered that Murphy’s decision “does not prevent third-country removals; rather, it simply requires” the Trump administration “to do so lawfully.” They told the justices that the Trump administration’s arguments “ignore the significant harm resulting from deporting thousands of longtime U.S. residents, many with no criminal history, to third countries without regard to the persecution or torture they face there.” But if Murphy’s order is allowed to remain in place, they said, any injuries that the Trump administration will suffer “are neither irreparable nor caused by” his decision because the order does not require the Trump administration to release immigrants from detention, “prohibit third-country removals, or undo existing arrangements.” The government, they said, “can avoid any resulting delays by timely providing the notice and opportunity to be heard that the law requires.”

In a brief order released on Tuesday afternoon, the court put Murphy’s order on hold and set the case for oral argument sometime in early December. They instructed the litigants to brief several different questions, including the legality of the DHS guidance, whether Murphy had the power to consider the immigrants’ claims and to throw out the DHS guidance, and – in an unusual move – any “other questions that the Government determines are appropriate for the proper disposition of the case.”

Sotomayor, Kagan, and Jackson indicated that they would have denied the government’s request to pause Murphy’s order, but they did not provide any explanation for that statement.

Lawyers tend to internalize the constitutional law that existed when they attended law school. Consider a lawyer who took the course in the spring of 2005, a few months before the Rehnquist court adjourned for the last time. That lawyer learned that the Constitution protected a right to abortion, that a university could consider an applicant’s race to assemble a diverse class, that courts identified an establishment of religion by applying what is known as the Lemon test, and that Congress could protect the members of an independent agency like the Federal Trade Commission from removal by the president. None of these four propositions accurately state the law today. That lawyer probably also learned nothing about the Second Amendment, which the court had not interpreted since United States v. Miller in 1939. Yet since District of Columbia v. Heller in 2008, the court has decided six major Second Amendment cases.

We have followed these changes from an unusual vantage point. Our casebook, “Constitutional Law: Cases in Context,” has gone through five editions: the first in 2008, the second in 2013, the third in 2017 (when Blackman joined), the fourth in 2021, and the fifth, which will be published this December. Casebook editors work within a fixed page budget. For every case we add, we must shorten or remove another, so each edition records a judgment about which cases a student must now read. In this new series, we will discuss what has changed over the past two decades on the court. This first installment explains how much of the course has stayed the same. In the installments that follow, we take up each area of constitutional law in turn.

Between 1994 and 2005, the Supreme Court remained in a remarkable period of stability. For more than a decade, Stephen Breyer served as the junior justice on the longest “natural Court” in modern history. But with the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O’Connor, 2005 would usher in the Roberts court. In the span of just five years, four new justices joined the court. And between 2016 and 2022, four more justices were added. Today, only Justice Clarence Thomas remains from the Rehnquist court.

This change in the court’s composition also led to sea changes in constitutional law. Dobbs v. Jackson Women’s Health Organization overruled Planned Parenthood v. Casey and Roe v. Wade, and arguably undermined Lawrence v. Texas and Griswold v. Connecticut. Students for Fair Admissions v. President and Fellows of Harvard College declared that race-conscious university admissions policies violate the equal protection clause and effectively overruled Grutter v. Bollinger. Kennedy v. Bremerton School District, Carson v. Makin, and Mahmoud v. Taylor reoriented the court’s entire religion clauses jurisprudence. Free speech also shifted, as conservatives in Moody v. NetChoice became more open to government regulation of speech platforms. Trump v. Slaughter completed the decade-long assault on 1935’s Humphrey’s Executor v. United States. The decade also saw an explosion of new Second Amendment cases, including New York State Rifle & Pistol Association, Inc. v. Bruen, Wolford v. Lopez, United States v. Rahimi, and United States v. Hemani. Then there were a host of Trump-specific cases. Trump v. United States expanded presidential immunity. Trump v. Barbara invalidated the president’s birthright citizenship order. Trump v. Cook reaffirmed the Federal Reserve's independence.

Many constitutional law professors have struggled with teaching these significant shifts in the law. Today, little remains of the landmark cases handed down at the tail end of the Rehnquist court, and much of the Burger court’s jurisprudence has been obviated. Still, despite all of these changes, a great deal has stayed the same. In 2024, we predicted that, “Even after accounting for the recent terms, our syllabus will be about ninety percent the same as it was in 2019.” After the Supreme Court’s 2025-26 term’s conclusion, we will probably need to lower our estimate to about eighty percent, but the general gist holds.

The narrative of American constitutional law stretches nearly 250 years. The first two centuries of this story have remained stable throughout all editions of our casebook and are unlikely to change in the future. This is one feature of using a casebook that adopts the narrative organization. The first part of every class remains largely unchanged, as students are first introduced to the canon and anti-canon.

The decisions of the Marshall court remain canonical and are the standards against which all other decisions are compared. Marbury v. Madison affirmed the Supreme Court’s role of reviewing the constitutionality of actions taken by other branches. McCulloch v. Maryland set the boundaries of Congress’ powers under the necessary and proper clause. Gibbons v. Ogden defined the scope of Congress’ powers under the commerce clause. Barron v. Baltimore held that the first ten amendments only limit federal power. And then are the court’s decisions concerning slavery. Prigg v. Pennsylvania upheld the draconian Fugitive Slave Act as a valid exercise of federal power. And Dred Scott v. Sandford ruled that people of African descent could never be citizens for purposes of law, even if they were full citizens of their state. The original structure of the Constitution was deeply affected by the preservation of slavery, and the 14th Amendment revised that structure as a result of resistance to slavery’s demise. Antislavery constitutionalism also introduced into constitutional discourse the schism between original intent and original meaning interpretive methods.

The Civil War brought several important disputes about the president’s war powers. Ex parte Merryman ruled that the president could not unilaterally suspend the writ of habeas corpus. The Emancipation Proclamation tested the constitutionality of President Abraham Lincoln’s order freeing certain slaves in rebel territories. The Prize Cases asked the Supreme Court to decide whether the Civil War was, in fact, a war. Decisions from the Reconstruction period established the formative interpretations of the 13th and 14th Amendments: the Slaughter-House Cases, Bradwell v. Illinois, and United States v. Cruikshank all narrowly read the privileges or immunities clause of the 14th Amendment. Later opinions defined the powers of state and federal governments regarding racial discrimination. Strauder v. West Virginia held that the federal Constitution prohibits segregated juries. But the Civil Rights Cases declared unconstitutional a federal anti-discrimination law for places of public accommodation. Yick Wo v. Hopkins found unconstitutional a restriction on laundry facilities that targeted Chinese aliens. And Plessy v. Ferguson ushered in the doctrine of “separate but equal.”

The Progressive Era struggled to define Congress’ powers under the commerce clause and the necessary and proper clause: United States v. E.C. Knight Co., Champion v. Ames, and Hammer v. Dagenhart. These rulings fluctuated over what sorts of activity Congress could regulate. That same Progressive Era court refined the scope of liberty protected by the due process clause with a slew of decisions, including Lochner v. New York, Muller v. Oregon, Meyer v. Nebraska, Pierce v. Society of the Sisters, and Buck v. Bell. These rulings – Buck v. Bell excepted – provided broad protection for both economic and social rights under the doctrine that would become known as substantive due process.

The New Deal court revisited the Progressive Era’s decisions on the due process clause by tinkering with the presumption of constitutionality, including in West Coast Hotel Co. v. Parrish and United States v. Carolene Products Co. The courts would no longer strictly scrutinize economic regulations. The New Deal court vastly expanded the federal government’s powers through NLRB v. Jones & Laughlin Steel Corp., United States v. Darby, and Wickard v. Filburn. Now, Congress could regulate intrastate economic activity that had a substantial effect on interstate commerce.

World War II brought conflicts over presidential power with Hirabayashi v. United States, Korematsu v. United States, and Ex parte Endo. The Supreme Court upheld the president’s executive powers to detain Japanese Americans. But during the Korean War, Youngstown Sheet & Tube Co. v. Sawyer halted the president’s seizure of steel mills.

Then came the Warren court, which revolutionized nearly every facet of constitutional law and constitutional law casebooks. Brown v. Board of Education, Bolling v. Sharpe, and Loving v. Virginia were landmark equal protection clause cases. Heart of Atlanta Motel, Inc. v. United States and Katzenbach v. McClung expanded the scope of Congress’ enumerated powers through anti-discrimination laws. Williamson v. Lee Optical, Inc. removed the court from the business of reviewing economic regulations. And Griswold v. Connecticut opened a new front to scrutinize morality-based laws. Chief Justice Earl Warren stepped down from the court in 1969.

All of the cases mentioned above between 1789 and 1969, plus many more, have become the constitutional canon and anti-canon. They are not going anywhere in our casebook. The doctrines now in flux concern only cases from the past half-century, roughly 20% of the Supreme Court’s service. Apart from these modern cases, our casebook coverage has remained largely unchanged since 2008.

Each generation of law students sees changes in how the Supreme Court interprets the Constitution, shaped by the conflicts of the day. Often these shifts happen slowly and even imperceptibly. Other changes happen radically in a short span. The justices control the shift. In both types of cases, the justices may not appreciate the consequences of one decision until the next case comes along.

People tend to think the times they are living in are the most unprecedented and unpredictable, but that is rarely the case. As described above, the Supreme Court decided cases during the nation’s formation, conflicts over slavery, the Civil War, Reconstruction, the Progressive Era, World War I, the Great Depression, and World War II. When teaching constitutional law, it is important to keep the big picture in mind and avoid getting bogged down in the minutiae of the day.

The rest of this series will trace changes in constitutional law over the past two decades.

They couldn’t get all the way around. The Kennedy Center board put in place by President Donald Trump has fenced it off, after voting to close it when a court ruled that Trump couldn’t chisel his name into the marble next to President John F. Kennedy’s – the slain president for whom the building was erected.

Trump has now indicated his intention to demolish the Kennedy Center, which has many people asking: Is that legal? Or, demolishing the White House East Wing for a ballroom – is that legal? And finally: Why isn’t anyone doing anything to stop it?

When something is unlawful, lightning does not come from the sky to proclaim it so. Congress makes laws, and for those laws to mean anything, that usually requires someone harmed to come to court. The Constitution then entrusts the courts – and in particular, the Supreme Court – to safeguard the rule of law. Yet this Supreme Court is demolishing it – and building a structure of power for itself in the rubble.

The dominant accounts of this court are that it is political. My account is not. Trump wins sometimes – but not always. Congress, the states, and the federal agencies lose often – but not always. Rather, my view is that the Supreme Court is accumulating and manufacturing power for itself far beyond that which the Constitution confers, in high-profile cases you’ve heard about – which the media reports as wins or losses for the president – and in many you haven’t.

But to see the pattern, you have to trace some of the less visible – but no less troubling – ways the court is building undivided power for itself in a Constitutional order that prohibits that very thing. No single case or area of law makes the pattern visible; rather, you have to see it, over and over. So bear with me – through cases about things that really matter: our elections, the balance of power between the president and Congress, and who can come to court to protect anything at all.

Leave elections to the Supreme Court

Elections are run by the states, and we the people decide who governs. The Constitution says so. Courts also aren’t allowed to interfere with elections already underway – that’s the rule, and the Supreme Court wrote it, in 2006’s Purcell v. Gonzalez.

Yet this Supreme Court intervenes into ongoing elections all the time – like it’s ordinary. In North Carolina elections; in Texas, twice. In New York: By unsigned order, on its emergency docket – a docket that exists, in theory, for actual emergencies the court is supposed to explain – the court intervened to keep a district in place that a state judge had declared unconstitutional before New York’s own high court could say a word.

The court handed Trump a loss on mail-in ballots in September, right after it handed him a win on the same issue in August. The question behind the whiplash is the legality (or not) of Trump’s March 2026 executive order on mail-in ballots – a question, by the way, the court still hasn’t answered.

A federal judge in Boston blocked the order. In doing so, it followed the Purcell rule – that courts should not interfere with elections already under way, which in this case included state primaries in Massachusetts, New Hampshire, Rhode Island, and Delaware, and early voting for the general midterms in Virginia, Minnesota, South Dakota, and Idaho. So did the U.S. Court of Appeals for the 1st Circuit, which refused to disturb the lower court’s decision. Twice.

In August, the Supreme Court nevertheless intervened by unsigned order, and stayed the decision of the district court, over Justice Ketanji Brown Jackson’s warning that the administration sought the court’s blessing to foment chaos before the midterms. The court didn’t say Trump’s order was lawful; it said the challenge to the order – brought in April, seven months before a nationwide election – had come too early. The effect of the August stay, then, wasn’t to pause likely unlawful conduct – what a stay is supposed to do – it was to unleash it.

On Sept. 14, while the Post Office scrambled, states redesigned ballots and prepared to upload voter files to a federal portal that didn’t exist, the court intervened again, and handed Trump a headline loss: Six weeks before a federal election, the court declined to allow key aspects of Trump’s executive order to go into place. (And by the court, I don’t actually mean the court, which issued no opinion, rule, or explanation. It’s just three sentences, accompanied by a statement from Justice Brett Kavanaugh that the executive order is likely lawful, and the problem was that the defenders of the executive order were too late – just after saying in August that the challengers were too early.)

This isn’t a court deciding if power over elections goes to a president or to the states. This is a court meddling into elections against its own rule that courts shouldn’t, and creating disorder – no rules, no standards, no law – and thus taking power for itself and itself alone. States don’t have full control over elections, but neither does Trump. It would appear that the one with the power over our elections, increasingly, is the court.

The court is also giving itself the power to ignore facts and evidence in cases about elections. The rule, older than the country itself, is that fact findings happen at the trial court – which hears the evidence and sees the witnesses. That rule doesn’t bind this court – says this court.

When this court does want broad-sweeping precedent, it writes it – and guarantees precedential effect: in April, it held in Louisiana v. Callais that Louisiana’s compliance with the Voting Rights Act was itself unconstitutional – signed and reasoned, clearing the way for Southern states to eliminate Black-held districts before November.

But the court has given itself a second way to decide, and the court’s power payoff is optionality – precedent when it wants it, skipped when it is an impediment to something else it wants more, especially in cases that matter most. A quick result, a truncated process, and the lower courts cut out. (And skipping it often costs nothing — agencies follow these orders anyway, and so do district courts, with nothing else to go on.)

Like in Alabama, when the court threw out the facts and evidence from an 11-day trial with dozens of witnesses before a three-judge court that found Alabama’s election map intentionally discriminated against Black voters. With an unsigned order, the court restored Alabama’s map one week before the primary: Election officials had seven days to reassign 600,000 voters by hand.

Yet another example: After Trump’s Justice Department told Texas to redraw its election map, a three-judge panel found in a 160-page opinion that the redrawn map was unlawfully racially gerrymandered. The Supreme Court threw out the trial court’s facts and stopped the ruling without explanation on the emergency docket. It ultimately reversed in an unsigned order, without even hearing argument. What little explanation there was came from Justice Samuel Alito, who didn’t say the trial court had gotten the facts wrong. He twisted the rule requiring deference to a trial court’s findings into one that didn’t apply at all – recharacterizing fact findings the court doesn’t like as legal errors, so it can ignore them or substitute its own.

Two wrongs don’t make a right, but they can certainly make another kind of precedent – not the kind anyone can cite, but a practice for consolidating power: The power to ignore the facts of those courts best suited to evaluate them, and to have the ultimate say – never mind that of Congress or the states – over how elections are to be conducted.

Neither Congress’ power nor the president’s

But let’s move on to another pivotal area of law. Here, consider two fights that started out having nothing to do with the court’s power. One was about whether the president or Congress has power over federal agencies. A single agency rule can affect more people’s daily lives than any headline-grabbing White House demolition – their rules control interest rates; disease research; nuclear power plant safety; vaccination recommendations; unionization rules; food safety inspection; and so much more. Trump came to the court saying he could fire the people who run the agencies Congress made independent; Congress said those agencies were theirs to control.

This June, overturning 90 years of precedent, the court sided with Trump. In Trump v. Slaughter, a majority held that the power to fire agency heads belongs to the president, and the “history” of the agency (the prior precedent reasoning which preserved for-cause removal protections for the FTC) – again, the rule for 90 years – doesn’t matter.

Yet that very same day, the court handed Trump a loss. In Trump v. Cook, the court said that Congress controls agency heads – in Cook, the Federal Reserve’s – when (wait for it) the “history” of the agency justifies it.

Justice Amy Coney Barrett rightly called out the incoherence here: either the president has this power, or the president doesn’t. But notice the court’s power. A contradictory constitutional rule is one that nobody can apply, or predict, or act upon – except the court itself. Once again, the real power, then, is not the president’s or Congress’, but the court’s: When it prefers that a particular president control a particular agency, it has Slaughter. When it does not prefer a particular president control a particular agency, it has Cook.

This bottom line isn’t politics; it’s the court manufacturing the power to do whatever it prefers, politically or otherwise. And sometimes it prefers otherwise: note where Trump’s losses have come – the Fed, where a wrong answer moves markets, and his tariffs, which leading economists understood would raise prices and rattle stock portfolios.

Another issue has concerned the president’s power to control Congressional spending. In National Institute of Health v. American Public Health Association, the court said that Trump could cancel $783 million in congressionally appropriated funds for cancer, HIV, and Alzheimer’s research based on patients’ race. After a bench trial, Judge William Young, a Reagan appointee with forty years on the bench, had found Trump’s terminations of the grants illegal; he had “never seen . . . racial discrimination so palpable.” The unlawful terminations notwithstanding, in an unsigned order with five separate opinions – none joined by more than four justices, and two justices explaining nothing at all – the court held that no district court had the power (the “jurisdiction”) to order the funds to be paid out. Four months earlier, in Department of Education v. California – another unsigned order on the emergency docket – the court had addressed the same jurisdictional question and reached the opposite result.

The executive and congressional powers, increasingly reduced to the power to ask this court for permission.

That leaves everybody else: us. And for us, the court is building something more powerful than a loss: a power to decide which people it gives access to the courthouse door, or not – not according to any consistent rule about the judicial power, but according to who it prefers to let in at the time. Which brings us back to the Kennedy Center.

No one can save our national landmarks

Congress created the Kennedy Center in 1964 and wrote into the statute that it would be the sole national memorial to President Kennedy in Washington, D.C. In December, the Trump-controlled Kennedy Center Board nevertheless voted to name it for Trump. A federal judge ruled that only Congress had the power to change the Kennedy Center’s name. On Sept. 15, the same judge blocked the board from adding Trump’s name – again. That night, the board voted to close the Kennedy Center.

On Sept. 16, the president laid down the threat: The $257 million Congress has appropriated for repairs of the Kennedy Center – which ran a roughly $40 million surplus the year before Trump took it over, and which its own Trump-appointed leadership now says has been run to the brink of bankruptcy – would come only if the Trump recognition did. Put my name on the building, Trump said, or the building “will end up being ripped down.”

The person trying to stop all of this in court is Rep. Joyce Beatty. She isn’t in court in her capacity as a legislator – the court has long held that Congress doesn’t have standing to sue for the dilution of its own powers – but because 60 years ago Congress seated its own members on the Kennedy Center Board of Trustees, and the common law of trusts does the rest of the work.

Yet this court has already laid all the groundwork to say that Beatty does not have standing to sue at all, no matter what Congress said.

In August, in another unsigned order containing a four-vote dissent written by Roberts, the Supreme Court let Trump continue his ballroom construction in the rubble of the demolished East Wing. In National Park Service v. National Trust for Historic Preservation, the court did not conclude that the demolition of the East Wing, or the building of the ballroom, was lawful. The National Trust sued on behalf of Alison Hoagland, a member of its board, who said she would be harmed not by the demolition of the East Wing, but by the ballroom that would eclipse the White House. The court said that Hoagland was not allowed to come to court to protect the White House, however. What she had suffered, the court stated, was not “injury,” but “mere offense, disagreement, or distaste.”

A distinction between concrete, economic injury that gets you in the courthouse door and mere “offense” that does not could be defended as a proper exercise of the Supreme Court’s authority to define what cases federal courts may hear. The trouble is, that isn’t the line the court draws. The court has long let people sue to protect an animal they travel to see – even when all they want to do is look at it. According to Justice Antonin Scalia, if the animal you went to see is gone, you’re “injured” enough to get into court. But to a majority of today’s justices, if Trump’s enormous ballroom eclipses the White House you came to see on your visit to Washington, you’re just “offended.”

Just look at who the Supreme Court lets in the courthouse door, who it doesn’t – and why.

Ted Cruz opposed a campaign finance rule that limits candidates who lend money to their own campaigns to a maximum payback of $250,000 after an election. The day before the 2018 election, Cruz lent his campaign $260,000, in order to generate an economic “injury” he could sue over – a strategy he openly announced. The court let him sue, on the grounds that the statute – not his purposeful over-lending – was what took the $10,000 from him. “Economic injury,” then, can be made up.

Or it can be a single dollar. A college student in Georgia was twice stopped from sharing religious pamphlets on campus. By the time his case reached the court, the college had dropped the policy he challenged, and he had graduated – no injury left to fix. But he had also requested $1 in damages, which eight justices agreed was enough to keep the case alive.

And “offense,” it turns out, can get you in the door after all. Lorie Smith runs a web-design business in Colorado. She sued Colorado state officials over a law that says a business open to the public cannot refuse service to a customer based on who they are – including whether they are gay. Smith didn’t want to have to make wedding websites for gay couples, and she wanted to post that on her website. No same-sex couple asked her to make them a website, and she never lost money from turning away a customer. Colorado never charged her with a thing. She went to court anyway, not over a request she received, but over her offense at the prospect of receiving one. The court ruled that Colorado could not, in the future, apply its law to Lorie Smith – a law it had never, in fact, applied to Lorie Smith – and took her “injury” as a foregone conclusion.

Others weren’t so lucky. Two weeks after the August ballroom order, Justices Samuel Alito and Clarence Thomas said that voting-rights organizations trying to keep mail ballots from being discarded had suffered no “injury;” they had simply experienced “a setback to the organization’s abstract social interests.” On Jan. 14, the court nevertheless held that Congressman Mike Bost could challenge Illinois’ rule that permitted counting mail-in ballots that arrive after election day. Mike Bost had already won his race. Late ballots wouldn’t change it, and he couldn’t show that Illinois’ rule had cost him a dollar. Apparently, a candidate who lost nothing may sue about how votes are counted but organizations trying to keep ballots from being thrown out may not.

Standing is, by the court’s own account, a limit on its own power. So are jurisdiction, procedure, and remedies – each exists, to one degree or another, to limit what courts may do. But this court has transformed these tools of limitation into weapons to determine, at whim, who can get into court.

Potential paths forward

We must recognize how the court’s supposed limitations on power have become methods for accumulating it. By defining its own limitations, then manufacturing power by applying or ignoring its limitations selectively, without any discernible standard, it has made the rules apply at, but only at, the court’s whim.

How best to respond? Structural reform means constraining the court that has demonstrated it cannot be trusted to constrain itself. (The following examples are only sketches; I will explore them more fully in a subsequent article.)

A first example is constitutional due process requirements on the court’s emergency docket: Relief granted without full process is only allowed when it is time-limited and followed by a hearing – that’s the constitutional rule binding every court in the country. Congress should impose on the court what the court should already require of itself: An order granting emergency relief expires after a specified, highly abbreviated time unless the case is set for argument; upon expiration, the judgment below is restored.

Second, Congress should codify the rule the court announced but will not follow – a hard-stop on election-eve Supreme Court intervention. Set a date: No federal court, this one included, alters the rules of an election already underway inside a fixed statutory window.

Third, rules of ethics for the court, enforceable on both sides. Every ethics proposal regulates the justices – who have suggested they cannot, in fact, be regulated. Regulate those bearing the gifts – those sending private jets, yachts, and college tuition payments. Make it unlawful for anyone with business before the court to give above a low statutory threshold, with harsh penalties for violation – fines, disgorgement, discipline from the bar – all of which issue from someone other than the court. That structural design is the critical part: Right now, the only ones guarding the henhouse are the foxes. But Congress can legislate against private parties, with nothing administered by the justices.

A final example: Fact-finding by the lower court stays in force unless the reviewing court says what is wrong with it. That’s the rule already binding every appellate court. Congress legislated the Rules Enabling Act – which delegates power to the Supreme Court to make procedural rules – so Congress can impose that fact-finding rule on the court. Alabama’s 11-day trial and Texas’s 160-page factual record would be preserved, unless the court does its job and explains what’s wrong with them.

There are other examples, including the one everyone mentions: term limits. But the window for structural reform is closing. Much of the power this court has taken is already poured into the foundation, beyond the reach of anything but constitutional amendment. Structural reforms on the Supreme Court must then be the top priority after the November elections.

The point is not to weaken judicial power, nor judicial independence – quite the opposite – but to restore the division of power our Constitution put in place.

A demolished White House or a Kennedy Center bulldozed to rubble – all may be difficult to repair. But we would see them go. A demolished constitution – and in its place an unchecked ruling body of nine unelected lawyers enshrined in the very Constitution they destroyed and then rebuilt for themselves – will be gone. Even if it’s still called our Constitution.

At the Court

On Monday, the Supreme Court announced that Justice Samuel Alito will not continue to participate in Suncor Energy Inc. v. County Commissioners of Boulder County, a significant climate change case that will be argued next Monday. Learn more about the recusal in the On Site section below.

Also on Monday, the Trump administration brought a dispute over the Federal Bureau of Prisons’ policy on healthcare and accommodations for transgender inmates to the Supreme Court’s interim docket. For more on the case, see the On Site section.

Earlier on Monday, the justices met for the annual “long conference” to consider petitions for review that built up during the summer recess. We are expecting the court to release a list of the cases granted during the conference later this week.

On Thursday, the Trump administration asked the Supreme Court to intervene in a battle over third-country removals – that is, the removal of noncitizens to countries not identified in their removal orders. On Monday, the challengers responded to that request. Find Amy’s coverage of the new filing in the On Site section.

We’re now less than one week away from the official start of the 2026-27 term on Monday, Oct. 5. The justices will hear two oral arguments that day.

Morning Reads

UN experts call for halt to Trump policy of migrant deportations to third countries

Reuters

As the Supreme Court considers an emergency application from the Trump administration on third-country removals - that is, the removal of noncitizens to countries not identified in their removal orders – “[m]ore than a dozen UN human rights experts have written to the US government urging a halt to” such removals, saying they are “putting migrants at heightened risk of abuse, including torture and persecution,” according to Reuters. “The harms caused by this US Government scheme are no longer hypothetical,” the statement said, without discussing individual cases. “At gravest risk are children, women, persons with disabilities, victims of trafficking, LGBT persons, human rights defenders, stateless persons and other people in extremely vulnerable situations.”

Man gets 6 years in prison for taking explosives to church hosting annual Red Mass for justices

Michael Kunzelman, Associated Press

On Monday, Louis Geri of New Jersey was sentenced “to nearly six years in prison for taking homemade explosive devices to a Washington, D.C., church that was preparing for an annual Mass celebrating the start of the Supreme Court’s term,” according to the Associated Press. “Geri was arrested on Oct. 5, 2025, outside the Cathedral of St. Matthew the Apostle, where police officers were clearing the area before the annual Red Mass. Police said they found in Geri’s possession paperwork that expressed ‘significant animosity’ toward the Roman Catholic Church, Jewish people and the Supreme Court,” and “more than 100 homemade explosives.” The AP noted that “[s]ome justices usually attend the celebration, but none went to last year’s ceremony.”

Supreme Court Turns Away Mother Claiming New York School Bias

John Crawley, Bloomberg Law

On Monday, the “Supreme Court declined to intervene in a civil rights suit alleging that an elite New York City school admissions policy discriminates against Asian Americans,” according to Bloomberg Law. “Justice Sonia Sotomayor, acting for the court Monday, refused an injunction request by a Brooklyn woman who says her son is being excluded from Stuyvesant High School by an initiative that unfairly seeks to balance student demographics.” The woman had asked the Supreme Court to direct Stuyvesant to admit her son while her lawsuit continued.

Florence Allen Was More Than a First

Anastasia Boden, The Dispatch

In a piece for The Dispatch, Anastasia Boden highlighted a new book – “The First Woman Judge” by Tracy Thomas – on Florence Allen, who entered law school in 1909, a time when “women could not vote, many schools would not admit them, and only about 1 percent of American lawyers were women” and went on to become the first woman judge, the first woman state Supreme Court justice, and the first woman federal appellate judge. “She wrote 528 majority opinions over 25 years on the 6th Circuit and was reversed by the Supreme Court only five times on grounds the author describes as relatively minor.” Boden noted that Allen was also “the first woman shortlisted for the Supreme Court, though that nomination would elude her.”

Another Try for Religious Charter Schools

The Wall Street Journal Editorial Board (paywalled)

Last year, the Supreme Court deadlocked 4-4 in a case on St. Isidore virtual Catholic school, which had “hoped to become the country’s first religious charter school.” With Justice Amy Coney Barrett recused, the remaining justices were unable to resolve whether states may require charter schools to be non-sectarian. But last week, U.S. District Judge David Russell cleared the way for a different religious charter school, overseen by the National Ben Gamla Jewish Charter School Foundation, to open in Oklahoma, ruling that the state cannot “single out religious schools for exclusion solely because of their religious character.” The Wall Street Journal Editorial Board contended that “[t]his constitutional thicket is the same as in St. Isidore’s case, and it could use Supreme Court guidance.” “Justice Barrett,” the board noted, “didn’t explain why she recused herself on St. Isidore, but she is close friends with Nicole Stelle Garnett, a Notre Dame professor who advised the proposed school. Ms. Garnett is not involved with Ben Gamla.”

On Site

Court News

Justice Alito will no longer participate in climate change dispute

The Supreme Court on Monday announced that Justice Samuel Alito will not continue to participate in Suncor Energy Inc. v. County Commissioners of Boulder County, a significant dispute that will be argued on the first day of the 2026-27 term.

Court News

Trump administration asks justices to block lower court order on transgender inmate policy

The Trump administration on Monday asked the court to block an order by a federal judge in Washington, D.C., that bars the Federal Bureau of Prisons from enforcing a new policy on healthcare for transgender inmates. Specifically, in a reversal of the prior policy, the new policy would prohibit transgender inmates from obtaining gender-transition surgeries, hormone therapy, and “social accommodations” (such as makeup, wigs, and padding).

Court News

Immigrants ask Supreme Court to leave ruling in place preventing Trump administration from deporting them to third-party countries

Lawyers for immigrants whom the Trump administration is seeking to deport urged the Supreme Court on Monday to leave in place a ruling by a federal judge in Massachusetts that bars the government from sending them to countries that are not identified in their removal orders – a procedure known as “third-country removals.” Trina Realmuto of the National Immigration Litigation Alliance told the justices that the decision “does not prevent third-country removals; rather, it simply requires” the Trump administration “to do so lawfully.”

From the SCOTUSblog Team

The court’s summer recess that wasn’t

Since early July, the justices have received more than 30 significant interim docket applications, including several high-profile requests from the Trump administration. In response, they requested additional briefs, reviewed all these filings, and issued orders and opinions – the kind of work that was once rare from July through September.

Contributor Corner

The “born free and equal” clauses and the right to pursue a profession of one’s choice

In his Born Free and Equal column, Steven Calabresi applied the “born free and equal” clauses within the context of the economic right to pursue the line of work of one’s choosing.

A Closer Look

The Lovings

For today’s Closer Look on famous Supreme Court plaintiffs, we look at Richard and Mildred Loving, the interracial couple who successfully challenged Virginia’s anti-miscegenation law in the landmark 1967 case of Loving v. Virginia.

Mildred Delores Jeter was born on July 22, 1939, in Central Point, Virginia, a rural town in Caroline County. Her parents, Theoliver and Musial, were tenant farmers. Sources often describe her as Native American and Black (although in a 2004 interview, Loving said: “I am not Black. I have no Black ancestry. I am Indian-Rappahannock”). She grew up attending the St. Stephens Baptist Church and attended an all-Black high school until 11th grade.

Richard Loving was born in Central Point, Virginia, on Oct. 29, 1933. Loving was of English and Irish descent. His paternal grandfather, T.P. Farmer, fought for the Confederacy in the Civil War. Another paternal relative, Lewis Loving, owned seven enslaved people. Loving’s father worked on a farm owned by “a prosperous man of color,” and his mother was a midwife.

Caroline County was a racially diverse county and less than 50% white. It had been settled by a myriad of mixed-race individuals, many of whom descended from white slave owners and enslaved Black women. “There was a lot of mingling down here between the Blacks, the whites, and the Indians. Honestly, people are so mixed up down here, you can’t say what you are and are not,” said one resident.

Growing up, Loving defied Jim Crow laws and was friends with an ethnically diverse group of people. He attended an all-white high school for a year and eventually went on to become a construction worker, specializing in bricklaying.

Loving bonded with Mildred’s brothers over their mutual love of cars and music, and he met Mildred when he was 17 and she was 11. The two became friends and eventually began dating; Mildred became pregnant when she was 18. They planned on getting married, but faced a problem: under the Racial Integrity Act of 1924, interracial marriage was outlawed in Virginia.

Nevertheless, the two could legally marry in Washington, D.C., which was about 80 miles north of Central Point. In June 1958, the couple drove to the nation’s capital and exchanged vows in a pastor’s home. They then returned to Virginia, where interracial marriage remained illegal.

A month or so into their marriage, law enforcement arrested the couple for violating the Racial Integrity Act via an anonymous tip. “They asked Richard who was that woman he was sleeping with,” Mildred Loving said in an interview. “I said, ‘I’m his wife,’ and the sheriff said, ‘Not here you’re not.'” The two were briefly held in a jail in Bowling Green, Virginia.

In January 1959, the Lovings, who had pleaded not guilty, went to trial. However, after both sides had presented their evidence, the Lovings changed their pleas to guilty. They were given a one-year sentence, which was suspended on the grounds that they would leave Virginia for 25 years. For the next few years, the Lovings lived in Washington, D.C., in Mildred’s cousin’s house.

Out of a dislike for urban life and a longing to return to rural Virginia, Mildred wrote a letter to Attorney General Robert F. Kennedy in 1963. “I told Mr. Kennedy of our situation” and asked “if there was any way he could help us,” Mildred said in an interview conducted after the case. Kennedy told Mildred that he was unable to help her directly, but connected her with the American Civil Liberties Union, which assigned Bernard S. Cohen, a volunteer attorney, to the case.

Cohen filed a motion to vacate the conviction, but the trial judge declined to do so. The Virginia Supreme Court, in 1966, then upheld the legality of the anti-miscegenation law.

The Lovings appealed their case to the Supreme Court. Oral arguments, which the Lovings declined to attend, were held in April 1967. In June 1967, the Supreme Court unanimously ruled that anti-miscegenation laws were unconstitutional. “To deny [a] fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law,” wrote Chief Justice Earl Warren in his majority opinion. On the day the opinion was released, Mildred said, “I feel free now.”

The Lovings moved back to Central Point and Richard built a brick house for the family. They ultimately had three children together. Tragically, in 1975, the Lovings were hit by a drunk driver while in the car together. Richard died on the scene and Mildred lost an eye in the accident.

Mildred never remarried and remained out of the public eye for much of the remainder of her life. However, in 2007, she released a statement announcing her support for the legalization of same-sex marriage. She died in 2008 from pneumonia.

SCOTUS Quote

MS. WINFREE: “Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.”

JUSTICE SCALIA: “Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too.”

— Maryland v. King (2013)

The filing came four days after U.S. Solicitor General D. John Sauer asked the justices to pause Murphy’s order – the third time that he has asked the court to get involved in the dispute. Sauer contended that Murphy’s order deprived the government of “an essential tool to remove certain aliens, including some of the worst criminal aliens,” and he argued that it “rests on the same fundamentally flawed legal premises as the previous rulings.”

The legal battle over third-country removals began shortly after President Donald Trump’s inauguration for a second term, when he signed an executive order in which he directed the Department of Homeland Security to take “all appropriate actions” to remove noncitizens who were in the United States despite having orders to deport them.

Within weeks, DHS issued internal guidance instructing a division of U.S. Immigration and Customs Enforcement to determine whether undocumented immigrants who had received deportation orders but had not yet been removed because of the prospect that they would be tortured if they were returned to their home countries could instead be sent to a different country. Additional guidance issued the following month indicated that before immigrants can be sent to a country that is not specifically identified in their removal orders and that has not assured the United States that the immigrants will not face torture, DHS must follow a series of procedures: It must notify the immigrants of the planned removal, give them a chance to “affirmatively express” fear that they will face torture, and – if needed – conduct a screening to determine the likelihood that they will indeed be tortured.

In March, four immigrants with removal orders filed a lawsuit in Massachusetts, where they argued that they feared being deported to a country that was not identified in their orders.

Murphy issued an order that prohibited the government from deporting the plaintiffs and others like them to third countries without first providing them with written notice of the third country to which they might be removed, as well as a “meaningful opportunity” to challenge that removal. Moreover, Murphy added, DHS should also determine whether the immigrants’ fears of torture were “reasonable,” rather than whether it is “more likely than not” that they will be tortured. If immigrants cannot make that showing, Murphy added, DHS must give them at least 15 days to seek to reopen their immigration proceedings.

Sauer went to the Supreme Court for the first time in May 2025, asking the justices to put Murphy’s order on hold while the government’s appeal moved forward. Over a dissent by Justice Sonia Sotomayor that was joined by Justices Ketanji Brown Jackson and Elena Kagan, the court on June 23 granted that request.

Sauer returned to the court for the second time one day later, asking the justices to “clarify[]” that, in the wake of their first order, the Trump administration could deport eight men being held on a U.S. military base in Djibouti after Murphy had ruled that efforts to remove them to South Sudan violated his order.

On July 3, the court issued a brief opinion in which it indicated that its June 23 order paused Murphy’s order “in full” – and also applied to his later order regarding the South Sudan deportations. Kagan wrote a brief concurring opinion, in which she indicated that although she disagreed with the court’s decision to pause Murphy’s order, she did “not see how a district court can compel compliance with an order that this Court has stayed.” Sotomayor again dissented, joined by Jackson.

Once the case returned to his court, Murphy in February 2026 issued a final judgment in the immigrants’ favor and threw out the third-country removal policy. He ruled (among other things) that before immigrants can be removed to a third country, they have the right to “meaningful notice” and a “meaningful opportunity” to contest removal to that third country on the ground that they have a reasonable fear of being persecuted or tortured there.

On Sept. 18, the U.S. Court of Appeals for the 1st Circuit largely upheld Murphy’s ruling, and on Wednesday it dissolved a March 16, 2026, order that put Murphy’s ruling on hold while the government appealed.

The Trump administration returned to the Supreme Court again on Thursday afternoon, asking the justices to step in for the third time. Sauer told the justices that the reinstatement of Murphy’s order has “created substantial logistical problems with ongoing removal operations—including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals.”

In their brief on Monday opposing a stay of Murphy’s ruling, the immigrants contended that the Trump administration’s arguments “ignore the significant harm resulting from deporting thousands of longtime U.S. residents, many with no criminal history, to third countries without regard to the persecution or torture they face there.” Immigrants who have been deported “without meaningful notice or an opportunity to present” claims about what could happen in the particular countries to which they would be sent, they wrote, “have faced prolonged and arbitrary detention, beatings and sexual assault, disappearance,” and have been sent from those countries “to countries from which the United States had already granted them protection. These harms cannot be undone.”

By contrast, the immigrants argued, the harms that the Trump administration claims will occur if Murphy’s order is allowed to remain in place “are neither irreparable nor caused by” his decision: he does not require the Trump administration to release immigrants from detention, “prohibit third-country removals, or undo existing arrangements.” The government, they said, “can avoid any resulting delays by timely providing the notice and opportunity to be heard that the law requires.”

Scott Harris, the clerk of the Supreme Court, revealed Alito’s last-minute recusal in a short letter to advocates involved in the case. Harris’ note does not provide an explanation for the decision, saying simply that “Justice Alito has determined that he will not continue to participate.”

In Suncor Energy, the court is considering the use of state-level tort claims to hold oil and gas companies financially liable for their alleged role in exacerbating climate change. The case involves officials in the Boulder, Colorado, area, but it is likely to have nationwide ramifications, because similar lawsuits have been filed in states across the country.

In May, a coalition of left-leaning watchdog groups urged the Senate Judiciary Committee to investigate Alito’s involvement in the dispute, contending that his “substantial holdings in individual oil and gas companies,” among other issues, would “undermin[e] public confidence in the impartiality of the Court.” They stated that Alito had “previously recused from considering a petition brought by” the same companies involved in Suncor Energy. “There is no apparent reason for this change in Justice Alito’s recusal practices, and Alito provided no statement justifying his failure to recuse,” the groups wrote.

At the time, a Supreme Court spokeswoman told NBC News that “Justice Alito does not have a financial interest in any party” and that he had been advised that “recusal is not required” by the Supreme Court’s legal counsel.

Under the Supreme Court’s code of conduct, which the justices issued in November 2023, justices are required to recuse themselves from “a proceeding in which the Justice’s impartiality might reasonably be questioned.” The code defines this as a situation in which “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” The code of conduct notes that this includes cases in which a justice “has a financial interest in the subject matter in controversy or in a party to the proceeding.”

Justices are not required to explain why they are recusing themselves, although they sometimes do, especially when the recusal stems from “prior … judicial service” – that is, the justice worked on the case at an earlier point in the proceedings.

Nevertheless, the lack of explanation in Monday’s letter is still somewhat notable given the amount of detail provided when Harris announced in January – less than a week before oral argument – that Alito would not continue to participate in Chevron USA Inc. v. Plaquemines Parish, Louisiana, a dispute over the circumstances in which a federal contractor can transfer a case from state to federal court that also involved oil and gas companies. Harris pointed to Alito’s “financial interest in ConocoPhillips, the parent corporation for Burlington Resources Oil and Gas Company.” Harris explained that “Justice Alito initially decided not to recuse because on June 2, 2025 Burlington was dismissed as a petitioner in this Court under Rule 46.1 after Burlington advised the Court by letter that it was ‘withdrawing’ from the petition and that ‘neither Burlington Resources nor ConocoPhillips will be a party to (or have any other involvement in) the above-referenced case.’ Later briefing, however, noted that Burlington remained a party in the district court.”

The policy, which was adopted in February 2026, was the successor to a policy that was adopted in February 2025 to implement an executive order signed by President Donald Trump shortly after his second inauguration. That order instructed the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

When it adopted the February 2026 policy, which the BOP said that it did “independently of [the] Executive Order,” the BOP also provided an extensive administrative record and a 43-page memorandum in which it indicated that its change in policy was due to, among other things, “the latest scientific information,” because earlier policies had relied on recommendations by the World Professional Association for Transgender Health – a group, it said, whose standards had been deemed “unreliable” and “unpersuasive” by prison administrators. Moreover, the BOP said, it was concerned that providing access to gender-affirming care could subject transgender prisoners to “attacks,” “raise fairness concerns,” and “breed resentment among other inmates.”

Three transgender inmates sought to file a class action lawsuit in federal court in Washington, D.C. The case has a complicated procedural history, but Senior U.S. District Judge Royce Lamberth issued the most recent order barring the BOP from implementing its 2026 policy on Aug. 26, and a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s request to pause Lamberth’s order.

U.S. Solicitor General D. John Sauer came to the Supreme Court on Monday morning, asking the justices to intervene. Sauer emphasized that in blocking the policy, the district court “substitute[d] its own policy judgment for that of the” BOP, “rel[ied] on evidence outside the administrative record, and fault[ed] the agency for following presidential directions.” Moreover, he added, Lamberth “also denied prison administrators the substantial deference they are due.”

If Lamberth’s order is not put on hold, Sauer continued, the government will suffer permanent harm – another factor that courts continue in deciding whether to award emergency relief – because it “interferes with” prison “administrators’ ‘expert judgment’ on how best to operate federal correctional facilities across the Nation.”

The court has asked the challengers to respond to the Trump administration's request by 4 p.m. EDT on Thursday, Oct. 8.

Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

***

In my initial articles, I argued that the “born free and equal” idea is deeply rooted in American history and tradition. I then applied the “born free and equal” clauses within the context of abortion prohibitions, same-sex marriage, and eugenics laws. I argued that laws against abortion, the right to have a gun in one’s home, and the right to civil marriage are “deeply rooted” in longstanding American tradition and history.

Today, I want to cover a right that gets a good deal less attention but is fundamental: the right to pursue one’s profession or livelihood. Indeed, this economic right is as vital to a free society as the rights to freedom of expression and of religion.

As an initial matter, the mere wording of the “born free and equal” clauses imply a freedom to choose one’s occupation. Taking just the Massachusetts Constitution of 1780 (quoted above), how can one meaningfully be said to have “the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness” if that person cannot enter the profession of their choice when qualified to do so?

Beyond its textual framing, the right to choose one’s occupation can also be grounded in more originalist terms. As I argued in prior pieces, privileges or immunities, or substantive due process rights, must be deeply rooted in American history and tradition. At the same time, such rights can be trumped where there is a “just” law “for the benefit of the whole [people].”

In the landmark 1823 case of Corfield v. Coryell, which I have explained is the 14th Amendment’s version of the “born free and equal” clauses, Justice Bushrod Washington stated that one right that is deeply rooted in American history and tradition is the “[t]he right of a citizen of one state to pass through or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise.” This right is deeply rooted in Founding Era state bills of rights in 1791.

For example, the Founding Era Pennsylvania Declaration of Rights of 1776 specifically provided that:

Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or sett [sic] of, men, who are a part only of that community, …

Almost identical clauses appear in four other Founding Era state declarations of rights, being Massachusetts, New Hampshire, Virginia, and Vermont. Additionally, two southern states, Maryland and North Carolina, prohibited the granting of all monopolies whatsoever in their state constitutions. In 1791, of the 12 states that had adopted new constitutions rather than retaining their colonial charters (as did Connecticut and Rhode Island), seven out of 12 – a majority in all the most populous states – forbade special laws for the benefit of monopolists of a whole profession.

***

Which brings us to the 1955 case of Williamson v. Lee Optical Co. Williamson arose after Oklahoma made it illegal for any person not a licensed optometrist or ophthalmologist to duplicate or replace broken eyeglasses without a written prescription from such a professional. This had the effect of putting opticians, like the Lee Optical Company, out of business, since such opticians provided people with new glasses by simply reading off the prescription on their old pair of glasses, thus saving customers a good deal of money.

Oklahoma justified its law by stating that it was desirable to incentivize people to keep their eyeglass prescriptions up to date. This contrasted with states like Rhode Island, which require that everyone who renews their driver’s license every five years to swear under penalty of perjury that they have seen an eye doctor and have had their glasses prescription updated. (And saves those of us, like me, from having to pay a hefty bill for an eye doctor if we break our old glasses several times within a five-year timespan.)

The Supreme Court sided with the eye doctors. According to a unanimous court, “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”

This view was (and is) mistaken, and in direct contrast with the Framing Era’s “common benefit” and anti-monopoly clauses (as well as the widespread anti-monopoly sentiments in 1868 when the 14th Amendment was written). As the Pennsylvania constitution stated, “Government is or ought to be instituted for the common benefit … not for the particular emolument or advantage of any single man, family or set of, men, who are a part only of that community.”

The Oklahoma law was a mere special-interest regulation to boost the revenue of eye doctors while putting opticians out of business. As Rhode Island demonstrates, its goal of incentivizing drivers to update their prescriptions could have been pursued by less restrictive means.

Today, thanks partly to Williamson, occupational licensing laws affect more than 20% of all workers in the United States. This includes over 100 professions, such as: barbers, cosmologists, tanning-salon owners, masseuses, shoe-shine workers, dry cleaners, or florists. As should be obvious, many of these occupations are safe enough to not require occupational licensing. Other professions – such as plumbers and electricians – often control their licensing body so as to ratchet up the price and availability of their services.

And even if occupational licensing is appropriate for plumbers and engineers (as it is for doctors, pilots, lawyers, and others), it cannot be done so restrictively that it does not license enough applicants to serve the public’s needs at a reasonable price.

For this reason, many western democracies like Germany, Japan, Brazil, South Africa, and Israel create a right to occupational freedom in their bills of rights, which they enforce vigorously in their case law.

***

I do not take issue with the court’s adoption of the rational basis test for most unenumerated rights, including as to economic regulations. But occupational licensing is an exception given the “common benefits” clauses in a large majority of state declarations of rights in 1791; the explicit recognition in Corfield v. Coryell of a right to pursue a profession of one’s choice; and the very nature of the “born free and equal” clauses.

Indeed, the economic right to pursue a line of work is just as fundamental a freedom as that of expression, religion, and unreasonable searches and seizures. The line between protecting personal but not economic liberty in such circumstances makes little sense and is neither deeply rooted in American history and tradition, nor even in current-day practice. Changing this would require the court to revisit long-standing precedent, but it is long past time that it did so.

Nearly three months later, we know the answer: not so much.

Since early July, the justices have received more than 30 significant interim docket applications, including several high-profile requests from the Trump administration. In response, they requested additional briefs, reviewed all these filings, and issued orders and opinions – the kind of work that was once rare from July through September.

Election-related action

Much of the justices’ summer work stemmed from election-related conflicts, including challenges to President Donald Trump’s efforts to restrict mail-in voting and verify state voter rolls ahead of the midterm elections in November. This category also includes the major dispute over redistricting in Missouri, which came to the interim docket three times over the past month.

The Missouri dispute began last year, when Republican leaders in the state adopted a new congressional map expected to favor candidates from their party. In December, opponents of the new map, including the group People Not Politicians and its executive director, Richard von Glahn, submitted more than 300,000 signatures in support of a petition that would require lawmakers to put the map up for a vote in the 2026 midterm elections. Eight months later, in August, Denny Hoskins, Missouri’s secretary of state, rejected the petition, clearing the way for Missouri to use the new map for its August primaries.

Von Glahn challenged Hoskins’ decision in state court, and on Sept. 3, the Missouri Supreme Court agreed with von Glahn that the referendum petition should appear on the November ballot and that November’s elections should be conducted using the old map. Hoskins asked the Supreme Court to put the state supreme court’s ruling on hold, but Justice Brett Kavanaugh, who has initial responsibility for emergency appeals from the region that includes Missouri, denied that request on Sept. 8.

But it wasn’t over. Moments after Kavanaugh announced his decision, a federal judge in Missouri weighing a separate but related case brought by a group of candidates and voters who support the 2025 map ordered the state to use that new map in November. After the U.S. Court of Appeals for the 8th Circuit declined to stay that order, von Glahn and People Not Politicians urged the Supreme Court to again weigh in. On Sept. 10, the justices granted their request to prevent Missouri from using the new map.

The next week, the 8th Circuit heard argument in the map dispute, and, on Sept. 21, held that using the old map in November would violate the Constitution. The next day, von Glahn and People Not Politicians asked the Supreme Court to put that ruling on hold. On Friday, the Supreme Court did so, with no public dissents. “The election is not merely upcoming; it has already started. Ballots using the 2022 map have been printed and mailed,” the brief, unsigned opinion said. “At this late date, ordering reversion to the 2025 map in the midst of an ongoing election would usher in electoral chaos.”

Like Missouri redistricting, disputes related to Trump’s executive order on election integrity also came before the court several times this summer. The order, which the president signed in March, outlines a range of policies, but the interim docket disputes focused on instructions related to how the U.S. Postal Service deals with mail-in ballots.

The Supreme Court first weighed Trump’s guidance on mail-in voting in August and determined, by a vote of 6-3, that states challenging the order itself had filed their lawsuit too soon, because this directive had not been put into effect.

The USPS then issued its rule for mail-in voting, which became the center of the litigation. A federal judge in Boston barred the USPS from implementing new requirements for the envelopes used to mail ballots and for voter tracking, and on Sept. 14, the Supreme Court, by a vote of 7-2, left her decision in place, essentially ensuring that new mail-in voting restrictions won’t go into effect before November’s elections.

In a related dispute, the justices considered a second executive order on election integrity, which, among other things, directed the Department of Homeland Security and the Social Security Administration to create systems that would allow state and local governments to verify the citizenship status of voters. In response to the order, DHS and the SSA overhauled the Systematic Alien Verification for Entitlements database, known as the SAVE system, to serve this purpose.

The League of Women Voters and the Electronic Privacy Information Center challenged the changes to the SAVE system in federal court in Washington, D.C., contending that the administration had violated a number of federal laws, including the Social Security Act. A federal judge agreed with them, and the U.S. Court of Appeals for the District of Columbia Circuit declined to pause her order barring the government from using the modified SAVE system.

On Sept. 8, the Trump administration asked the Supreme Court to put the lower-court ruling on hold and allow the government to use the voter eligibility database. The court, by a vote of 6-3, granted that request on Friday, concluding that the claims made by the challengers “likely lack merit.” Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan.

In addition to these applications on the Trump administration’s voting policies and Missouri’s maps, the Supreme Court this summer addressed several lower-profile election-related filings, involving everything from which candidates or proposals will appear on ballots in November to the cost of running political ads.

Additional requests from the Trump administration

The Trump administration brought more than election-related disputes to the interim docket this summer. It also asked for – and received – relief in an ongoing conflict over construction of a new White House ballroom, as well as urged the justices to address a case on deporting noncitizens to countries not included on their removal orders for a third time.

The ballroom battle began last fall, when the Trump administration tore down the East Wing of the White House to make room for a new, 90,000-square-foot ballroom. The National Trust for Historic Preservation, a private nonprofit dedicated to “sav[ing] places where our history happened,” sued to block construction, contending, among other things, that the project had not been authorized by Congress.

In March, Senior U.S. District Judge Richard Leon issued an order temporarily blocking above-ground elements of the project, including construction of the ballroom. In early August, the D.C. Circuit upheld Leon’s ruling, concluding that Congress “has exclusive authority to regulate the construction and demolition of White House structures.” Leon’s order never went into effect, however; the D.C. Circuit first paused it while considering the Trump administration’s appeal and then put its own ruling on hold for 14 days to give the administration time to go to the Supreme Court, allowing construction to continue throughout the process.

On Aug. 13, the administration did so, asserting that Leon’s order was “extraordinary and unlawful” and that the ballroom project served national security interests. It further argued that the National Trust for Historic Preservation had no legal right to sue, because none of its members had suffered the sort of injury that would give it standing.

Just before the order blocking above-ground construction was set to go into effect, Chief Justice John Roberts on Aug. 21 issued an administrative stay, preserving the status quo while the court continued weighing the case. Ten days later, by a vote of 5-4, the court paused the lower-court ruling, holding that the National Trust for Historic Preservation likely lacked standing to challenge the ballroom project. Roberts wrote a dissenting opinion, joined by the court’s three Democratic appointees, describing the decision as “no victory for the separation of powers.”

An application on deportations to third-party countries is still pending, as it was just filed on Thursday. The Trump administration has asked the court to pause a lower-court ruling preventing the government from deporting noncitizens to a country not identified on their removal orders without first notifying the noncitizens of the plan and giving them a “meaningful opportunity” to raise concerns about being persecuted or tortured there.

At an earlier stage in the case, the Supreme Court granted the administration’s request to put a similar order on hold and then, in a follow-up order, allowed it to move forward with the deportation to South Sudan of eight men being held on a U.S. military base in Djibouti.

Other memorable applications

In addition to serving as a reminder that the court’s summer recess often is a recess in name only, some of this summer’s filings raised awareness of just how diverse the interim docket has become. These unique filings did not come from the Trump administration, state officials, or political candidates, and did not address upcoming executions or a policy change. Instead, they invited the Supreme Court into a high-profile surrogacy dispute and a months-long battle over the fate of a dog.

The surrogacy-related emergency application came from McKenna West, an Alaska woman who served as a surrogate for a California couple, Nausheen Gilkar and Omar Ahmed. During the pregnancy, the fetus was diagnosed with a serious cardiac defect, and the couple asked West if it was possible to have an abortion, according to West’s application. West states that she objected and moved to Texas, which highly restricts abortion access. The baby was born there on Aug. 12.

West’s interim docket application stemmed from a complex custody battle involving multiple rulings from multiple states. She specifically asked the Supreme Court to pause a California court order that recognized Gilkar and Ahmed as the baby’s parents and that was preventing her from being involved in the baby’s medical care.

Justice Elena Kagan, who handles emergency applications from the region including California, received West’s application on Sept. 9 and called for a response two days later. On Sept. 22, she denied West’s request without comment and without referring the matter to the full court. Unlike most orders from a single justice, Kagan’s decision was widely covered by the media, likely because the overall dispute had been in the headlines.

Another filing to receive a seemingly outsized share of media attention addressed a 3-year-old dog named Bruce. Bruce’s owner and an animal rescue group asked the justices to ensure Bruce would remain alive while a challenge to a plan to euthanize him because of several violent incidents continued. However, he was killed before the Supreme Court could weigh in. (Kagan ultimately denied the request to save Bruce the next day.)

Looking ahead

Now that the summer recess is essentially over – the justices meet for their “long conference” on Monday and the first arguments of the 2026-27 term are just one week away – life at the Supreme Court will go from busy to busier. Over the next month, the justices will hear six arguments, hold two more conferences, and grant several cases while continuing to manage the interim docket.

At the Court

On Friday, the Supreme Court cleared the way for the Trump administration to use a modified version of the Department of Homeland Security’s Systematic Alien Verification for Entitlements database to identify noncitizens on state voter rolls. Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan. For more on the decision, see the On Site section below.

Also on Friday, the Supreme Court, for the third time, declined to allow Missouri to use a congressional map expected to aid Republicans in November’s elections. There were no public dissents. Learn more about the decision in the On Site section.

On Thursday, the Trump administration asked the Supreme Court to intervene in a battle over third-country removals – that is, the removal of noncitizens to countries not identified in their removal orders. A response to that request is due today by 4 p.m. EDT.

As noted above, the justices will meet today at the “long conference,” where they will consider petitions for review that built up during the court’s summer recess.

Morning Reads

NYC’s high school affirmative action policy challenged in Supreme Court

Stephen Dinan, The Washington Times (paywalled)

Last week, a New York City mother, Yi Fang Chen, “asked the Supreme Court to step in and order her son be allowed to take a seat at the selective Stuyvesant High School, saying he’s being blocked by affirmative action policies that punish him for being Asian American,” according to The Washington Times. “Stuyvesant generally offers admissions based strictly on the results of an exam, but it allows some students to enter based on its ‘Discovery Program,’ which applies to economically disadvantaged students whose test scores are close but below the cutoff line.” After an update to Discovery Policy program rules in 2018, “Discovery seats went from about 3% of enrollment to 20%, and the program was limited to certain middle schools,” Chen asserts, contending that race drove the changes. Chen claims that, by taking more spots at the school, the updated Discovery Program kept her son, who “scored a 558 on the entrance exam, just shy of the 561 cutoff,” from being admitted. “Chen has asked the justices for an emergency ruling allowing her son to attend the school while the case proceeds.”

Jackson says all is not well on the Supreme Court emergency docket

Kelsey Reichmann, Courthouse News Service

During a Thursday speech at the University of the District of Columbia School of Law, Justice Ketanji Brown Jackson reflected on the state of the emergency docket, “describing what she viewed as corrosive harms caused by the high court’s current use of quickly issued and often unexplained orders to decide controversial cases,” according to Courthouse News Service. “Our modern methods are not serving the court or the country well,” she said. “I hope it’s also clear why I adamantly reject any effort to normalize a process whereby the Supreme Court actively superintends matters that are pending in the lower courts.” Jackson spoke about the interim docket as a whole rather than “one specific decision,” asserting that “the court wasn’t adhering to a consistent set of standards for all applications.” “If we’re not careful, the emergency docket can and will become an end-run around the standard review process, a special avenue that certain privileged litigants can use selectively,” Jackson said.

Appeals Judge Says Justices’ Emergency Orders Can Lack Guidance

Jordan Fischer and Justin Wise, Bloomberg Law

During a Saturday event hosted by William & Mary Law School, Judge David Stras of the U.S. Court of Appeals for the 8th Circuit “said the Supreme Court is sometimes placing lower courts in uncertain positions by issuing emergency orders with too little explanation,” according to Bloomberg Law. “They release these short orders that are sometimes really unclear to the circuit courts,” said Stras, who recently sat on the 8th Circuit panel that considered the dispute over redistricting in Missouri. However, Stras added that the Supreme Court is “often in a hard position,” because there are often “good reasons for writing more or writing less. “I don’t know where the happy medium is.” Stras explained that “it would’ve been ‘incredibly helpful’ in the Missouri case for the justices to explain what, if anything, was left for the lower courts to decide after the Supreme Court stayed an order directing the state to use a redrawn map favoring the GOP earlier this month.”

Appeals court rules that states can regulate Kalshi’s sports prediction markets, dealing another legal blow to platforms

Davis Giangiulio, CNBC

On Friday, the U.S. Court of Appeals for the 6th Circuit ruled “that states have a right to regulate sports-related event contracts on prediction market platforms, marking a second major legal defeat for the industry as a fight at the U.S. Supreme Court looms,” according to CNBC. The platforms also lost before the U.S. Court of Appeals for the 9th Circuit, which “ruled last month that Nevada has a right to regulate sports-related event contracts.” “Meanwhile, the 3rd U.S. Circuit Court of Appeals ruled against New Jersey in April and said the” Commodity Futures Trading Commission, a federal agency, “has the exclusive right to regulate” the prediction markets’ offerings. “New Jersey appealed that decision in a petition to the Supreme Court earlier this month. It is not clear whether the Supreme Court will take up the case now, or wait until further decisions from circuit courts on the issue of sports-related event contracts are delivered.”

The Most Likely Avenue for Supreme Court Reform

Simon Lazarus, The New Republic

In a column for The New Republic, Simon Lazarus reflected on the surge in interest among Democrats in Congress to reform the Supreme Court and explained why he believes they should focus their reform efforts not on adding justices or imposing term limits but, instead, on “enacting a sensible but enforceable code of ethics for Supreme Court justices.” According to Lazarus, “[s]uch a proposal is eminently defensible on the merits. Supreme Court justices are the only officials in the federal government, including all lower court federal judges, who are not subject to a meaningful code of conduct. Substantial popular majorities, including multitudes of Republicans, support legislation to plug that gap.”

On Site

Court News

Supreme Court clears way for Trump administration to use modified voter verification database

The court on Friday cleared the way for the Trump administration to move forward with its plan to use a modified centralized database to verify voters’ citizenship. In a seven-page opinion, the justices paused a ruling by a federal judge in Washington, D.C., that had blocked the government from doing so on the ground that it violated (among other things) federal privacy laws.

Court News

For the third time, Supreme Court declines to allow Missouri to use congressional map expected to aid Republicans

The court on Friday declined to allow Missouri to use a new congressional map, intended to benefit Republicans, in the November 2026 elections. In a five-page, unsigned order, the justices paused a ruling by a federal appeals court in St. Louis that had directed the state to implement the new map.

From the SCOTUSblog Team

The funniest justice of the 2025-26 term

The results of Nora Collins’ laugh analysis for the 2025-26 term won’t come as a surprise if you read her laughter project last year. Justice Neil Gorsuch retained his title as the funniest justice, earning far more laughs than any of his colleagues.

From the SCOTUSblog Team

The High Court of Australia

For SCOTUSblog’s series on different supreme courts around the world, Zach spoke with Cheryl Saunders of Melbourne Law School about the High Court of Australia.

A Closer Look

The Long Conference

We may still be one week away from the first Monday in October – the official start of a new Supreme Court term – but today will be a busy one at One First Street, as the justices come together at their annual “long conference” to consider petitions for review that accumulated during the court’s summer recess.

Why is it called the long conference? Because there’s a lot of work to do. Roughly 2,000 petitions are assigned to this conference each year, and most of their fates will be decided by the end of today’s meeting.

To be clear, they don’t go one by one down a list of 2,000 cases during the long conference. Instead, as Amy noted in a story last year, the justices only consider the petitions that one or more of them have flagged for the “discuss” list – the list of cases the justices will actually talk about and vote on – after hearing from clerks about which petitions may warrant Supreme Court review. The petitions that don’t make it through this screening process are essentially denied before the long conference even begins.

Still, there will be much to discuss at today’s meeting, and, if recent years are any indication, several petitions will be granted. Over the past three terms, the court has taken up between five and 15 long conference petitions for argument.

We have highlighted nine disputes in this newsletter that the court will potentially take up, including petitions asking whether schools may ban students from wearing “Let’s Go Brandon” sweatshirts, what types of discovery orders are appropriate in lawsuits over access to government information, and how the Eighth Amendment’s ban on “cruel and unusual punishments” applies in the context of sentencing juvenile offenders to life in prison without the possibility of parole. We’ve featured other long conference petitions in articles on cases brought to the court by the Trump administration.

If the court follows its traditional routine, we will learn the fate of most of these and other long conference petitions within the next week. For the past three years, the court has released a list of the cases granted during the long conference on the Friday after the conference took place. Then, on the following Monday, the court has issued an order list with the many, many petitions that were denied. In other words, this year, we’re watching for a list of grants on Friday, Oct. 2, and an order list next Monday, Oct. 5, the first day of the 2026-27 term.

The justices’ next private conference – which will involve a smaller group of petitions – is set to take place on Friday, Oct. 9.

SCOTUS Quote

JUSTICE SCALIA: “There seems to be a rational line between collateral attack and attack in the same proceeding. I don't see anything irrational about that. Right?”

MR. CATTANI: “No –”

JUSTICE SCALIA: “Yes!”

MR. CATTANI: “Yes, I agree. Yes.”

— Martinez v. Ryan (2011)

In Friday’s opinion, which was released to reporters shortly before 6 p.m. EDT, the court emphasized that the federal district and appeals courts “should not enjoin or otherwise prohibit the use of the” map enacted in 2022, which is currently in use in voting already underway, “in the 2026 congressional election in Missouri.” Moreover, the court added, those courts “should not order or otherwise require Missouri to use the” new map “in the 2026 congressional election in Missouri.”

There were no public dissents from the Supreme Court’s opinion.

The dispute began in September 2025, when Missouri adopted a new map that was intended to give Republicans an additional seat in the U.S. House of Representatives. On Dec. 9, opponents of the state’s new map – including the group People Not Politicians and its executive director, Richard von Glahn – submitted more than 300,000 signatures in support of a petition to put the new map up for a vote on the ballot in the November 2026 general election. Secretary of State Denny Hoskins, Missouri’s top election official, rejected the petition on Aug. 4, 2026 – the last day to do so – and the state conducted its August primary with the new map.

Von Glahn then went to state court, asking it to reverse Hoskins’ decision and prohibit Missouri from using the new map in the November elections. In a unanimous decision on Sept. 3, the Missouri Supreme Court did just that. Under the Missouri Constitution, it held, the referendum petition “was legal, sufficient, and timely.” As a result, that court said, the new map never went into effect and will not do so “unless and until approved by the voters at the November 2026 general election.”

The dispute made its first trip to the Supreme Court on Sept. 4, when Hoskins asked the justices to put the state supreme court’s ruling on hold. Justice Brett Kavanaugh, who has initial responsibility for emergency appeals from the geographic area that includes Missouri, denied Hoskins’ request four days later without referring it to the full court.

Also on Sept. 4, Rep. Robert Onder, a Republican who won the Republican nomination for the state’s 3rd congressional district in the August 2026 primary, as well as another congressional candidate and two individual voters, filed a lawsuit in federal court in St. Louis, seeking to revive the 2025 map. Onder and the other candidate – Richard Brattin, who won the Republican nomination for the state’s 5th congressional district in August – contended that if the state were to use the previous map, from 2022, in the November elections, their districts would be significantly different from the districts in which they won the nominations in the August primary elections. The individual voters similarly argued that they would vote in a different district in November under the 2022 map than they had in August.

Shortly after Kavanaugh turned down Hoskins’ request to pause the Missouri Supreme Court’s ruling, Chief U.S. District Judge Stephen Clark issued an order that directed the state to use the 2025 map. Clark wrote that although “[c]onducting state elections in accordance with the Missouri Constitution undoubtedly qualifies as an important interest,” Onder and the other plaintiffs would “face irreparable harm” without a temporary restraining order “because many Missouri voters would have to cast their general-election votes for candidates whom they had no role in nominating.”

The dispute arrived at the Supreme Court for the second time on Sept. 9, when von Glahn and People Not Politicians asked the justices to intervene and pause the district court’s order. The next day, within minutes after Hoskins filed his brief opposing a stay of Clark’s order, the Supreme Court – in a brief, unsigned order – did so, putting Clark’s order on hold “pending the disposition of the appeal in the United States Court of Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought.”

The dispute then returned to the lower courts, where the 8th Circuit expedited the appeal by von Glahn and People Not Politicians. That court heard oral arguments on Sept. 17 and issued a decision upholding Clark’s order on Sept. 21. The court of appeals also directed Clark to enter a permanent order requiring the state to use the 2025 map, but also to put that order on hold until 5 p.m. CDT on Sept. 28 to give the Supreme Court time to weigh in.

People Not Politicians and von Glahn came back to the Supreme Court – the dispute’s third trip there –on Sept. 22. They asked the justices either to “clarify” that the court’s Sept. 10 order pausing Clark’s order “means what it says” or, alternatively, put the 8th Circuit’s Monday ruling on hold. The court should do so, they argued, because the Supreme Court’s orders “are not invitations for a lower court to repackage the same relief and try again.” It is too late, they continued, to revive the 2025 map, because the state has already sent out ballots to military and overseas voters, and Sept. 22 was the deadline for election officials to “print and make available absentee ballots.”

Missouri and the individual plaintiffs supporting the 2025 map countered that People Not Politicians and von Glahn do not have a legal right, known as standing, to pursue their appeal. Among other things, Missouri pointed to the Supreme Court’s 2013 decision in Hollingsworth v. Perry, holding that the proponents of a California initiative to ban same-sex marriage lacked standing to defend the law’s constitutionality when the state declined to do so.

The state also pushed back against any suggestion that it is too late to reinstate the 2025 map, telling the justices that “[t]he honest truth is that the chaos injected by the Missouri Supreme Court,” which barred the state from using the 2025 map, “will remain no matter what this Court does.” “More than anything,” the state continued, “Missouri voters need stability. The Secretary [of State] respectfully believes that denying a stay—and declining to change Missouri’s congressional map for a fifth time—is the best way to promote stability.”

In its opinion on Friday granting the request from People Not Politicians and von Glahn, the court began by observing that, “as a matter of state law, the 2022 map—not the 2025 map—must be used in the 2026 congressional election.” Moreover, the court added, putting the lower courts’ most recent rulings on hold is “[c]onsistent with” the Supreme Court’s Sept. 10 order pausing Clark’s earlier decision.

But “[e]ven putting this Court’s prior orders aside,” the court continued, the lower-court rulings should also be paused because “[t]he election is not merely upcoming; it has already started.” “At this late date,” the court wrote, reverting to the 2025 map “would usher in electoral chaos.”

The court also stressed that the 8th Circuit was wrong in suggesting that using the 2025 map would be most consistent with the Purcell principle – the idea that courts should not change election rules too close to an election – because the Missouri Supreme Court was responsible for upsetting the status quo. Federal courts, the justices said, should not interfere with elections at the last minute, but states can generally make their own decisions. And here, the court emphasized, the Missouri Supreme Court was not responsible for disturbing the status quo, because it had indicated in May 2026 that “if the referendum petition was legally sufficient,” then the 2025 map would only go into effect after it had been approved by the voters.

The unsigned opinion for the majority indicated that the lower court’s order “inhibits the Federal Government’s efforts to assist state and local agencies in the proper administration of the midterm elections.”

In a dissenting opinion joined by Justices Sonia Sotomayor and Elena Kagan, Justice Ketanji Brown Jackson called Friday’s decision a “questionable interim ruling[] about two statutory provisions” that the Supreme Court “has never before interpreted.” She also contended that the majority “focuses only on the harms the Government will purportedly suffer absent a stay, disregarding the harms that the” use of the modified database “has caused, and will likely continue to cause, to lawful voters.”

The dispute dates back to late March, when President Donald Trump issued an executive order that (among other things) directed the Department of Homeland Security and the Social Security Administration to set up systems that would permit state and local governments to verify voters’ citizenship and immigration status. Those agencies then modified the Department of Homeland Security’s Systematic Alien Verification for Entitlements database, known as the SAVE system, to include the records of U.S.-born citizens, to give it access to Social Security numbers, and to allow users to conduct multiple searches simultaneously.

The League of Women Voters and the Electronic Privacy Information Center went to federal court in Washington, where they challenged the changes to the SAVE system. On June 22, U.S. District Judge Sparkle Sooknanan agreed with the challengers that the modified SAVE system violates federal privacy laws, the Social Security Act, and the federal laws governing administrative agencies, and she barred the government from using it.

Sooknanan wrote that “the federal government has knowingly trampled on the privacy rights of American citizens in a manner that threatens the sacred right to vote.” Moreover, she continued, “states have partnered with the federal government to access the database and are actively removing United States citizens from voter rolls based on inaccurate information.”

On Sept. 4, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s request to pause Sooknanan’s order while its appeal moves forward, but the court fast-tracked the appeal, directing the litigants to quickly propose a briefing schedule. The litigants subsequently agreed to postpone any briefing in that court until the Supreme Court acts on the Trump administration’s emergency appeal.

U.S. Solicitor General D. John Sauer went to the Supreme Court on Sept. 8, asking the justices to freeze Sooknanan’s ruling while the litigation continues. Sooknanan’s decision, he wrote, was an “indefensible order that threatens the integrity of upcoming elections by vacating the federal government’s authority to internally use Social Security data when fulfilling its duty to respond to requests by States to verify the citizenship of individuals for voting and other purposes.” Moreover, he argued, Sooknanan did not have the power to enter her order because the challengers do not have a legal right to sue, known as standing. Among other things, he contended, the federal government is not the source of any injury that the challengers and their members might suffer, because the SAVE system “merely notifies the States whether the federal government can confirm citizenship.”

Lawyers for the League of Women Voters and the Electronic Privacy Information Center on Sept. 15 asked the justices to leave Sookanan’s ruling in place for now. Nikhel Sus, the lawyer representing the challengers, argued that “the government has recklessly created an error-laden master citizenship database that endangers millions of Americans’ privacy and voting rights.”

The groups also insisted that, despite the government’s argument to the contrary, they have a legal right to sue. The Supreme Court’s own cases, Sus wrote, have “repeatedly recognized that a plaintiff has standing if ‘“third parties will likely react” to the government [action] “in predictable ways” that will likely cause . . . the plaintiff’s injury.’” Here, Sus continued, “‘additional voter verification and potential voter disenfranchisement is “the predictable effect of” the federal government incorrectly informing a state that an individual may be ineligible to vote.’ Indeed,” he observed, “the government concedes this is the intended effect.”

And if the federal government were correct that a provision of federal immigration law supersedes any other federal law, like the Social Security Act or the Privacy Act, that might prevent DHS from obtaining or disclosing information, Sus wrote, it would mean that DHS would have “unlimited power to vacuum up millions of Americans’ sensitive information from SSA (or any other agency) and disclose it in bulk to states however it wants.”

In its opinion on Friday morning, the majority agreed that the groups have standing to pursue their claim. One of the groups’ members is registered to vote in Louisiana, which uses the modified SAVE system, the opinion indicated; because Social Security records do not show that she is a naturalized citizen, she would have had to provide additional proof that she is a U.S. citizen, which is the kind of injury that gives her (and, as a result, the groups) a right to sue.

However, the majority continued, the challengers are not likely to prevail on the merits of their claims – an important factor that courts consider in deciding whether to award temporary relief. The majority rejected the challengers’ contention that the use of the modified SAVE system violates the Social Security Act, the Privacy Act, and the federal law governing administrative agencies. It explained that in a federal immigration law enacted in 1996, “Congress … separately and expressly authorized DHS to request and receive information relating to citizenship and immigration status from other agencies, including SSA.”

The Supreme Court has also “often granted” review (another factor in determining whether to award emergency relief), the majority wrote, “where a lower court has set aside an important federal program” – which, it appeared to suggest, the modified SAVE system is.

Moreover, the majority added, the federal government will suffer permanent harm (yet another factor that courts consider) if the district court’s order remains in place. Under federal immigration law, the majority reasoned, “the Federal Government has an obligation to respond to requests from state and local election officials seeking to verify the citizenship of voters. The order below prevents the Federal Government from using the program it believes is best suited to the task.”

The majority acknowledged that a different federal law, the National Voter Registration Act, bars state and local governments from systematically removing voters from their election rolls in the 90-day run-up to federal elections. “To be sure,” the majority wrote, “that moratorium limits the potential impact of staying” Sooknanan’s order. But if that order were to remain in place, the majority emphasized, state and local governments would still be barred from “conduct[ing] individualized inquiries, which are permitted under federal law during this period.”

Jackson rejected the majority’s interpretation of federal immigration law as authorizing the changes to the SAVE system and “displac[ing] any other statutory restrictions on the disclosure of citizenship information.” Among other things, she wrote, the government has never relied on this interpretation before. In other recent cases, she said, the Supreme Court has required a “clear statement” – not found in the provision at issue here – from Congress giving an agency such a “transformative expansion in its regulatory authority.”

Jackson conceded that the majority’s opinion “will likely have minimal short-term impact, as States will at most conduct individualized voter-roll maintenance using the modified SAVE system ahead of the November elections.” But, she continued, “the harm caused by burdening or disenfranchising even a few lawful voters outweighs the nonexistent harm that the Government experiences when it is prevented from taking an action that it likely lacks the authority to take.”

When was the High Court of Australia established?

The HCA was established in 1903, two years after Australia’s Constitution came into effect. Chapter III of the Constitution effectively requires there to be a high court, and regulates aspects of it (although implementing legislation was required).

Is the HCA an appellate body? Does it hear matters of original jurisdiction?

The HCA hears appeals from federal and state courts. The HCA also has original jurisdiction: see sections 75 and 76 of the [Australian] Constitution. The subjects of original jurisdiction in section 75 are conferred directly by the [Australian] Constitution. The subjects of original jurisdiction in section 76 may be conferred on the HCA by legislation (and some have been). All the subjects of jurisdiction in sections 75 and 76 may also be conferred on other federal courts or on state courts.

Does the HCA have the power of judicial review?

Yes, in the sense of review of legislative or executive action for consistency with the Constitution.

Let’s get a bit to the nuts and bolts. How many justices are on the HCA?

There are presently seven justices on the HCA.

How are these justices selected?

The Constitution describes justices of the HCA as “appointed by the Governor-General in Council” (section 72). In practice the attorney-general takes the lead in identifying candidates and deciding which one to appoint. Consultation might take place with the chief justice of the HCA and other judges, major law organizations, senior lawyers, etc. There is also a statutory requirement for the attorney-general to consult with attorneys-general of the [six federated] states before making an appointment (High Court of Australia Act 1978 (Cth) section 6). Once the government has made a decision, the governor-general is then “advised” to appoint that person.

Do the justices serve terms – and if so, of what length?

Justices hold office from the date or their appointment until the age of 70 (subject to early retirement or removal).

Are cases decided by a simple majority?

Cases are decided by a simple majority. If the court is evenly divided on an appeal (which sometimes, although rarely happens), the decision of the court below is affirmed. This may be due to such things as recusal, illness, or travel, or the recent retirement or death of a justice and a new one not being appointed yet. If it is evenly divided in the exercise of original jurisdiction the view of the chief justice prevails.

How is the opinion writer assigned?

There is no “opinion writer.” Each justice writes her/his own judgment, although there is some coordination through informal consultations of various kinds.

If each justice writes, how do the litigants determine what the majority holding is?

If there is no single majority set of reasons, readers need to compile the majority view from multiple judgments.

Is there a tradition of concurrences or dissents on the court?

Both are familiar (although the terminology of “concurrence” is less likely to be used). There are some cases in which all justices join in a single set of reasons, but it is more usual for some to agree (with reasons of their own) and some to dissent. The judgments are published in order of seniority on the court, beginning with that of the chief justice.

What were some major issues recently decided by the HCA?

Issues of possible comparative interest decided by the HCA within the last year or so include:

• The rejection of a novel common law defense to commonwealth officer liability for false imprisonment in unlawful immigration detention where officers were acting consistently with what then had been held to be the law: Abdel-Hady v Commonwealth [2026] HCA 17;
• Invalidity of a regulation that authorized monitoring and curfew conditions to be imposed on categories of unlawful non-citizens without judicial process, inconsistently with the constitutional separation of judicial power: EGH19 v Commonwealth [2026] HCA 7;
• Invalidity of State electoral funding provisions on the ground of inconsistency with the implied constitutional freedom of political communication: Hopper v State of Victoria [2026] HCA 11; and
• Invalidity of a Northern Territory determination prescribing housing rents in remote communities without according procedural fairness to tenants: Badari v Minister for Territory Families and Urban Housing [2025] HCA 47.

What have been some particularly controversial issues decided by the HCA?

[By date order:]

• Invalidity of Commonwealth legislation outlawing the Communist Party of Australia: Australian Communist Party v The Commonwealth (1951) 83 CLR 1;
• Holding that there is a strict separation of federal judicial power under the Australian Constitution: R v Kirby and Others; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254;
• Holding that the Commonwealth’s legislative power with respect to “external affairs” extends to implementing any bona fide treaty to which Australia is a party: Commonwealth v Tasmania (1983) 158 CLR 1 (“Tasmanian Dams Case”);
• Holding that the common law of Australia can recognize continuing Indigenous rights and interests in land that existed at the time of colonization, effectively repudiating the doctrine of “terra nullius”: Mabo v Queensland (No.2) [1992] HCA 23;
• A decision that a freedom of political communication is implied in the Australian Constitution: Australian Capital Television v Commonwealth (1992) 177 CLR 106; and
• Invalidation of a state-road user charge on low-emission vehicles on the grounds that it was a “duty of excise” and so fell within Commonwealth’s exclusive power: Vanderstock v Victoria [2023] HCA 30.

The United States Supreme Court is often seen as partisan. Does the HCA have a partisan reputation?

The HCA does not have a reputation as partisan. Occasionally particular appointments have been viewed as partisan. After one HCA decision (in Wik Peoples v Queensland (1996)) the then-deputy prime minister threatened to appoint conservative justices when the occasion arose. (The next appointment, of Justice [Ian] Callinan in 1997 arguably carried that threat through.) But for the most part the court is viewed as politically neutral and acts accordingly.

Would you say this court is considered a particularly powerful institution – say, compared to the Australian Parliament or the prime minister?

It is powerful in the sense that it has the last word on the constitutional validity of legislation and the legality of executive action if a competent challenge is raised before the court. In other words, it is powerful within its sphere of responsibility. It is not meaningful to compare it to the Parliament or the prime minister, however, both of which derive their authority, directly or indirectly, from democratic election, and both of which have broad power to proactively make or change law and policy.

What aspect of this court do you see as superior to that of the Supreme Court of the United States?

The fact that the HCA is not viewed as politically partisan is and has been very important in the Australian context.

What aspect of the Supreme Court of the United States do you see as superior to that of the High Court?

[As noted above, while] the majority reasons are readily ascertainable under U.S. practice, in Australia that is not necessarily the case. The more structured presentation of the opinion of the court may then be one example here, subject to any unexpected consequences that might follow if the practice were adopted.

True enough: Last September, I did just that, tallying the number of “laughs” between the 2017-18 and the 2024-25 terms to crown “the funniest justice.” The winner: Justice Neil Gorsuch, with 225 laughs. He was followed by Chief Justice John Roberts at 189 and Justice Elena Kagan with 153.

As we enter the new term in less than two weeks, I thought it would be a good time to take a break from our rather serious news cycle by identifying the champion this term and exploring what types of humor the court engaged in throughout it.

This term’s funniest justice

Meet the new funniest justice – same as the old funniest justice. That’s right: Gorsuch was far and away the term’s funniest justice, with 40 laughs. Alito came in second (20), followed by Justice Brett Kavanaugh (18), with Kagan and Justice Sonia Sotomayor tying for fourth at 17 laughs each. Roberts came in fifth place with 13 laughs – somewhat surprising given his second-place finish in last year’s multi-term tally.

But what, exactly, generated all those laughs on the nation’s highest judicial body?

The categories

Similar to last year, I found that court humor basically sorted into five categories:

1. Undermining an argument;
2. Making fun of fellow justices;
3. A self-deprecating joke about him/herself or the court;
4. Hypotheticals and their responses; and
5. Misspeaks or accidental interruptions.

(Note that I did not categorize or track laughs generated by individual lawyers – although I can tell you that the incomparable Lisa Blatt likely topped the list on that front.)

As the chart below shows, the most common type of humor by a wide margin came in the first category – using humor to undermine the argument of an advocate:

Of course, all of this is admittedly a little subjective – and the “(Laughter.)” notations in oral argument transcripts (which allowed me to do this at least pseudo-scientifically) don’t always perfectly translate to one of the five categories.

For instance, sometimes the humor came from an advocate’s deadpan response (set up by a justice’s questioning), as was the case in Abouammo v. United States, in which the court was considering whether a defendant could only be tried in the district where his or her crime was committed:

JUSTICE BARRETT: Would it have been different under your theory if he had AirDropped the document to the FBI agents as opposed to e-mailing it? Because then it would have all happened –

MR. YANG: I don’t use AirDrop, but I think that’s an Apple product that – that, like, you – you upload it somewhere?

JUSTICE BARRETT: Yeah. Are you an Android guy?

MR. YANG: I am an Android guy.

(Laughter.)

Other times, the advocates “purposely” supplied the humor, as in the April 20 oral argument in T. M. v. University of Maryland Medical System Corp., which looked at the rather convoluted question of whether the Rooker-Feldman doctrine bars federal district court review of non-final state court judgments and in which Blatt “suggested” that it was too close to the summer recess to overrule such precedent:

MS. BLATT: So, if we had known that Rooker was on the table, we might have written a different note telling the states to apply because the other side wants to overrule a case that protects the jurisdiction of their state highest court. So … no, you’re not going to overrule Rooker. I mean, sorry, I don’t think you’re going to do that.

(Laughter.)

MS. BLATT: Not in an April case. Not happening.

(Laughter.)

JUSTICE ALITO: Don’t – don’t dare my colleagues.

(Laughter.)

MS. BLATT: Okay. I’m sorry.

And then there were more profound lines – as in Trump v. Barbara, the birthright citizenship case, in which Roberts responded to U.S. Solicitor General D. John Sauer’s emphasis on the problem of so-called “birth tourism” – the practice of women coming to the United States specifically to give birth so that their children have U.S. citizenship – by suggesting that the phenomenon was not a problem when the 14th Amendment was ratified in the 19th century:

GENERAL SAUER: … [W]e’re in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a – a child who’s a U.S. citizen.

CHIEF JUSTICE ROBERTS: Well, it’s a new world. It’s the same Constitution.

(Laughter.)

But on to the categories themselves.

Category 1: Undermining an argument

As noted above, the most common type of humor involved the justices focusing on the flaws in advocates’ arguments. This tactic was especially favored by Gorsuch (87.5% of his laughs) and Kavanaugh (83.3%).

In Chiles v. Salazar, a case in which the court was considering whether Colorado’s law banning conversion therapy violated the First Amendment (not a particularly funny subject), Sotomayor got a laugh in this category by offering a pithy reply to the advocate’s argument based on a prior case:

MR. CAMPBELL: Because there is ongoing harm every day. Ms. Chiles is being silenced, and the kids and families who want her help are unable to access it. It’s very similar to what this Court did last term in the Mahmoud case, where the two lower courts had decided the case on rational basis review, and when this Court decided that strict scrutiny was the proper analysis –

JUSTICE SOTOMAYOR: Remember, I dissented.

(Laughter.)

MR. CAMPBELL: I do remember that, Justice Sotomayor.

In another case, FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., which asked whether a section of the Investment Company Act allowed private parties to sue investment companies, frequent Supreme Court advocate Paul Clement went back and forth with Gorsuch on whether litigants should be able to bring a lawsuit when the statute on which they rely does not specifically allow them to do so:

JUSTICE GORSUCH: But I’m just asking you, do you – is it your position that you think it’s okay to imply rescission but not damages? …

MR. CLEMENT: … I will say this. I don’t think it’s okay, but it is less disastrous to do it, I mean, because I do think, particularly with the rescission –

JUSTICE GORSUCH: Less disastrous for – for – for private litigants perhaps but pretty disastrous for – for our system of government, where the people are supposed to write the laws that govern them, not judges.

MR. CLEMENT: Yeah, I get it. But – but – but –

JUSTICE GORSUCH: You get it, the separation of powers might be disastrous?

(Laughter.)

Category 2: Making fun of the (other) justices

Bench-on-bench banter made up just 4% of the total laughs this year (8 laughs total) and was dominated by Sotomayor (5 of those 8). In Keathley v. Buddy Ayers Construction, Inc., a case about rules punishing omissions by bankrupt debtors (again, a not particularly humorous subject), Sotomayor began her questioning with the following:

CHIEF JUSTICE ROBERTS: Thank you, counsel. Justice Thomas? Justice Alito?

JUSTICE ALITO: No.

JUSTICE SOTOMAYOR: I – I know I’ll have a chance to speak to Justice Gorsuch later, but –

(Laughter.)

JUSTICE SOTOMAYOR: – but you answered him –

JUSTICE GORSUCH: I look forward to it.

JUSTICE SOTOMAYOR: I – always.

(Laughter.)

Category 3: A self-deprecating joke

The justices will occasionally make fun of themselves (or at least the court) rather than the advocates. Roberts had the greatest share of such jokes (23% of his laughs) but tied with Gorsuch in terms of the highest raw number of self-deprecating jokes (3). For instance, in Louisiana v. Callais:

MR. MOOPPAN: Again, I – I – I agree with you. My whole point is what this Court has said again and again and again.

JUSTICE GORSUCH: Oh, I know what it said. I just don’t know what it means.

(Laughter.)

And in Flowers Foods, Inc. v. Brock, an arbitration case involving a rather complicated fact pattern:

CHIEF JUSTICE ROBERTS: … I don’t know how you – you over – you – you skip over the step from the warehouse to the driver but not skip over – particularly skip over the step from the store to the consumer, particularly now since a lot of people, you know, don’t even go to the store, they use one of these services that will get the bread from the – the local warehouse.

MS. BENNETT: Sure. So this question came up in 1925.

CHIEF JUSTICE ROBERTS: I didn’t remember that.

(Laughter.)

Category 4: Hypotheticals and their responses

Next, we have hypotheticals and responses to them, in which members of the court apply absurd extensions of advocates’ arguments in an effort to expose flaws in those arguments. This was done most often by Alito (the master of the hypothetical). But the chief took a turn at it in Case v. Montana, which looked at when police may enter a home without a warrant during an emergency. After an advocate answered a question from Sotomayor about the boundaries of what counts as “reasonable suspicion” for the officer to do so, the chief responded with a rather specific (and fairly disturbing) scenario:

CHIEF JUSTICE ROBERTS: … I mean, think about an officer who walks down a regular beat and there’s a picture window, and there’s some person lying on the – on the sofa that looks like he’s, you know, kind of in an awkward position and keeps going down and two hours later, comes back, it’s the same thing.

MR. ROWLEY: Mm-hmm.

CHIEF JUSTICE ROBERTS: He knows nothing about it except that the guy appears perhaps to be, like, dead or passed out or – or something. So he knocks on the door and he knocks on the window and gets no response and then figures, you know, he’s worried about it, he breaks the door down or picks the lock and he walks in and the person wakes up and there’s, you know, three kilos of whatever, and – and, I mean, is that – I mean, is it – is it wrong that he did that out of legitimate concern and he didn’t know that, you know, that’s just, you know, Fred or whatever? …

(Laughter.)

Category 5: Misspeak/Interruptions

And then, finally, there are laughs that result from unintentional speaking or timing errors. Roberts led in this category, likely as a result of his role as the chief justice, which puts him in charge of when others in the courtroom may speak. But he wasn’t alone here; for instance, in an exchange in Louisiana v. Callais which contrasted significantly with the seriousness of this Voting Rights Act case:

MR. GREIM: The – the case law going back to Katzenbach and –

JUSTICE KAGAN: Mr. Greim, I mean –

CHIEF JUSTICE ROBERTS: I’m sorry.

JUSTICE KAGAN: Oh, are we –

CHIEF JUSTICE ROBERTS: Yes.

JUSTICE KAGAN: Sorry.

CHIEF JUSTICE ROBERTS: Justice Sotomayor?

JUSTICE SOTOMAYOR: Well, I’ll stop and you can go.

CHIEF JUSTICE ROBERTS: Justice Kagan?

MR. GREIM: Oh, sorry. I thought we were all done.

CHIEF JUSTICE ROBERTS: No, you’re not done.

(Laughter.)

MR. GREIM: I’m in no hurry.

***

So what can we take away from this? More than a few questions arise from this study, some profound (What does a justice’s humor ultimately tell us about his or her jurisprudence? Is an increasingly fractured court also increasingly humorless?), some undoubtedly more trivial (Why exactly is Mr. Yang an Android guy?).

For now, though, we’ll hold further judgment on what it all means until after the next term.

This week may have fallen within the Supreme Court’s summer recess, but it wasn’t exactly restful for the justices – or for the team behind this newsletter. There was a flurry of activity in the ongoing battle over Missouri redistricting, which, on Tuesday, made a third trip to the Supreme Court, as well as in several immigration cases that the Trump administration has appealed. Keep reading to catch up on all the latest SCOTUS news.

At the Court This Week

On Thursday, the Trump administration, for the third time, asked the Supreme Court to intervene in a battle over third-country removals – that is, the removal of noncitizens to countries not identified in their removal orders. For more on the filing, see the On Site section below.

Late on Tuesday, opponents of Missouri’s new congressional map that was drawn to favor Republicans again asked the Supreme Court to prevent the state from using the map in November’s elections. That request is now fully briefed, and the court’s decision could come at any time.

Also on Tuesday, Justice Elena Kagan denied a request to intervene in a high-profile, multistate custody dispute between a California couple and their surrogate. The surrogate, McKenna West, had asked the Supreme Court to pause an order declaring the couple to be the baby’s parents.

On Monday, the Trump administration filed two petitions for review on immigration issues. One addresses whether noncitizens have a due process right to bond hearings amid an extended detention, while the other asks whether a federal district court had the authority to consider Georgetown University scholar Badar Khan Suri’s challenge to his detention.

On Sept. 8, the Trump administration asked the court to clear the way for it to use the Department of Homeland Security’s Systematic Alien Verification for Entitlements database to identify noncitizens on state voter rolls. The dispute has been fully briefed since Sept. 16, but the court has not yet issued its decision.

Looking ahead, the justices on Monday will unofficially kick off the 2026-27 term when they gather for the “long conference” to consider the petitions for review that built up during their summer recess.

Morning Reads

Missouri election officials tell people to hold off voting while SCOTUS deliberates on gerrymander

Casey He, Politico (paywalled)

As the Supreme Court weighs an interim docket dispute on congressional redistricting in Missouri, local election officials in the state “are advising voters to consider delaying casting their ballots” until the court issues its decision, according to Politico. “If they are not in a hurry, and they have time, if they can put it off at all, it would be ideal so they don’t miss out on the opportunity to vote on the correct ballot,” said Jackson County Clerk Diane Thompson. Politico noted that “[a]bsentee voting in Missouri began Tuesday, when counties began accepting in-person voters and mail ballots from those who are not able to vote on Election Day.”

High Court Victor Who Kept Job Presses Rare Retaliation Case

Jennifer Bennett, Bloomberg Law

In June 2025, the Supreme Court unanimously ruled for Marlean Ames, an Ohio woman who contended that her employer, Ohio’s Department of Youth Services, discriminated against her because she was straight. Unlike many other high-profile plaintiffs in discrimination cases, Ames continued to work for DYS as the dispute unfolded and remains there today – but she now claims she is facing unlawful retaliation from her supervisors. “She’s been isolated at work, moved out of her usual office, and had her access restricted, according to a new complaint she filed in July, more than a year after her Supreme Court success.” Employment law attorneys told Bloomberg Law that this type of retaliation case is rare in large part because companies and employees alike tend to prefer separation. “The employer doesn’t want to be accused of retaliation,” said Alan Reinach, president of the Church State Council. “And the employee is wary of going back to suffer retaliation.”

Grassley Opens Judiciary Committee Executive Business Meeting, Calls on Chief Justice Roberts to Address Minnesota Judges’ Potential Ethics Violations

Senate Judiciary Committee

In prepared opening remarks for the Senate Judiciary Committee’s executive business meeting on Thursday, Sen. Chuck Grassley called on Chief Justice John Roberts to address the issue of “judges publicly criticiz[ing] government officials.” Such criticism “undermines public confidence in the courts,” according to Grassley, and “destroys the perception of impartiality upon which the justice system relies.” Grassley’s comments came in response to a recent New York Times article about immigration enforcement in Minnesota, which included quotes from judges who were critical of the Trump administration’s actions. “Federal judges should be issuing opinions and orders in accordance with the law, not giving quotes based on their personal views to the New York Times,” Grassley said.

Trump’s Retribution Campaign May Face Supreme Court Test

Adam Liptak, The New York Times (paywalled)

In his newsletter for The New York Times, Adam Liptak explored the Trump administration’s pursuit of Supreme Court review of its process for installing “United States attorneys, the officials who lead the prosecutors’ offices in the nation’s 94 judicial districts.” “Three federal appeals courts have rejected President Trump’s go-to move,” which involves placing his preferred candidate in the No. 2 spot and then allowing them to serve as acting U.S. attorney indefinitely, and the Trump administration has now appealed two of those decisions to the Supreme Court. Liptak noted that the appeals courts’ rulings against the administration “have complicated Trump’s efforts to investigate and prosecute his political foes.”

Supreme Court Emergency Docket Asked to Protect Right to Use Religious Courts

Dan McLaughlin, National Review

In a column for the National Review, Dan McLaughlin highlighted an interim docket application addressing “a collision between the courts of New York State and an Orthodox Jew’s resort to a rabbinical court known as a beis (or beth) din.” This filing, according to McLaughlin, draws the Supreme Court into a broader conflict between religious tribunals and civil courts that has been going on for centuries. “The federal government nearly went to war with the Latter-day Saints in 1857-58,” he noted, “and one of the major causes was Utah territorial governor and Mormon religious leader Brigham Young routing nearly all civil disputes to religious courts, undermining the authority of the federal courts even over matters such as title to land.”

On Site This Week

Court News

Trump administration again urges justices to allow deportations to third-party countries

Telling the justices that it had been deprived of “an essential tool to remove certain aliens, including some of the worst criminal aliens,” the Trump administration on Thursday afternoon asked the court, for the third time, to clear the way for the government to deport noncitizens to countries that are not identified in their removal orders – a procedure known as “third-country removals.”

Contributor Corner

The rule of four and role of custom on the Supreme Court

In his Nuts and Bolts column, Stephen Wermiel explored how the Supreme Court goes about “deciding what cases to decide,” highlighting “a 100-year-old custom known as the rule of four.” “Simply put, this rule means that the court will hear a case when four justices vote in favor, even if a majority of justices did not want to do so. This sounds straightforward, but it comes with an interesting history and quite a few wrinkles,” Wermiel wrote.

Contributor Corner

Devolving standards of decency

In his Civil Rights and Wrongs column, Daniel Harawa analyzed the potential pitfalls of allowing ever-changing “standards of decency” to influence Eighth Amendment doctrine. “When the Warren Court gave us the ‘evolving standards of decency’ test, it contemplated a society that would mature toward leniency,” Harawa wrote. “It may be the case that a constitutional doctrine built around society’s capacity to become more decent must also reckon with the possibility that society can become less so.”

Court News

Trump administration takes important immigration question back to the Supreme Court

On Sept. 11, the Supreme Court dismissed Genalo v. Black, an immigration case set to be argued in October. On Monday, the Trump administration filed a new petition for review raising the same questions about due process and extended detention.

Contributor Corner

The decision before the decision

In her In the Interim column on Wednesday, Taraleigh Davis explored how often the Supreme Court deploys administrative stays and what, if anything, the use of such a stay tells us about how the court will ultimately resolve a case.

Contributor Corner

The Supreme Court refuses to become partisan in two fights over the midterms

In his Justice, Democracy, and Law column on Tuesday, Edward Foley reflected on the court’s handling of interim docket disputes over Missouri redistricting and mail-in voting, contending that its approach to these cases proves that it is not a purely partisan institution.

SCOTUS Outside Opinions

Is it time to rethink the office of the chief justice of the United States?

In a column for SCOTUSblog, Russell Wheeler explained how the role of chief justice took shape and the obstacles that stand in the way of reshaping the chief’s duties.

Podcasts

Advisory Opinions

Third Time’s the Charm?

Sarah Isgur and David French discuss the Missouri redistricting case now that the U.S. Court of Appeals for the 8th Circuit has weighed in. Then, they go through a few listener mailbag questions, including on controversial school murals, marijuana law, and court packing.

A Closer Look

Justice Robert Trimble

Friday’s A Closer Look is typically a judicial biography. This week we cover Justice Robert Trimble, who served on the court from 1826-1828.

Although Justice Robert Trimble served only two years on the Supreme Court before his death in 1828, Chief Justice John Marshall found the loss considerable. “He was distinguished for sound sense, uprightness of intention and legal knowledge,” Marshall wrote privately. “His superior cannot be found. I wish we may find his equal.”

New justices on the court typically had to pay their dues for a few years before Marshall gave them majority opinions (Justice Smith Thompson, who had joined the court in 1823, wrote three in the 1827 term, and Justice Bushrod Washington, the court’s senior associate justice, wrote two). Trimble, on the other hand, wrote nine in his first term, an “unexpectedly large share of opinions” at that time. Trimble was also the second of 11 Kentuckians to have served on the court, assuming the seat of Justice Thomas Todd, the first.

Trimble was born in November 1776 in Virginia. In 1779, his family left for Boonesborough, Kentucky, and amid the arduous journey, his uncle was shot and “at his own request … left to die alone” on the trail. Trimble’s first teacher was his grandfather, James McMillan. Trimble later taught school to pay for his education, and read law under George Nicholas, the “principal author” of the first Kentucky constitution.

Trimble was admitted to the bar in 1803 and built a “profitable” land litigation practice in Paris, Kentucky. He served a single term in the Kentucky House and never again ran for office. Per one early account, “the stormy life of a politician” was not “congenial to his disposition or taste.” He also passed on two chances to become a U.S. senator, which reportedly would have required only his consent.

Trimble was more willing to accept judicial posts, although the salaries were a recurring concern. He joined the Kentucky Court of Appeals in 1807 but resigned in December 1808, citing the financial loss from this job. (Sources disagree on whether he briefly served as the state’s chief justice in 1810 or declined this position.)

In 1817, President James Madison appointed Trimble to the federal district court in Kentucky. There, his nationalist rulings were largely unpopular – after he held in 1821 that a Kentucky debtor-relief law did not bind the federal courts, one newspaper editorial reminded him of what happened to Justice Samuel Chase. (For those not carefully reading our Closer Looks, Chase was impeached).

Before his death in 1826, Todd reportedly wanted Trimble to succeed him. President John Quincy Adams nominated Trimble in April 1826, in what was his only appointment to the court. Kentucky Sen. John Rowan led what Henry Clay described as “a violent opposition” to the nomination (Rowan and Trimble had a “personal feud” and “long standing difference of opinion”), but the Senate still confirmed Trimble – making him the first lower federal court judge to rise to a Supreme Court justice.

Trimble’s debut opinion, Montgomery v. Hernandez, arose from a Louisiana suit over a federal marshal’s bond. The marshal had failed to pay $3,126 from the court-ordered sale of a sailing ship. Trimble wrote that the court’s authority to review state court decisions “is very special and limited in its character,” adding that “[i]t is not every misconstruction of an act of Congress by a state court that will give this Court appellate jurisdiction” – effectively holding that a party had to specifically claim a right under federal law and have the state court rule against it.

What many consider to be his “best” and “ablest” opinion came the same term in Ogden v. Saunders, which asked whether a New York insolvency law could cancel debts from after the law’s passage. Trimble joined Justices Washington, William Johnson, and Thompson in holding that it could, while Marshall and Justices Joseph Story and Gabriel Duvall dissented. Writing separately (the justices issued “seriatim” opinions at the time), Trimble argued that a contract and its “obligation” were distinct. If the two terms meant the same thing, he wrote, the contracts clause would prevent laws hindering “the obligation of obligations,” which he contended would attribute to the framers “a useless and palpably absurd tautology.” In other words, according to Trimble, a contract’s binding force came from the law of the state where it was made, so a state could set the terms for future agreements (in contrast to contracts drawing their force from “universal law”). The decision “clarified state authority” by allowing states to pass their own bankruptcy and insolvency laws. Since Trimble generally sided with Marshall in favor of federal authority over the states, the vote was somewhat unusual for him.

After the 1828 term, Trimble returned to Kentucky, where a “bilious fever” he apparently had as a child recurred. He died in August 1828 at age 51 and was replaced on the bench by Justice John McLean. Story wrote that had Trimble lived another 10 years, “he would have gained a still higher rank.” Trimble County, Kentucky, was established in 1837 and named for him, as was a World War II ship, the SS Robert Trimble. As one historian concluded, Trimble’s two years on the court “produced much and promised even more.”

SCOTUS Quote

MR. ROTHFELD: “Thank you. If it please the Court: The court of appeals in this case – excuse me, Your Honor.”

JUSTICE GINSBURG: “Maybe you could lift the podium?”

MR. ROTHFELD: “Actually, I have never used this before, so it's a learning experience for me, Your Honor.”

JUSTICE SCALIA: “That's enough.”

MR. ROTHFELD: “Okay?”

JUSTICE SCALIA: “We can’t see you.”

(Laughter.)

MR. ROTHFELD: “That – that may be an advantage, Your Honor.”

— Fitzgerald v. Barnstable School Committee (2008)

The 42-page filing was the third time that the Trump administration has asked the Supreme Court to intervene in the battle over third-country removals. Sauer told the justices on Thursday that “[t]he latest order” by U.S. District Judge Brian Murphy barring the third-country removals “rests on the same fundamentally flawed legal premises as the previous rulings.” Sauer also asked the court to enter an “immediate administrative stay” – an order that would allow the government to continue deportations while the justices consider his request.

Justice Ketanji Brown Jackson, who has initial responsibility for emergency appeals from the U.S. Court of Appeals for the 1st Circuit, from which the case hails, directed the immigrants in the case to respond to the government’s request by 4 p.m. EDT on Monday, September 28.

The dispute began last year, in the wake of a Jan. 20 executive order in which President Donald Trump instructed the Department of Homeland Security to take “all appropriate actions” to remove noncitizens who were in the United States despite having orders to deport them.

That order prompted DHS to issue internal guidance in February instructing a division of U.S. Immigration and Customs Enforcement to determine whether undocumented immigrants who had received deportation orders but had not yet been removed because of the possibility that they would be tortured if they were returned to their home countries could instead be removed to a different country. Additional guidance issued the following month indicated that before immigrants can be removed to a country that is not specifically identified in their removal orders and that has not assured the United States that the immigrants will not face torture, DHS must follow a series of procedures: It must notify the immigrants of the planned removal, give them a chance to “affirmatively express” fear that they will face torture, and – if needed – conduct a screening to determine the likelihood that they will indeed be tortured.

In March, four immigrants with removal orders went to federal court in Massachusetts, where they argued that they feared being removed to a country that was not identified in their orders.

Murphy issued an order that barred the government from deporting the immigrants and others like them to third countries without first providing their lawyers and them with written notice of the third country to which they might be removed, as well as a “meaningful opportunity” to challenge that removal. DHS should also, Murphy instructed, decide whether the immigrants’ fears of torture were “reasonable,” rather than whether it is “more likely than not” that they will be tortured. If immigrants cannot make that showing, Murphy added, DHS must give them at least 15 days to seek to reopen their immigration proceedings.

Sauer went to the Supreme Court for the first time, asking the justices to put Murphy’s order on hold while the government’s appeal moved forward. Over a dissent by Justice Sonia Sotomayor that was joined by Jackson and Justice Elena Kagan, the court on June 23 granted that request.

Sauer returned to the court for the second time one day later, asking the justices to “clarify[]” that, in the wake of their first order, the Trump administration could move forward with the deportation of eight men being held on a U.S. military base in Djibouti after Murphy had ruled that efforts to remove them to South Sudan violated his order.

On July 3, the court issued a brief opinion in which it indicated that its June 23 order paused Murphy’s order “in full” – and also applied to his later order regarding the South Sudan deportations. Kagan wrote a brief concurring opinion, in which she indicated that although she disagreed with the court’s decision to pause Murphy’s order, she did “not see how a district court can compel compliance with an order that this Court has stayed.” Sotomayor again dissented, joined by Jackson.

When the case went back to the lower courts, Murphy issued a final judgment in the immigrants’ favor and threw out the third-country removal policy. He ruled (among other things) that before immigrants can be removed to a third country, they have the right to “meaningful notice” and a “meaningful opportunity” to contest removal to that third country on the ground that they have a reasonable fear of being persecuted or tortured there.

On Friday, the U.S. Court of Appeals for the 1st Circuit largely upheld Murphy’s ruling, and on Wednesday it dissolved the March 16, 2026, order that put Murphy’s ruling on hold while the government appealed.

The Trump administration then came to the Supreme Court for the third time on Thursday afternoon, asking the justices to intervene. Sauer wrote that the reinstatement of Murphy’s order has “created substantial logistical problems with ongoing removal operations—including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals.”

Sauer contended that Murphy and the court of appeals had “simply relied on the same meritless grounds on which” the earlier order in the immigrants’ favor was based. “The courts,” he said, “again disregarded multiple jurisdictional bars that preclude” courts from reviewing an immigrant’s “claims of persecution or torture except in a petition for review from a removal order. And they again rejected the government’s reliance on countrywide assurances that particular nations will not torture or persecute anyone.”

If the third-country deportation process is delayed, Sauer said, “the consequence … is that the government will often need to restart the entire removal process afresh, freezing things as the government attempts to rework arrangements with foreign countries.”

Along with the sentence, Divine issued an “opinion to explain why, contrary to common belief, Supreme Court precedent does not prohibit capital punishment for nonhomicide sexual offenses against children.” Putting aside the propriety of a federal judge issuing what amounts to an advisory opinion on potential paths to pursuing the death penalty, Divine’s opinion perhaps portends something broader about what it means to affix constitutional doctrines to prevailing social norms.

To understand this point, it’s important to start with the Supreme Court precedent that Divine believes no longer controls.

The operative text of the Eighth Amendment protects against “cruel and unusual punishments.” In the 1958 decision Trop v. Dulles, the court, in an opinion by Chief Justice Earl Warren, held that this constitutional clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

In 2008, the Supreme Court decided Kennedy v. Louisiana, which asked whether the Eighth Amendment prohibits the death penalty “for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.” Kennedy applied the “evolving standards of decency” standard to find that the Eighth Amendment does indeed forbid the imposition of the death penalty for such an act. In so holding, the court explained that the Eighth Amendment’s protections are “determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that ‘currently prevail.’” The court in Kennedy then held that there was a “national consensus against capital punishment” for that offense. Specifically, at the time the Kennedy decision was issued, “no individual ha[d] been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense ha[d] been conducted since 1963.”

When Kennedy reaffirmed the evolving standards of decency standard, it did so under the assumption that the standard would be flexible to meet the norms of a “maturing society.” Under the doctrine, Eighth Amendment protections “change as the basic mores of society change.”

The court seemed to assume when it adopted the evolving standards of decency framework that society’s values would only evolve one way – in favor of “restraint in the application of capital punishment.”

But does that assumption about society actually hold? And if not, what does that mean for Eighth Amendment jurisprudence more broadly?

As Divine noted, a lot has happened since Kennedy was decided. In the past three years alone, “at least six States enacted new legislation permitting capital punishment for the crime of child rape,” which is slightly under a quarter of all states that still allow for capital punishment. And this number does not include states that have similar laws on the books that have not been enforced post-Kennedy. Given this change, and, additionally, according to Divine, the “extraordinary increases in crimes against children, plus paradigm changes in the legal and technological landscape,” he concluded that “policymakers and prosecutors may determine that the most decent thing is to impose the most serious penalty on those who harm the most innocent.” In other words, Divine believes that society has evolved in favor of extending capital punishment beyond its current bounds.

The sentiment underlying Divine’s opinion raises important questions that reach far beyond the issue of capital punishment for the sexual assault of children: What happens when society evolves (or, as law professor Alexandra Klein would say, devolves) in a more punitive direction? Do Eighth Amendment protections wane accordingly?

To be sure, punitive impulses seem to be on the rise in various ways that implicate the Eighth Amendment. For example, last year saw more executions in the United States than any year in close to two decades. Some states and the federal government are returning to the use of firing squads and experimenting with death by nitrogen gas. President Donald Trump has repeatedly called for the death penalty for drug dealers, and urged state lawmakers to consider new legislation to that effect. Beyond capital punishment, states are debating castrating people who commit sex crimes. The government has sought to require incarcerated transgender women to be imprisoned with men and to severely limit their health care. The president has proposed reopening Alcatraz. And the government has sent immigrants to inhumane prisons across the world. If “decency” is the linchpin for Eighth Amendment protections, the country’s current mood bodes poorly for efforts to prevent punishments that are cruel.

The irony is that for decades, conservative justices complained of the evolving standards of decency test as a relic of the Warren Court. In their view, the test not only departed from the original meaning of the Eighth Amendment, but it was too malleable and too dependent on judges’ own sensibilities – a license to write liberal policy preferences into the Constitution. Yet, if Divine’s approach to evolving decency holds, the doctrine they have long derided could become the vehicle for more punitive results with the upshot of not having to formally overrule decades of precedent.

When the Warren Court gave us the “evolving standards of decency” test, it contemplated a society that would mature toward leniency. For progressives and death penalty abolitionists who long embraced the standard, the problem is not its malleability, but its wishful conflating of evolution with the exercise of punitive restraint. It may be the case that a constitutional doctrine built around society’s capacity to become more decent must also reckon with the possibility that society can become less so.

At the center of deciding what cases to decide is a 100-year-old custom known as the rule of four.

Simply put, this rule means that the court will hear a case when four justices vote in favor, even if a majority of justices did not want to do so. This sounds straightforward, but it comes with an interesting history and quite a few wrinkles.

Some background may be helpful. As most SCOTUSblog readers are likely aware, when the losing party in a lower court takes a case to the Supreme Court, the vehicle is called a petition for certiorari, which in Latin means “to be more fully informed.” In most of the 19th century, the path to the high court was a direct appeal, and the justices had to decide most cases that came their way.

Then in 1891, in part to ease Supreme Court backlog, Congress established the federal circuit courts of appeal throughout the country and gave the Supreme Court discretion to turn down some types of appeals from the new circuit courts. In 1925, Congress passed another law that made petitions for certiorari the predominant way to appeal to the court and gave the justices a high degree of discretion to turn away cases by simply denying review.

As part of the negotiations in 1925, justices told Congress that they generally followed the practice of agreeing to hear and decide cases if there were four justices who wanted to do so. Chief Justice William Howard Taft went farther and committed the court to the rule of four.

This “rule” is not in the Constitution, nor part of any federal law, and it does not even appear in the court’s own published rules. In 1983, Justice John Paul Stevens actually wrote a law review article questioning the rule of four, arguing that the court was taking unnecessary cases when five justices were opposed to hearing them. No change resulted from the criticism by Stevens.

The rule of four has a kind of populist appeal – that the court does not function entirely on majority rule, that a minority may push the court to decide a case, and that this may make the court more accessible to the less privileged in society. All of these ideas undoubtedly contribute to the longevity of the rule.

Understanding this practice is also important in appreciating how the court works. Each term, the court receives briefs and hears arguments in about 55-60 petitions (this number has decreased dramatically over the years). At the same time, the justices turn down some 4,000 petitions, presumably none of which received the requisite four votes. It is also worth noting that the votes of justices on granting or denying petitions and emergency applications are not necessarily publicly recorded. We learn about these practices when the papers of justices are made available, usually some years after they die.

This has led to various questions about the rule and how it works arising periodically.

One issue arises because of the dichotomy between granting certiorari and issuing emergency orders. As to the latter, it takes five votes for the court to grant a stay halting a lower court’s ruling while a case proceeds through the court system. It is possible, therefore, for the court to agree to hear and decide a petition with four votes while refusing to halt the action that is the basis for the lawsuit because there were not five votes for a stay.

This possibility was most egregious when it happened in a death penalty case. An inmate sentenced to be executed might raise an issue important enough for four justices to agree to hear the case. Meanwhile, the same inmate might be executed because there were not five votes to grant an emergency stay of execution. James Edward Smith, an inmate on death row in Texas, was executed by lethal injection on June 26, 1990. Justices William Brennan, Thurgood Marshall, Harry Blackmun, and Stevens voted to grant his petition for certiorari to consider his mental competence; because there was no fifth vote to grant a stay of execution, he was put to death which in turn made the petition moot.

This is not supposed to happen. To prevent such a situation, the court has an informal practice called the courtesy fifth vote in which a justice who opposes granting certiorari nevertheless votes to grant a stay to preserve the grant of certiorari by four justices. Two examples of this practice stood out in 2016, one in which Chief Justice John Roberts provided a fifth vote for a stay of execution, the other in which Justice Stephen Breyer was the fifth vote to delay a lower court order in favor of a transgender student. Like the rule of four, the courtesy fifth vote is purely a matter of custom and depends entirely on the good will and collegiality of the justices.

There are other questions about the rule of four that depend on court courtesy. When the court agrees to hear a case, there are important procedural issues that generally must be satisfied, such as that the case is not moot, it represents a final judgment if it is from a state court and is not purely a matter of state law, and it involves parties who have sustained a genuine injury. When one or more of these procedural hurdles exists, the court may decide to “dismiss as improvidently granted,” known as a DIG.

What happens if four justices vote to hear a case but the other five think there is a procedural flaw that justifies a DIG? To allow the five who did not want the case in the first place to simply dismiss the case would defeat the rule of four. The court’s answer appears to be another informal practice not written or codified: to dismiss a case granted by votes of four justices, it should take six votes, including one of those who voted to hear the case.

The process of granting certiorari may involve other considerations, as well. There has long been a practice called the “defensive denial.” A justice may think an issue is important and worthy of decision. However, the same justice may count votes and find that the case will come out with the opposite result. In that instance a justice may vote to deny certiorari review to avoid the loss.

Another practice depended entirely on collegiality among the justices. When the justices went around the conference table voting to grant or deny a petition, a justice might vote “join 3,” meaning he would make a fourth vote for certiorari if three others agreed to hear the case. That said, there are suggestions that the court no longer uses the “join 3” vote.

In the weeks and months ahead, the court is likely to grant review to as many as three dozen petitions for certiorari. Understanding this process provides greater appreciation of how the court makes these important choices – and how difficult it can be to separate customs from rules on the nation’s highest judicial body.

Join us today at 1 p.m. EDT on LinkedIn Live for a discussion between Amy and Briefly’s Adam Stofsky about the upcoming term.

At the Court

Late on Tuesday, the dispute over congressional redistricting in Missouri returned to the Supreme Court’s interim docket, when opponents of the state’s new map, which favors Republicans, again asked the justices to prevent it from being used in November’s elections. On Wednesday, the state, as well as the two political candidates and two individual voters who have fought to reinstate the new map, filed their responses to this request. For more on the case, see the On Site section below.

Also on Wednesday, the court denied a request for a stay of execution from Ker’Sean Ramey, who was sentenced to death for the 2005 murders of Celso Lopez, Tiffani Peacock, and Sam Roberts. Hours later, Ramey was executed in Texas.

The Trump administration has asked the Supreme Court to clear the way for it to use the Department of Homeland Security’s Systematic Alien Verification for Entitlements database to identify noncitizens on state voter rolls. The dispute is now fully briefed, and the court’s decision could come at any time.

On Monday, the justices will gather at the “long conference” to consider the petitions for review that built up during their summer recess.

Morning Reads

Trump’s Familiar National Security Argument for Arch Has Limits

Suzanne Monyak, Bloomberg Law

Amid a brewing battle over his plan to build a “triumphal arch” in Washington, President Donald Trump has “invok[ed] a familiar legal tactic,” according to Bloomberg Law: “claiming the proposed monument is necessary to protect US national security.” “The claim, which Trump posted on his social media platform over the weekend, is part of a well-trodden playbook for the administration. It has cited national security to defend against legal challenges to immigration restrictions, sweeping tariffs, and, more recently, Trump’s new White House ballroom.” The Supreme Court ultimately rejected this and other arguments in the tariffs case, but it “has allowed” construction of the White House ballroom “to continue as litigation proceeds.” In general, courts “defer broadly to the executive branch when it comes to national security issues,” Bloomberg Law noted. “However, legal experts cautioned, it isn’t carte blanche.”

Ninth Circuit finds lower court missed the mark in Hawaii firearms regulation case

Alan Riquelmy, Courthouse News Service

On Tuesday, the U.S. Court of Appeals for the 9th Circuit “reversed a lower court on Hawaii’s firearm licensing rules, finding they didn’t violate Second Amendment rights,” according to Courthouse News Service. The dispute centers on rules allowing the state to “void permits to obtain pistols or revolvers that [haven’t] been used after 30 days” and “require an applicant to present their firearm at a police station in some cases.” Unless a licensing scheme is “‘put toward abusive ends,’ such as through ‘lengthy’ processing delays or ‘exorbitant fees’ that effectively deny ordinary citizens their Second Amendment rights, it is presumptively constitutional,” wrote U.S. Circuit Judge John Owens for the majority, adding that “nothing in plaintiffs’ complaint suggests that either the thirty-day restriction or the police station inspection requirement crosses that line.” “Attorney Alan Beck, representing the plaintiffs, told Courthouse News in a statement that the Ninth Circuit decision contradicts” past Supreme Court rulings on the Second Amendment and that he will be appealing the case to the high court.

US senators introduce bill to remove D.C. judge residency requirements for two federal courts

Blake Brittain, Reuters

On Tuesday, Sen. Ashley Moody, a Republican from Florida, and Sen. Chris Coons, a Democrat from Delaware, announced that they had “introduced a bill to remove a requirement that judges on the Washington, D.C.-based US Court of Federal Claims and US Court of Appeals for the Federal Circuit live in the D.C. area,” according to Reuters. As it stands, judges serving on these courts must “live within 50 miles of D.C.,” although “[b]oth courts have nationwide jurisdiction.” “For too long, we have limited the pool of judges available to take on the toughest IP and federal contract cases to those willing to uproot their lives and move to Washington, D.C.,” Coons said in a statement. Reuters noted that other federal courts located in D.C., including the Supreme Court, “do not have the same residency requirement.”

The Supreme Court has a good chance to start fixing a bad law

George F. Will, The Washington Post (paywalled)

In a column for The Washington Post, George F. Will highlighted a petition for review on the Indian Child Welfare Act, which gives tribes a say in the placement of Indian children and which Will believes is “one of America’s worst laws.” The case involves Nathan and Kellie Reyelts, who served “as foster parents for Indian fraternal twins.” They challenged the constitutionality of the ICWA after the children were taken from their care and placed with an Indian relative, contending that the law is “incompatibil[e] with the Constitution’s guarantee of equal protection,” as Will put it. He wrote that the ICWA “stained American law by sacrificing individual rights to a group’s interests” and urged the justices to “expung[e]” this stain.

On Site

Court News

Missouri congressional redistricting battle goes to Supreme Court for the third time

Less than two weeks after the Supreme Court paused a ruling by a federal judge in Missouri that would have cleared the way for the state to use a new congressional map intended to give Republicans an additional seat in the U.S. House of Representatives in the November 2026 elections, the opponents of that map once again asked the justices to intervene in the dispute over the state’s congressional districts.

Court News

Missouri seeks to use congressional redistricting map expected to benefit Republicans

Missouri and a group of candidates and voters seeking to implement a new congressional map enacted in 2025 urged the Supreme Court on Wednesday afternoon to leave in place a ruling by a federal appeals court that directs the state to use that map. The filings came less than 18 hours after the new map’s opponents, who have already prevailed twice before the court, brought the Missouri redistricting dispute back to the interim docket.

Contributor Corner

The decision before the decision

In her In the Interim column, Taraleigh Davis shared her research into the Supreme Court’s use of administrative stays – that is, stays that briefly freeze a “lower-court order to preserve the status quo” while the justices come to a decision. She explored how often the court deploys administrative stays and whether they “tell us anything about what comes next.”

Contributor Corner

Respecting our multi-branch lawmaking process

In his Major Questions column, Chad Squitieri reflected on separation-of-powers issues that arise in the context of the federal lawmaking process and explained why he believes the Supreme Court too often acts as if Congress makes law alone. “Going forward,” Squitieri wrote, “the court should better account for the Constitution’s multi-branch lawmaking process by more regularly referencing both the Congress and the president when referring to the creation of federal statutes.”

A Closer Look

Teck Metals Ltd. v. Confederated Tribes of the Colville Reservation

For more than 125 years, a Canadian mining company has operated along the Columbia River in British Columbia, about 10 miles north of where the river crosses the border into the United States. Beginning in 1930, the company, now known as Teck Metals, released waste materials created during the mining process into the river, which washed them away toward Washington state.

In 2004, two members of the Confederated Tribes of the Colville Reservation, which is in Washington and bordered on two sides by the Upper Columbia River, sued the mining company under the Comprehensive Environmental Response, Compensation, and Liability Act, alleging that the waste materials were contaminating the river, harming fish and other organisms. Washington state joined the suit, agreeing with the tribe members that Teck should be held liable for the damage, and the tribes later joined, as well.

Through CERCLA suits, the federal government, states, and/or Indian tribes may recover cleanup costs from companies found to be responsible for hazardous waste sites. They may also seek financial damages “for injury to, destruction of, or loss of natural resources” – such as the cost of having to establish a new water supply or fees the government was unable to collect when a public recreation area was closed due to safety concerns.

The federal district court in Washington weighing the CERCLA claims against Teck Metals broke the dispute into three phases. In the first phase, it determined that the company was liable under CERCLA for the damage to the Columbia River. In the second phase, it addressed cleanup costs, ordering Teck to pay the tribes approximately $8.6 million. The third – and current – phase of the case focuses on financial damages. Together, the state and tribes asked for $177 million to address injuries to fish and “benthic organisms” in the river. Separately, the tribes asked for over $500 million in additional damages related to “their interim lost uses of the injured natural resources that are specific to their members because of their unique relationship with the Upper Columbia River,” emphasizing the role the river has long played in their cultural traditions and ceremonies.

Teck Metals challenged the tribes’ separate claims, contending that CERCLA does not cover damages stemming from a cultural connection to a natural resource. The district court agreed with the company, holding that “[t]he Tribes’ claims fell outside the statute’s scope.” But the U.S. Court of Appeals for the 9th Circuit reversed that decision, determining that claims for damages related to “interim lost uses of injured natural resources” are allowed under CERCLA, even if the claims have a cultural component.

In July, Teck Metals asked the Supreme Court to clarify the scope of CERCLA here, contending that the 9th Circuit’s decision “upended” the statute’s “careful tradeoff between broad liability and limited remedies,” allowing for novel damages claims with “no limiting principle.” CERCLA, according to the petition for review, does address the “use value” of a resource, but that phrase does not pave the way toward “a distinct category of subjective, nonuse injuries that reflect how a person feels about a resource.”

Teck Metals further argues that the 9th Circuit’s ruling deepened a disagreement between the federal courts of appeals, known as a circuit split, over CERCLA’s scope. “In the Tenth Circuit, recovery is restricted to accomplishing CERCLA’s core goals of restoring or replacing natural resources. In the D.C. Circuit, trustees may account for some nonuse values in seeking damages, but may not recover for purely private interests such as subjective individual perceptions of harm. And now in the Ninth Circuit, trustees may recover for the subjective, felt losses of a cultural connection to a resource,” the petition says.

In their response to Teck’s petition, the tribes assert that the 9th Circuit’s ruling was “uncontroversial[]” and in line “with decisions from other circuits holding that CERCLA compensates for all lost uses of damaged natural resources.” In fact, the tribes continue, there is no circuit split on the question presented, because “this is the first appellate case in which a defendant has attempted to carve compensation for cultural uses out of CERCLA.”

Moreover, according to the tribes, it does not make sense for the justices to take up the case at this point in the proceedings, when the 9th Circuit has “held only that CERCLA does not categorically bar recovery” of the tribes’ separate damages claims, but lower courts have not actually dug into those claims. “[I]t is premature to conclude that the Tribes here will even obtain such lost-use damages,” they write.

Teck Metals Ltd. v. Confederated Tribes of the Colville Reservation is scheduled to be considered by the justices at the “long conference” on Monday.

SCOTUS Quote

JUSTICE GORSUCH: “So you have a dog in the hunt on the scope of the discovery rule –”

MR. EARNHARDT: “Well –”

JUSTICE GORSUCH: “– but not on whether there is a discovery rule?”

MR. EARNHARDT: “Well, no, I –”

JUSTICE GORSUCH: “Is that what you're saying?”

MR. EARNHARDT: “No, I'm saying –”

JUSTICE GORSUCH: “What is this dog?”

— Warner Chappell Music, Inc. v. Nealy (2024)

The filing came less than 18 hours after the new map’s opponents, who have already prevailed twice before the court, urged the justices either to put Monday’s decision by the U.S. Court of Appeals for the 8th Circuit on hold or to “clarify” that the Supreme Court’s Sept. 10 order pausing a similar ruling by a federal judge in Missouri remains in effect and bars the state from using the new map. (More background on the history of the dispute over the maps and the opponents’ filing on Tuesday night is available here.)

Both Missouri and the individual plaintiffs, led by Rep. Robert Onder, argued that the map’s opponents – the group People Not Politicians and its executive director, Richard von Glahn – lack a legal right, known as standing, to pursue their appeal. Cole Bradbury, the lawyer for the individual plaintiffs, wrote that People Not Politicians does not have the kind of special stake in enforcing the November referendum that will put the new map up for a vote. Missouri added that the Supreme Court’s 2013 decision in Hollingsworth v. Perry, holding that the proponents of a California initiative to ban same-sex marriage lacked standing to defend the law’s constitutionality when the state declined to do so, reinforces the conclusion that the challengers do not have standing.

The individual plaintiffs also told the court that the challengers are unlikely to succeed on the merits of their claims – a key factor that courts consider when determining whether to grant temporary relief. The individual plaintiffs characterized the 8th Circuit’s decision as “narrow and unremarkable in scope.” The court of appeals, they said, “does not hold that voters have a right to any particular candidate, and it does not freeze Missouri’s map for future election cycles. It holds only that, having chosen to conduct its primary under the 2025 map, Missouri cannot switch to a different map for the general election that immediately follows.”

Finally, addressing the question whether it is too late to reinstate the 2025 map, the state told the justices that “[t]he honest truth is that the chaos injected by the Missouri Supreme Court,” which barred the state from using the 2025 map, “will remain no matter what this Court does.” “More than anything,” the state continued, “Missouri voters need stability. The Secretary” of State, Denny Hoskins (who is Missouri’s top election official), “respectfully believes that denying a stay—and declining to change Missouri’s congressional map for a fifth time—is the best way to promote stability.”

Let’s start with some examples of the phenomenon in question. Judicial references to “Congress” simply making law are ubiquitous and have been offered by justices of different interpretive stripes. In 2025, Justice Sonia Sotomayor wrote on behalf of a unanimous court that “Congress enacted ERISA to ‘protect . . . the interests of participants in employee benefit plans and their beneficiaries.’” That same year, Justice Amy Coney Barrett contended “that Congress did not intend for courts to consider” particular factors. More recently, Chief Justice John Roberts wrote in Learning Resources v. Trump that “[t]he Government points to no statute in which Congress used the word ‘regulate’ to authorize taxation.” In the same cases, Justice Ketanji Brown Jackson added that “probing Congress’s intent is the right inquiry.” And in another high-profile example, Roberts contended in King v. Burwell that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

Many more examples could be offered. And to the extent those examples are only intended to suggest that Congress plays a role in making law, the examples are not particularly problematic. A problem does arise, however, when those routine references to congressional lawmaking allow a jurist to slip into thinking that Congress makes law alone. That is because, at least in the mine-run of cases, the Constitution does not empower Congress to unilaterally make law. Instead, the Constitution ordinarily requires Congress to make law in concert with the president. Thus, by routinely focusing on “Congress” as the relevant lawmaker, the court gives short shrift to the president’s role in the lawmaking process and risks systematically favoring one of the two political branches that the Constitution empowers to shape federal statutes.

At least three constitutional provisions speak to the president’s influence in the lawmaking process. The first is the presentment clause, which requires bills to be presented to the president for his potential veto. Because legislators in Congress know that they must present bills to the president, the presentment clause allows for the president’s legislative agenda to influence legislative text long before it is formally sent for presidential review. A legislator aiming to turn a bill into law, for example, would be wise to determine whether the bill is consistent with the president’s legislative agenda, as that can influence how the bill is drafted. A bill consistent with the president’s legislative agenda might be drafted to squeak by with simple majorities in the House and Senate (or a 60-vote majority in the Senate if the self-imposed filibuster is in play). A bill at odds with the president’s legislative agenda, by comparison, should be drafted in a way that can secure two-thirds support in each legislative chamber – which is the constitutionally required supermajority for overriding a presidential veto.

The second clause speaking to the president’s role in the lawmaking process is the recommendations clause, which states that the president “shall . . . recommend to [Congress’] Consideration such Measures as he shall judge necessary and expedient.” This can give the president an important first-mover advantage. Consider the State of the Union Address, where the president commonly makes legislative recommendations. After the president’s address, a large segment of the country typically rallies behind the president’s legislative proposals, while a separate segment of the country typically takes the opposing position. What those competing segments share is a focus on the president’s legislative proposals, giving the president’s proposals vastly more attention than what might be offered to proposals from ordinary legislators.

The third clause is the vice president as presiding officer clause, which empowers the vice president to cast tie-breaking votes in the Senate. While the recommendation and presentment clauses grant the president the ability to influence legislation toward the start and end of the lawmaking process, the vice president affords the president opportunities to influence legislation during the middle of the lawmaking process. As the Supreme Court recognized in Trump v. United States, “the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress.”

To be sure, although the president has tremendous influence in the lawmaking process, it does not follow that the president will always get his way in that process. Congress might ignore a presidential recommendation, override a presidential veto, or make political alliances so that the vice president is not given the chance to cast tie-breaking votes. But even in those situations, the president’s mere participation in the process can influence what ultimately becomes law. As an example, and to refer again to the dynamics imposed by the presentment clause, legislators who expect a presidential veto might account for it by initially drafting legislative text so that it can secure the necessary two-thirds veto-override support in Congress. Thus, a bill that might have been written one way had the president not been involved in the lawmaking process might be written very differently simply because of the president’s role.

In short, the president plays an important part in the lawmaking process. Given as much, the Supreme Court should abandon its practice of regularly referring to “Congress” as if that branch makes law alone. Rather, the court should more routinely refer to both branches involved in the multi-branch lawmaking process. The court can do so by referring to statutes “passed by Congress and signed by the President,” or to national policy “made by Congress and the President in the legislative process,” to borrow two helpful phrases used by Justice Brett Kavanaugh.

My call for the court to stop treating Congress as a unilateral lawmaker is not simply a matter of semantics. Substantial interpretive consequences flow from recognizing the president’s role in the lawmaking process. I will conclude by briefly discussing three such consequences here (you can find additional analysis of two of these points in a forthcoming Alabama Law Review article).

First, recognizing the president’s role in the lawmaking process gives reason to question methods of statutory interpretation that focus on legislative intent and rely on legislative history, which justices such as Jackson have strongly advocated for. To the extent that a jurist’s focus on “legislative intent” means a focus on “congressional intent,” that focus is in serious tension with the multi-branch lawmaking process outlined in the Constitution. That is because, even if one assumes that the 535 legislators in Congress share an identifiable intent, that congressional intent might be at odds with the president’s intent. An exclusive focus on Congress’ intent is therefore constitutionally problematic. At minimum, any judicial focus on “legislative intent” should be broad enough to include the collective lawmaking intent of both Congress and the president.

Relatedly, a jurist who uses legislative history to elucidate legislative intent should be careful to consider legislative history from both Congress (e.g., committee reports and floor speeches) and the president (e.g., signing statements and presidential speeches). Otherwise, the jurist would risk systematically favoring the lawmaking views of one of the two branches that the Constitution empowers to collectively shape federal law.

Second, and unintuitively, recognizing the president’s role in the lawmaking process could help the court empower Congress. The court has recently signaled an interest in empowering Congress by overruling Chevron deference and embracing the major questions doctrine – two doctrinal moves that reduce the executive branch’s ability to sidestep Congress by unilaterally enacting regulatory policies. But the court is not likely to catch each and every executive-branch effort to sidestep Congress. And so the court might complement its recent doctrinal moves by giving presidents the incentive to more frequently turn to Congress as a partner in the multi-branch lawmaking process.

The court can give presidents incentives to turn to Congress by signaling that statutes will not be systematically interpreted in favor of Congress’s “intent,” but will instead be interpreted neutrally and in a way that can sometimes benefit the president. The situation might be analogized to a businessperson who has a new incentive to come to a contract-negotiation table, rather than pursue unilateral action, after learning that the contract will be interpreted neutrally and in favor of neither contracting party.

To be sure, jurists who worry that modern presidents already exercise too much power might object to interpreting the end-product of the multi-branch lawmaking process (i.e., legislative text) in a way that does not favor Congress over the president. Those jurists might instead think that the best way to respond to an overly powerful president is to empower Congress by treating Congress as if it unilaterally makes law. But that would be giving Congress more power than the Constitution affords. And the proper solution to any one branch exercising too much power is not to double the error by granting too much power to a separate branch. Instead, the proper solution is to ensure that no branch oversteps constitutional limits. And enforcing constitutional limits brings us to a third and final consequence that follows from recognizing the president’s role in the lawmaking process: a need to reconceptualize the nondelegation doctrine.

The nondelegation doctrine imposes a constitutional limit on statutory delegations of lawmaking discretion to the executive branch. The doctrine is not aggressively enforced, and it has been something of a dead letter in recent decades. Jurists who are concerned that modern presidents exercise too much authority, such as Justice Neil Gorsuch, have therefore looked to reinvigorating the nondelegation doctrine as a means of reining in the executive branch. It should come as a relief to those jurists, then, to note that respecting the president’s role in the lawmaking process would not give independent reason to abandon efforts to reinvigorate the nondelegation doctrine. However, respecting the president’s role in the lawmaking process would require the nondelegation doctrine to be reconceptualized so that it better accounts for the constitution’s design.

Today, the nondelegation doctrine is sometimes conceptualized as a limit on Congress’ ability to delegate Congress’ lawmaking power to the president. But that is a problematic framing because the Constitution does not grant Congress unilateral lawmaking power in the first place (bracketing potential complications relating to special topics such as federal property). Yes, Congress alone is vested with certain “legislative Powers,” but, as I have explained, to use those powers to make law, Congress must ordinarily work through a multi-branch lawmaking process that includes the president. Thus, a better conception of the nondelegation doctrine would be to understand it as limiting Congress and the president from agreeing to statutes that empower anyone else besides Congress and the president (acting in concert through the proper channels) from making law. That would mean limiting Congress’s and the president’s ability to statutorily empower the president to make law unilaterally.

***

The court frequently treats Congress as if that branch makes law alone. But the Constitution sets out an arduous multi-branch lawmaking process that allows for the president to shape legislative text from top to bottom. Going forward, the court should better account for the Constitution’s multi-branch lawmaking process by more regularly referencing both the Congress and the president when referring to the creation of federal statutes. Doing so would help the court better respect the important interpretive consequences that flow from recognizing the president’s role in shaping federal law.

Explainers written that weekend told readers not to read anything into Roberts’ initial order. An administrative stay, TIME wrote, does not reflect a case’s outcome. ABC News described the order as taking no position on the government's appeal.

That is the standard narrative, and it may be right. But it is an empirical claim, and as far as I can tell, nobody has tested it. So I did. The answer matters beyond the ballroom. An administrative stay decides what does (or doesn’t) happen while the Supreme Court makes up its mind, and it can be the first public sign of how seriously the court is taking an application.

So how often do the justices issue an administrative stay in a case before deciding it, and does this tell us anything about what comes next?

The tools of the circuit justice

When a party asks the Supreme Court for emergency relief, the application does not go to the full court. It goes to a single justice, the one assigned to the federal circuit the case comes from. Roberts handles the U.S. Court of Appeals for the D.C. Circuit, which is why the ballroom application landed on his desk on Aug. 13.

The circuit justice then has options. He or she can act on the application alone; if the justice denies it in chambers, as Justice Brett Kavanaugh did recently, the court’s rules let the applicant renew the application to any other justice. If they decide to refer the case to the full court, the circuit justice has two tools before doing so.

The first is a request for a response, an order directing the parties to file a response by a set date. (In the ballroom case, for example, Roberts requested a response by noon on Aug. 18.) And that might be the last thing parties hear from the court before its decision. Indeed, for much of the emergency docket’s history, the justices frequently ruled on an application with nothing before them but the applicant’s papers and the record below.

The second is the administrative stay, sometimes called a temporary stay: a short freeze of the lower-court order to preserve the status quo. In this case, the temporary stay issued by Roberts on Aug. 21 came hours before the D.C. Circuit's mandate would have halted the cranes.

Neither order contains reasoning or a legal test. When the full court decides whether to grant a stay, it asks whether it is likely to take up the case and reverse, and whether the parties will suffer irreparable harm in the meantime. No comparable standard governs when a circuit justice requests a response or issues a temporary stay, at least not one the court has announced. That is why the explainers above told readers to read nothing into Roberts’ order. But these orders get read as tea leaves anyway, because they are the only thing the court has said.

My dataset of emergency applications can help determine whether the tea leaves actually mean anything. The figures that follow cover 476 substantive applications resolved by the full court from the 2000-01 term through the 2024-25 term. They exclude execution-related applications, which follow their own rhythms, and refiled applications. (The ballroom case belongs to the current term and is not in these numbers. It will be in the new stat pack coming next month!)

How often does this happen?

Let’s start with the response request, which has quietly become the norm. By the mid-2010s the court requested a response in roughly three quarters of substantive emergency applications. In the 2023-24 term it did so a striking 98% of the time, and in the 2024-25 term, 93%. Nothing in the court’s rules requires this. The other side responds when the justice asks it to do so, and they now ask almost every time.

The administrative stay is a different story. Of the 476 applications, only 59 drew one, about 12%, with no clear trend over time. (The temporary stay also almost never travels alone: 53 of the 59 came alongside a request for a response.)

Applications that drew both orders took a median of 13 days to resolve; applications that drew neither took a median of two. The administrative stay thus manages things in the meantime by keeping the lower court order from taking effect while the Supreme Court hears from the other side.

That may sound like simple housekeeping. But deciding what stays in place during the wait is a real decision with real consequences. In the ballroom case, the injunction from the lower court would have stopped construction at midnight. Roberts’ temporary stay meant work continued for the 10 days it took the Supreme Court to decide on the emergency application. Some things, like a building going up, a person being removed from the country, or federal funds being spent, are hard to undo afterward.

But do they predict anything?

Applications that received an administrative stay obtained relief (their emergency request was granted) 54% of the time. Applications that did not obtained relief only 34% of the time. The odds of winning relief after a temporary stay were thus more than twice the odds without one.

I think it is worth asking whether something other than the temporary stay is producing that gap in grants of relief. There are two possibilities here. The first is timing. Response requests became routine over the same 25 years, so cases with temporary stays and those without might simply be drawn from different eras. Limiting the data to the 2015 term forward puts every application on the same footing, and the gap holds: 57% are successful with a freeze against 40% without. The second possibility is that the response request is the real tell. But, comparing only among applications where a response was requested, the temporary stay still separated the winners from the losers, 55% against 38%.

The temporary stay in a case also predicts how much the court will say. Applications with an administrative stay produced a written opinion 27% of the time; applications without one, 10%. (Dissent rates, for what it is worth, barely differed.)

The ballroom case fits the pattern: there was a temporary stay, a response requested, an application granted, and a written opinion issued. And Roberts’ own dissent supplies a caveat. The temporary stay tracked what the court did, not how the circuit justice voted. Nor is this unprecedented: Justice Samuel Alito froze both the mifepristone litigation and Murthy v. Missouri in 2023, the court granted relief twice, and Alito dissented both times.

Is this a Roberts thing?

No. What follows are rates among applications presented to each justice, limited to justices with at least 15. (Three current justices, Neil Gorsuch, Ketanji Brown Jackson, and Amy Coney Barrett, do not yet have enough presented applications to include, a function of how recently they joined the court rather than anything about how they’ve ruled.)

Alito issued administrative stays in 23% of the applications presented to him, and Roberts in 16%. At the other end is Justice Elena Kagan at 3%, two temporary stays across 59 applications, the third-largest caseload in the data. Kagan requested responses in 92% of her applications, essentially Alito’s rate. The two justices use one tool the same and the other completely differently.

By subject matter, administrative stays clustered in cases about judicial power and due process. Judicial power cases carry the highest relief rate of any category, at 62%. Civil rights applications drew a temporary stay just 5% of the time across 94 applications.

The takeaway

The explainers noted above were right that an administrative stay is not a ruling on the merits, and it doesn’t tell you how the justice who issues one will vote, as Roberts’ own dissent shows. But it would be wrong to conclude that it tells you nothing. Over 25 terms, applicants who received a temporary stay went on to win relief more than half the time; applicants who did not won about a third.

Most of what we focus on and know about the emergency docket comes from its results: which applications the court grants, which it denies, and who dissents. But the docket contains more than outcomes. It records the steps the court takes to get there, and those steps in turn can reveal what is most likely to follow.

Justice Brett Kavanaugh, who initially handles emergency appeals from the U.S. Court of Appeals for the 8th Circuit, directed the state and the supporters of the new map to respond by 2 p.m. EDT on Wednesday.

The challengers’ 39-page filing was the latest chapter in a labyrinthine saga that has already been to the U.S. Supreme Court twice, from two separate – state and federal – court systems. The dispute began last year, when – with President Donald Trump’s encouragement – Missouri adopted a new map. In December, opponents of the state’s new map – including the group People Not Politicians and its executive director, Richard von Glahn – submitted more than 300,000 signatures in support of a petition to put the new map up for a vote in November 2026. Missouri’s top election official, Secretary of State Denny Hoskins, rejected the petition on Aug. 4, 2026 – the last day to do so – and Missouri conducted its August primary with the new map.

Von Glahn went immediately to state court, asking it to reverse Hoskins’ decision and block Missouri from using the new map. On Sept. 3, the Missouri Supreme Court unanimously granted that request. It concluded that, under the state’s constitution, the referendum petition “was legal, sufficient, and timely.” As a result, it wrote, the new map never went into effect and will not do so “unless and until approved by the voters at the November 2026 general election.”

The Missouri Supreme Court rejected as “wholly unpersuasive” Hoskins’ argument that the failure to use the new map would lead to “confusion, expense, and practical difficulties.” “[T]hese arguments are particularly misplaced” when Hoskins failed to act on the petition until August, leading to the problems, the court suggested.

Hoskins went to the Supreme Court on Sept. 4, asking the justices to intervene. Kavanaugh denied that request four days later without referring it to the full court.

While Hoskins was seeking relief from the Missouri Supreme Court’s ruling in the U.S. Supreme Court, Rep. Robert Onder, a Republican who won the Republican nomination for the state’s 3rd congressional district in the August 2026 primary, as well as another congressional candidate and two individual voters, went to federal court, seeking to reinstate the 2025 map. Onder and the other candidate – Richard Brattin, who won the Republican nomination for the state’s 5th congressional district in August – contended that if the November elections go forward using the 2022 map, their districts would be significantly different from the districts in which they won the nominations in August. The individual voters contended that they would vote in a different district in November under the 2022 map than they had in August.

Shortly after Kavanaugh’s order denying Hoskins’ request was released, Chief U.S. District Judge Stephen Clark issued a temporary restraining order that directed the state to use the 2025 map. Clark acknowledged that “[c]onducting state elections in accordance with the Missouri Constitution undoubtedly qualifies as an important interest.” But, he concluded, the challengers in the federal case “face irreparable harm” without a temporary restraining order “because many Missouri voters would have to cast their general-election votes for candidates whom they had no role in nominating.”

After the U.S. Court of Appeals for the 8th Circuit declined to pause Clark’s order, von Glahn and People Not Politicians asked the justices to step in. They told the court that Clark’s order “requires Missouri to conduct its congressional election using a map that, under the authoritative decision of Missouri’s highest court, ‘is not the law and has never been the law.’” Moreover, they added, election officials in Missouri had indicated that the election in November could be conducted using the 2022 map.

Hoskins urged the justices to leave Clark’s order in place, telling them that putting it on hold “would change Missouri’s congressional map for a third time in a week—and … would come after the state-law deadline to alter ballots and just nine days before the federal-law deadline to send out military and overseas ballots.” Indeed, he noted, “county election officials have already started printing ballots in compliance with” Clark’s order.

But within minutes after Hoskins filed his brief opposing a stay on Sept. 10, the Supreme Court – in a brief, unsigned order – granted the request by von Glahn and People Not Politicians to block Clark’s order. It stated that Clark’s order would remain on hold “pending the disposition of the appeal in and disposition of a petition for a writ of certiorari in this Court, if such a writ is timely
sought.” The 8th Circuit, which fast-tracked the proceedings, heard oral arguments on Sept. 17, and issued its decision on Monday.

In an unsigned, 35-page opinion, the 8th Circuit held “that Missouri’s current plan to use the 2022 map in the November 2026 general election violates the Constitution. Only use of the 2025 map complies with the Constitution and federal law.” In particular, the court of appeals said, because the state used the 2025 map in the August primaries, using a different map in the November general election would violate Article I, § 2 of the Constitution, which provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States”: among other things, voters who, as a result of the change in maps, did not have an opportunity “to vote for the nominees that will appear on their November 2026 general election ballot” are “deprive[d] … of their constitutional right of choice.”

According to the court of appeals, the Purcell principle – the idea that federal courts should not change election rules too close to an election – “supports, not prevents” a ruling in favor of Onder and the other plaintiffs. “Using the 2025 map … will lead to the least amount of confusion for voters subjected to a string of changes this month,” the court of appeals wrote. And in any event, the court continued, “[a]ny confusion stems from the last-minute decision by a state court to switch the congressional map.”

The 8th Circuit instructed the district court to enter a permanent order requiring the state to use the 2025 map, but also to put that order on hold until 5 p.m. CDT on Sept. 28 to give the Supreme Court time to weigh in.

People Not Politicians and von Glahn returned to the court late Tuesday night, asking the justices either to “clarify” that their Sept. 10 order “means what it says” or pause the 8th Circuit’s Monday ruling. The Supreme Court’s Sept. 10 order, they wrote, froze Clark’s order – which had barred the state from using any map other than the 2025 map – “‘pending the disposition of the appeal in the United States Court of Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought.’” That order, they said, is still in effect, because the court “has not adjudicated a petition for certiorari and the time for seeking certiorari has not yet expired.”

They stressed that – as election officials across the state have stated – it is too late to return to the 2025 map. Ballots have already been sent to military and overseas voters, and Sept. 22 was the deadline for election officials to “print and make available absentee ballots.” Indeed, they noted, von Glahn himself had already “cast his ballot for the November general election” on Tuesday, “using a ballot issued under the 2022 map.” “That is the electoral disorder Purcell exists to prevent—on steroids,” they contended.

Moreover, the challengers continued, the 8th Circuit’s ruling is doubly flawed. First, it “requires Missouri to conduct the election under a map its own Supreme Court has held ‘is not the law and has never been the law’” – thereby creating “conflicting judicial commands” for state officials. Second, it “identifies from whole cloth a right under Article I, Section II that no federal court has recognized: a right to vote for the same candidates within the same constituency at successive stages of an election, even when state law prohibits that result.”

Voters like von Glahn, who have already cast their ballots or will do so before Sept. 28, the challengers wrote, will suffer permanent harm if the 8th Circuit’s decision is not put on hold. “At best, their already-cast votes would get thrown out and they would be forced to cast another ballot in the November general election under new district lines. At worst, those voters will be precluded from voting at all in the general election.”

Justice John Marshall Harlan II resigned from the Supreme Court on this day in 1971 while dealing with “failing health.” He died of cancer three months later.

Please consider joining us on LinkedIn Live tomorrow for a discussion between Amy and Briefly’s Adam Stofsky about the upcoming term. Register here for the event, which will begin at 1 p.m. EDT.

At the Court

Late on Tuesday, the dispute over congressional redistricting in Missouri returned to the Supreme Court’s interim docket, when opponents of the state’s new map, which favors Republicans, again asked the justices to prevent it from being used in November’s elections. A response to the request is due today by 2 p.m. EDT.

On Sept. 11, the Supreme Court dismissed an immigration case on whether noncitizens have a due process right to bond hearings amid an extended detention that was scheduled for argument in October. On Monday, the Trump administration brought the issue back to the court in a new petition for review. For more on the filing, see the On Site section below.

Also on Monday, the Trump administration filed a petition for review on a district court’s authority over claims by a noncitizen, Georgetown University scholar Badar Khan Suri, challenging the validity of his detention while he awaits removal proceedings, when the claims also go to the validity of the grounds for his removal – an issue that district courts do not have the authority to review. Learn more about this dispute in the Morning Reads section.

On Tuesday, Justice Elena Kagan denied a request to intervene in a multistate custody dispute between a California couple and their surrogate. For more on the case, see the Morning Reads section.

The Trump administration has asked the Supreme Court to clear the way for it to use the Department of Homeland Security’s Systematic Alien Verification for Entitlements database to identify noncitizens on state voter rolls. The dispute is now fully briefed, and the court’s decision could come at any time.

On Monday, the justices will gather at the “long conference” to consider the petitions for review that built up during their summer recess.

Morning Reads

Trump asks Supreme Court to allow DHS detention of pro-Palestinian scholar

Stephen Dinan, The Washington Times

The Trump administration on Monday “asked the Supreme Court to hear a case involving a Georgetown University scholar who was targeted for deportation last year after a government artificial intelligence tool flagged his social media posts as too pro-Palestinian,” according to The Washington Times. Badar Khan Suri “came to the U.S. on a temporary visa to work as a postdoctoral fellow.” While at Georgetown, he became “one of the first targets of the Trump administration’s campaign last year to identify and try to deport pro-Palestinian foreigners in the academic community.” Suri challenged his arrest on First Amendment grounds before a “federal district court and won both release and an order barring his deportation.” The U.S. Court of Appeals for the 4th Circuit later upheld that decision. In the new petition for review, U.S. Solicitor General D. John Sauer contends that the district court did not have the authority to consider Suri’s case, which, in Sauer’s view, should have first been weighed by an immigration court before being appealed to a federal appeals court.

Supreme Court stays out of custody dispute between California couple and surrogate

Melissa Quinn, CBS News

Justice Elena Kagan on Tuesday denied a request “to intervene in a custody dispute between a California couple and surrogate who gave birth to a child last month with a rare and serious heart defect,” according to CBS News. McKenna West “had asked the justices to halt a California court order declaring the couple, Omar Ahmed and Nausheen Gilkar, to be the child’s parents,” and her request went to Kagan, who “handles emergency appeals arising from California.” The dispute began when “a 20-week anatomy scan showed the baby had ... a severe, life-threatening heart defect.” “Gilkar and Ahmed requested West obtain an abortion,” but “West refused and traveled to Texas,” where she had the baby.

US opposes part of Apple contempt finding in Epic Games case at US Supreme Court

Mike Scarcella, Reuters (paywalled)

In the upcoming term, the Supreme Court will consider how clear a court order must be before a litigant can be held in contempt for violating it in a case addressing a judge’s decision to hold Apple in civil contempt amid the company’s long-running dispute with Epic Games. “In a friend-of-the-court brief on Monday, the Justice Department urged the justices to narrow the grounds for holding parties in civil contempt. Such an order would benefit Apple, but the DOJ said it filed its brief in support of neither Apple nor Epic Games,” according to Reuters. “Civil contempt is ... appropriate only if the defendant’s conduct is clearly covered by [an] injunction’s express terms,” the brief says.

Why a Supreme Court justice visited Utah this week

Bridger Beal-Cvetko and Daniel Woodruff, KSL

Justice Samuel Alito was in Utah on Monday to show support for one of his former clerks. “Alito was a guest for the investiture of Jay Jorgensen, who was confirmed to the recently-expanded Utah Supreme Court in June” and who “clerked for Alito when he was a judge on the U.S. Court of Appeals for the Third Circuit more than 30 years ago,” according to KSL. The justice “administered the oath of office to Jorgensen” and also attended a private meeting with Utah “Gov. Spencer Cox, Lt. Gov. Deidre Henderson, and other members of the Utah Supreme Court.”

Antonin Scalia Prepares for His Confirmation Hearing

Ed Whelan, Confirmation Tales

In a post for his Substack, Ed Whelan shared excerpts from his conversation with U.S. District Judge Patrick J. Schiltz about the process of preparing Antonin Scalia for his confirmation hearings. (Schiltz was a clerk for Scalia on the U.S. Court of Appeals for the District of Columbia Circuit when Scalia was nominated to the Supreme Court and then assisted him throughout the confirmation process.) Schiltz recalled that Justice William Brennan was among those who called to congratulate Scalia and that Scalia said he shared a “warm and gracious greeting.” Schiltz also noted that “Justice [William] Rehnquist had called [Scalia] at Justice [Harry] Blackmun’s behest because Justice Blackmun had heard that Judge Scalia smoked and he wanted to make sure Judge Scalia knew that smoking was forbidden during Conference.”

On Site

Court News

Trump administration takes important immigration question back to the Supreme Court

Like Genalo v. Black before it, Genalo v. D.C. addresses due process rights and Section 1226(c) of the Immigration and Nationality Act, which requires the detention of noncitizens who have committed certain crimes and who are awaiting removal proceedings. Specifically, the case asks at what point, if any, noncitizens detained for an extended period under Section 1226(c) have a due process right to a bond hearing under the Fifth Amendment and what the government must show to justify continued detention if such a hearing is indeed required.

Contributor Corner

The court’s coming climate-change case and the very confused doctrine of preemption

In his Courtly Observations column, Erwin Chemerinsky explored the significance of Suncor Energy, Inc. v. County Commissioners of Boulder County, which will be argued on Oct. 5 and “poses the issue of whether suits under state law against energy companies for their role in causing climate change are preempted, or superseded, by federal law.” Chemerinsky noted that, while the Supreme Court regularly addresses preemption issues, “it is difficult to find a pattern in the court’s handling of them.”

Contributor Corner

The Supreme Court refuses to become partisan in two fights over the midterms

In his Justice, Democracy, and Law column, Edward Foley explored the court’s handling of interim docket disputes on Missouri redistricting and mail-in voting, contending that its decisions refute the claim that the current Supreme Court is a purely partisan institution. “In both cases, the court foiled what Republicans – and specifically the Trump administration – wanted,” Foley wrote.

Podcasts

Advisory Opinions

Are Marijuana Contracts Legal in Federal Court?

Sarah Isgur and David French discuss the upcoming “long conference” that marks the unofficial start of the new Supreme Court term and a prosecutor being referred to the Department of Justice for obstruction of justice. They also review several circuit-court cases, including breaches of contract between marijuana-related businesses.

Ask Amy

Q: The official start of the Supreme Court’s new term is just 12 days away. But the unofficial start is even sooner: Monday, Sept. 28, when the justices will meet for their “long conference” – their first regularly scheduled conference since late June, at which they will consider all of the petitions for review that have accumulated over the summer and likely grant a good deal of new cases to hear. How do you prepare for this conference?

A: For reporters who cover the court, the long conference is a daunting one for which to prepare. At almost every other time of year, the justices will only grant petitions for review that they have considered at two or more conferences. They began this practice more than a decade ago, presumably to use the additional time to vet cases to ensure that there are no flaws that might keep the court from reaching the merits of the dispute. But the court normally grants at least an initial batch of cases from the long conference after considering them at that conference for the first time, taking a few days between the conference and announcing the grants to do its due diligence.

To get ready for the long conference, I draft “prewrites” – stories anticipating that the court will grant review. There are a variety of cases that might get my attention – for example, petitions for review by the federal government (because the U.S. solicitor general tends to have a good batting average in getting the court to grant review), petitions involving questions that the court has already agreed to decide but ultimately did not, cases in which the underlying issue is sufficiently important or interesting that I want to be ready even if it seems like it could be a longshot, and cases in which the federal government has filed a “friend of the court” brief recommending that review be granted.

The start of the new term also means a new batch of stories previewing the cases that the court has already agreed to take up, and in which it will hear arguments. Law schools and lawyers’ groups (among others) often host events to look ahead at the new term, featuring experts on the court; these events can be very useful in providing details about the individual cases and trends surrounding the court.

Finally, although the start of the new term once signified a shift from the summer doldrums to a burst of activity, it no longer serves as the same kind of milestone that it once did. With the rise of the emergency docket, the summer recess is a stretch on the calendar – but not necessarily a break.

SCOTUS Quote

MR. SCHNEIDER: “The test we posit, Your Honor, focuses on people and property. The test would look first to the location of employees, tangible properties and production activities, and then second to income earned, purchases made and where sales take place. Mr. Chief Justice, did the Court have interest in the jurisdictional argument?”

CHIEF JUSTICE ROBERTS: “I don't know.”

(Laughter.)

“I can only speak for one member of the Court, and that one doesn't.”

— Hertz Corp. v. Friend (2009)

Ten days later, on Monday, Sept. 21, the administration filed a new petition for review that covers the same essential ground as the dismissed case. In doing so, however, it skipped over the federal appeals court that would typically weigh in before the Supreme Court. “The Court has previously granted certiorari before judgment to allow a case to replace one that was dismissed,” Sauer wrote, urging the justices to “do the same here.”

Like Genalo v. Black before it, Genalo v. D.C. addresses due process rights and Section 1226(c) of the Immigration and Nationality Act, which requires the detention of noncitizens, including green card holders, who have committed certain crimes and who are awaiting removal proceedings. Specifically, the case asks at what point, if any, noncitizens detained for an extended period under Section 1226(c) have a due process right to a bond hearing under the Fifth Amendment and what the government must show to justify continued detention if such a hearing is indeed required.

The Supreme Court previously addressed Section 1226(c) in 2018’s Jennings v. Rodriguez, holding that the statute itself did not require periodic bond hearings. While weighing that case, the justices considered – but did not resolve – the question of whether, amid a lengthy detention, due process would eventually require such hearings.

In June, the court granted review in Genalo v. Black to answer that question. The noncitizens in that case, Carol Williams Black and Keisy G.M., had been detained for approximately seven and 21 months, respectively, under Section 1226(c). However, Black had voluntarily left the United States even before the justices agreed to take up the case, while New York Gov. Kathy Hochul pardoned G.M. in August, which meant he was no longer deportable under the statute. In September, the Trump administration and attorneys for the challengers agreed that the case should be dismissed.

The new case, Genalo v. D.C., involves a man identified only as D.C. in court filings, who was born in the Dominican Republic in 1963 and “unlawfully entered the United States” “[a]t an unknown time and place,” according to the petition. While in the U.S., D.C. has apparently “been convicted of multiple crimes,” and the Department of Homeland Security detained him under Section 1226(c) in September 2025 after his most recent prison stay ended. In March, D.C. challenged his prolonged detention as a violation of his due process rights, and a federal district court agreed that he had a constitutional right to a bond hearing. That bond hearing has since taken place, and D.C. was released from DHS custody on March 31.

The Trump administration on Monday asked the Supreme Court to review that district court ruling and return the issue of immigration detention without bond to the 2026-27 oral argument docket. D.C.’s response is due by Oct. 21.

In a second petition for review filed on Monday, the Trump administration asked the justices to address district courts’ authority over claims by a noncitizen challenging the validity of his detention while he awaits removal proceedings, when the claims also go to the validity of the grounds for his removal – an issue that district courts do not have the authority to review. The case centers on the Trump administration’s decision to detain Georgetown University scholar Badar Khan Suri and begin removal proceedings. Suri, an advocate of Palestinian rights, contends that the detention violated his free speech and due process rights.