On Saturday, two companies that manufacture mifepristone came to the court, asking the justices to pause a ruling by the U.S. Court of Appeals for the 5th Circuit in a lawsuit by Louisiana that reinstated the requirement that the drug, which is used in about 60% of abortions nationwide, be dispensed only in person. The companies, Danco Laboratories and GenBioPro, both told the justices that the 5th Circuit’s order was “unprecedented.” Danco argued that the order “injects immediate confusion and upheaval into highly time-sensitive medical decisions,” while GenBioPro said that the order “has unleashed regulatory chaos.”

Nearly two years ago, the Supreme Court ruled that doctors and medical groups opposed to abortion did not have a legal right to sue, known as standing, to challenge the Food and Drug Administration’s expansion of access to mifepristone.

The 2024 case, FDA v. Alliance for Hippocratic Medicine, was filed in federal court in Texas by several individual doctors who are opposed to abortion on religious or moral grounds, as well as medical groups whose members are opposed to abortion. The plaintiffs asked U.S. District Judge Matthew Kacsmaryk to rescind both the FDA’s initial approval of the drug in 2000 and its 2016 and 2021 expansions of access to the drug, arguing that mifepristone is unsafe and that the process that the FDA used to approve the drug was flawed.

The FDA, as well as several leading medical groups, countered that, based on extensive evidence, mifepristone is safe and effective. Kacsmaryk, however, suspended the FDA’s approval of the drug and the agency’s later changes, made in 2016 and 2021, to the conditions on the use of the drug – which included allowing the drug to be used through the 10th week of pregnancy, allowing health-care providers who are not physicians to prescribe the drug, and permitting it to be prescribed without an in-person visit.

The FDA and Danco, which manufactures mifepristone, appealed to the 5th Circuit. The court upheld the part of Kacsmaryk’s ruling that rolled back the agency’s 2016 and 2021 changes that had expanded access to mifepristone.

In April 2023, the Supreme Court temporarily put the 5th Circuit’s ruling on hold, ensuring continued access to the drug. In June 2024, it reversed the lower court’s ruling and sent the case back to the lower courts.

In his opinion for the court, Justice Brett Kavanaugh acknowledged what he characterized as the challengers’ “sincere legal, moral, ideological, and policy objections” to elective abortion “by others” and to the FDA’s 2016 and 2021 changes to the conditions on the use of the drug. But the challengers could not contest those changes, he said, because they had not shown that they would be harmed by the FDA’s mifepristone policies; under the Constitution, these kinds of objections are not enough to bring a case in federal court.

In October 2025, Louisiana filed its own lawsuit in federal court to seek the reinstatement of the in-person dispensing requirement. It emphasized that it had standing to sue because it had “incontrovertible evidence that … doctors and others are (as the Biden administration intended) sending streams of mifepristone by mail into Louisiana for the express purpose of causing thousands of abortions in Louisiana every year. That conduct directly violates Louisiana’s abortion laws, which – subject to very narrow exceptions (such as to save the life of the mother) – bar virtually all abortions, and prevents Louisiana from protecting the lives of unborn babies despite the promise of Dobbs” v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision holding that the Constitution does not confer a right to an abortion. “That conduct has directly generated medical emergencies that harm Louisiana women,” the state wrote, “and emergency room visits that harm the state.”

Rosalie Markezich, an individual plaintiff who joined the state’s lawsuit, said that in 2023 she was coerced into taking abortion drugs “that her boyfriend obtained via the U.S. Postal Service from a doctor in California.” If the in-person dispensing requirement had been in effect, she said, she “would have received the protection of a private in-person medical appointment,” during which she would “have been able to tell a doctor that she did not want an abortion.”

After a federal judge put the case on hold while the FDA conducts its own review of mifepristone’s safety, Louisiana went to the 5th Circuit, asking that court to re-impose the requirement while litigation continues. The court of appeals ruled that Louisiana has a right to sue because, by allowing mifepristone to be prescribed by telehealth and sent by mail, the “FDA ‘opened the door for mifepristone to be remotely prescribed to Louisiana women,’” even though Louisiana generally bars abortion.

In its emergency application, Danco tells the justices that, like the doctors and medical groups in 2024, “Louisiana is not required to ‘prescribe or use mifepristone’ or to ‘do anything or to refrain from doing anything’ as a result of FDA’s actions.” It argues that the 5th Circuit should have applied the same analysis that the Supreme Court used in holding that the doctors and medical groups did not have standing in 2024. It stresses that the Supreme Court “has already held that claims of downstream financial harm by doctors who provide follow-up care for treating complications after a medication abortion is too attenuated” to provide standing to sue. Here, it says, “Louisiana’s theory—that it can base standing on having to pay those doctors if someone who received FDA-approved mifepristone through the mail seeks follow-up care to treat a complication—is a more attenuated version of the” theories that the court specifically rejected two years ago. And Louisiana’s claim that it is injured because of the disconnect between federal law and its own state law is not the kind of injury that courts can review, it said.

GenBioPro contends that lifting the 5th Circuit’s order “will allow the years-long status quo to remain in force while the Food and Drug Administration (‘FDA’) completes its ongoing review” of mifepristone’s safety. If that order remains in place, it argues, “it would eliminate access to mifepristone through certified pharmacies and by mail, abruptly cutting off access for patients nationwide—including in the States that do not ban abortion.” Moreover, the company added, the 5th Circuit’s ruling requires the FDA “‘to alter the regimen for medical abortion’ based on the ‘court’s own evaluation’ of whether the FDA got the science right.”

What’s more, GenBioPro writes, the lower court’s “‘unusually broad and novel view of standing’” “would allow States to challenge virtually any agency action whenever they allege downstream costs or interference with state policy.”

The drug companies also ask the court to issue a short-term order, known as an administrative stay, that would put the 5th Circuit’s ruling on hold while the justices consider their request.

The drug companies’ requests go initially to Justice Samuel Alito, who handles emergency requests from the 5th Circuit. Alito is likely to ask Louisiana to respond before acting on the companies’ requests.

Disclosure: John Elwood, a contributor to SCOTUSblog, represents GenBioPro in his role as a partner at the firm Arnold & Porter.

The Supreme Court on Monday heard argument in Monsanto Co. v Durnell, a complex dispute over whether a federal law governing pesticide labeling and registration prevented a Missouri jury from awarding $1.25 million to a volunteer gardener who alleged that Monsanto had failed to warn that its popular weed killer Roundup causes cancer. The preemption arguments – which centered around whether state law could add a warning requirement when the federal agency, the Environmental Protection Agency, has not required any warning – are intricate and have been widely covered elsewhere, except for one aspect involving administrative deference that I will return to at the end of this column. But first, it’s worth zooming out to understand the case’s importance for the bigger picture – not only for the billions of dollars at stake in the more than 60,000 Roundup cases proceeding across the nation, but also for how the case implicates important, and complicated, questions about class actions and other forms of mass litigation.

First, the Missouri jury trial involved just one plaintiff, but there are thousands of other lawsuits pending. One set of those lawsuits is currently in a rush to settle, specifically before a deadline of June 4, which is prior to when the Supreme Court decision is expected. The plaintiffs considering that settlement now have to decide whether to agree to a $7.25 billion deal without knowing whether the court will uphold the Missouri verdict. The deal has some potential weaknesses, but if the court rules for the company, the plaintiffs’ bargaining power could drop dramatically. And any settlement in the state court will have ripple effects in the parallel federal lawsuits happening across the country.

Like many complicated mass cases involving health harms, the Roundup cases have been filed in both state and federal courts, through different aggregating procedures. The federal action is proceeding as a “multi-district litigation.” MDLs have emerged over the past decade as a key class-action substitute: mass harms are often not strong candidates for federal class actions under recent Supreme Court jurisprudence, because the court demands a high level of commonality among claims that can be very difficult to satisfy when individual illnesses are an issue. As a substitute, MDLs are formed when many similar individual cases are filed in federal courts across the country; those cases are then consolidated and transferred for pretrial management to a single-federal judge – this time, Judge Vince Chhabria in the Northern District of California. Once centralized in this way, most MDLs face enormous pressure to craft a centralized settlement, and the vast majority (more than 97%) do settle – even though the governing statute contemplates that individuals will ultimately return to their original courts for their own trials.

The other mass case here is the parallel case filed in state court in Missouri. That case was filed about two months ago, as a “settlement class action,” on behalf of some 40,000 plaintiffs. A settlement class action is a special animal: It’s a case that is filed with the purposes of settling immediately and taking advantage of class action’s efficiencies to do so. That is why cases filed as settlement class actions almost immediately produce resolution rather than proceeding through pretrial work.

This particular settlement class action has stirred controversy. Commentators and objectors have complained that the settlement gives too much money to the lawyers and too little to the harmed individuals. They also have complained that the settlement inappropriately incentivizes the lawyers to push clients to accept the deal: Any lawyer with more than 25 clients who do not accept must forfeit their own legal fees under the terms of the settlement. That, some argue, creates unseemly pressure on lawyers to push clients to accept the offer. Finally, the settlement’s deadline to join – June 4, even though the Supreme Court is likely to rule after that in Durnell – has sparked criticism for forcing the parties to make their decisions in a vacuum before knowing how Monsanto’s preemption claim turns out. Of course, that’s probably the point – accepting the settlement is like taking a bet.

Looking through a wider lens, the settlement also has highlighted some interesting questions about judicial power over mass harms litigation in general. First, there is a question of jurisdiction – does the Missouri court really have power to bind all of these litigants, from across the country, including those who have not yet even filed claims? 

Modern American class action jurisprudence relies on the twin ideas of representation and consent to justify these far-flung actions: the named plaintiffs and their lawyers ensure that everyone involved, even those far away, are properly represented in the litigation and plaintiffs’ ability to opt out of the class means those who remain have effectively consented to their claims being decided in a state different from their own. In recent years, however, some scholars, including myself and Elizabeth Burch, have started to ask questions about whether these traditional guardrails are really enough. Should there be more due process protections for plaintiffs for these kinds of cases? In this particular case, the parties are currently engaged in a heated dispute over whether it’s easy enough for plaintiffs to opt out, whether the terms of the settlement are fair, and whether the lawyers and representative plaintiffs are really doing an adequate job representing everyone.

Another big-picture question involves the relationship between state and federal courts in these kinds of complex cases. Massive federal MDLs tend to exert great leverage over national litigations over public harms – to the surprise of many, they even exert leverage over cases not actually in the MDL. In the nationwide opioid litigation, for example, it has been widely reported that litigators in state courts, including state attorneys general, were brought to the bargaining table in the federal MDL to work out a global settlement – that is, a settlement that would cover everyone, including those in state-court cases. Sometimes this leverage leads to questionable practices. One such practice that has raised eyebrows is when MDL judges require attorneys in parallel state cases to pay into the MDL’s common benefit fund to cover some of attorneys’ fees for the lead MDL lawyers, on the theory that everyone benefits from a global settlement. Another practice that some have criticized is MDL judges’ tendency to view anything less than global settlement as a kind of failure. Burch and I have argued that, instead, more remands of MDL cases to their original courts would allow for better state law development and give more individual plaintiffs a sense of agency over their own cases.

The Roundup litigation offers an interesting twist on this kind of state-federal dance. First, this time, it is the state-court-based settlement, not the federal MDL, that is exerting the pressure with its aggressive timeline. The state settlement also sweeps in all cases that are not in the MDL – and lawyers leading the state cases have argued that includes cases that were originally part of the MDL but have since been remanded back to their original jurisdictions for just the kind of individual trials that some of us have advocated. Some plaintiffs have responded that those MDL remand cases do not belong in the state settlement at all, on the ground they should still be considered creatures of the federal MDL – in other words, just because those cases were sent back to their original courts after pretrial work in the MDL does not mean they should now be swept up in a new state-court class action (at least not without clear notice and an easy opt out). This is a novel, and admittedly wonky, but important question about the status of cases that are originally part of an MDL and then are sent home after the MDL works through the pretrial stage. But this is exactly what the MDL statute initially contemplated even if, in practice, global settlement has been much more frequent than remands.

This story is made all the more interesting by the fact that the MDL judge here, Chhabria, has been one of the most vocal advocates of MDLs relinquishing some of their centralizing power and effectuating more remands. (He also refused to make state counsel pay into the federal MDLs common benefit fund in this case.) And in fact, there is a motion pending before him asking the federal court to intervene in aspects of the state settlement. At a hearing on Thursday, Chhabria raised questions about the Missouri state court’s jurisdiction and the fairness of the settlement, calling the whole situation “mind boggling” – but still expressed concern about the idea of federal court interference. Here, Chhabria’s efforts to practice what he preaches may thus lead some of his remanded MDL cases to be swept into the state class action and otherwise limit his influence over the state proceeding.

Finally, let’s return to administrative deference and the Loper Bright issue that popped up at oral argument in Durnell. This relates to the question of the state/federal relationship, but in a different way. At oral argument, Justice Samuel Alito asked whether Loper Bright Enterprises v. Raimondo – the 2024 case that overruled the 40-year-old regime of deference to administrative agency statutory interpretations set forth in Chevron v. Natural Resource Defense Council – also applies to agency decisions about whether their authorities displace state law, a question known as “ administrative preemption. “

For those who followed Chevron’s demise over the past decade, the question came as a surprise. Prior to Loper Bright, the court had considered administrative preemption several times. Most recently, in the 2013 case of City of Arlington v. FCC , Chief Justice John Roberts in dissent expressed concern that an agency could have so much authority as to receive deference about the limits of its own powers versus the states. To that, Justice Antonin Scalia replied, in essence, either you’re okay with Chevron or you’re not – Chevron gave agencies discretion to interpret their governing statutes, which in turn meant that they indeed were being deferred to about decisions about the boundaries of their own authority in virtually every case, including those involving the states. Loper Bright undid the Chevron regime, and one would have thought settled the question in Arlington in the chief’s favor. Yet Alito left the question open, stating that, while the court may ultimately decide as much, “it's not there now.” Ironically, the idea that deference remains for an agency’s interpretation of its authority to preempt state law would mean that one of the most controversial applications of Chevron is also one of the few to survive the case’s demise.

As for the ongoing Roundup litigation, it’s always possible that the settlement winds will shift in the wake of the argument. But either way, the case raises bigger picture questions about the future of aggregate public harms litigation and federalism that we will surely see again.

Although Sotomayor did not identify the colleague by name, anyone paying attention knew to whom she was referring: Justice Brett Kavanaugh. Specifically, at an April 7 appearance at the University of Kansas Law School, Sotomayor criticized Kavanaugh for his solo concurrence in Noem v. Perdomo, a case involving immigration stops. In that opinion, Kavanaugh explained why he thought the stay preventing some of the government’s such practices was warranted. Even if U.S. citizens or individuals in the country lawfully were stopped by immigration officers, he wrote, the stops are “typically brief, and those individuals may promptly go free” after proving they are “legally in the United States.” Without naming him, Sotomayor suggested that Kavanaugh had come from privilege, as “a man whose parents were professionals” and who “probably doesn’t really know any person who works by the hour.” As Amy noted, remarks like Sotomayor’s were extremely unusual, and the formal apology that followed only underscored how far outside the ordinary they fell.

But that was not the only intra-court criticism this spring. In a Yale Law School lecture on April 13, Justice Ketanji Brown Jackson delivered a sustained critique of her conservative colleagues’ emergency orders in favor of the Trump administration, calling them “scratch-paper musings” that can “seem oblivious and thus ring hollow.” In that regard, Jackson described roughly two dozen orders from last year allowing controversial Trump administration policies on immigration and federal funding to take effect after lower courts found them (likely) unlawful.

And Justice Clarence Thomas, speaking on the same day that Sotomayor’s apology was issued, lamented that he had “joined the court that dealt with differences as friends,” strongly implying that was no longer the case. Thomas also criticized those who “recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences and their country.” (The Wall Street Journal quoted a political scientist who said, “It certainly sounds like [Thomas is] talking about John Roberts.”)

All of which raises a natural question: are moments like these truly rare in the court’s history? The short answer is yes – but they are not entirely without precedent.

The first feud(?)

Perhaps the earliest known feud took place between John Jay, the nation’s first chief justice, and John Rutledge, an associate justice – although not when they were on the court together.

Their dispute began when Jay negotiated the controversial “Jay Treaty” with Great Britain in 1794, which aimed to maintain peace between the two countries. (Among other things, it settled claims for American citizens who had their property damaged by the British during the Revolutionary War.) But Jay was seen by many as too sympathetic to the British, and the congressional fight over the treaty’s passage is even said to have led to the creation of national political parties. When Jay resigned to become governor of New York in 1795, President George Washington tapped Rutledge – who had served briefly as an associate justice before resigning in 1791 – to replace him as a recess appointee.

Following his appointment, Rutledge gave a fiery speech in Charleston, South Carolina, denouncing the very treaty his predecessor had negotiated, allegedly declaring that he “had rather the President should die than sign that puerile instrument.” The Federalist-leaning press, which supported the treaty, pilloried Rutledge and circulated rumors of his mental instability. The Senate subsequently rejected Rutledge’s formal nomination as chief justice that December by a vote of 14 to 10 – the first time the Senate had ever voted down a Supreme Court nominee. A distraught Rutledge, to date the chief justice with the shortest tenure in history, then attempted to drown himself but was saved by two enslaved men who witnessed the incident.

Marshall and his first dissenter

In assuming the role of chief in 1801, John Marshall encouraged his colleagues to adopt unanimous decisions delivered by a single voice (that is, without any public disagreements or separate opinions by each justice). This held for several years.

That is, until President Thomas Jefferson (Marshall’s “long-time foe”) appointed William Johnson from South Carolina as a counterweight to Marshall, believing the young justice’s non-Federalist views would break the chief justice’s grip on the court. Johnson’s colleagues, however, found him disrespectful, with Johnson being a great deal younger than the rest of the bench but lording over it, and at times writing separately in direct opposition to Marshall – which likely undermined his ability to build coalitions against the chief justice in the first place. Nevertheless, Johnson persisted, writing roughly half of all dissents under the Marshall court and fervently rejecting the “practice of silent opposition that had been adhered to by the other Justices.” Indeed, after issuing his first concurrence, Johnson reported to Jefferson that he “heard nothing [from his brethren] but Lectures on the Indecency of Judges cutting at each other.”

Taney and Curtis

The mid-19th century produced a new, and arguably higher stakes, intra-court dispute. In 1857, Chief Justice Roger Taney delivered the majority opinion in Dred Scott v. Sandford – widely considered the worst decision in the court’s history – holding that Black Americans could not be citizens of the United States under the Constitution. Justice Benjamin Curtis responded with a dissent that prompted Taney to delay issuing the majority opinion by several weeks while he added (what Curtis estimated to be) “upwards of eighteen pages” of rebuttal. “No one can read [the opinion] without perceiving that they are in reply to my opinion,” Curtis said.

During this time, Taney withheld the full text of the majority opinion from Curtis – and when Curtis asked Taney for an explanation (suggesting it was a violation of the court’s rules to withhold the opinion for so long), Taney wrote: “It would seem from your letter to me … that you suppose you are entitled to demand it as a right, being one of the members of the tribunal. This would undoubtedly be the case if you wished it to aid you in the discharge of your official duties. But I understand you as not desiring or intending it for that purpose.”

The conflict then spilled beyond the courtroom. Taney accused Curtis of leaking his dissent to the press for political purposes; the public could read Curtis’ dissent in full, but only a summary of the majority opinion was available (Taney did not release the full opinion immediately, which he continued to revise) – giving “Republicans a definite advantage in the war of words” that Taney found embarrassing. Taney wrote that he “observed that the opinion of the Court ha[d] been greatly misunderstood and grossly misrepresented in publications in the newspapers.”

Curtis denied the accusation, but the acrimony had become irreparable. He resigned from the bench that September. In letters to friends, Curtis cited his inadequate salary, but some have noted that the internal discord following Dred Scott, and his rancorous relationship with Taney, were also key factors in his departure from the court.

McReynolds

The early 20th century brought another ugly dispute. When President Woodrow Wilson appointed Louis Brandeis as the first Jewish justice in 1916, this antagonized at least one sitting colleague: James McReynolds, whom Wilson had appointed two years earlier.

A militant antisemite, McReynolds refused to speak to Brandeis for the first three years of Brandeis’ tenure. He would rise and leave the room whenever Brandeis spoke during the justices’ private conference, while also refusing to sign any opinions written by him. When Benjamin Cardozo, who was also Jewish, was being considered for the court in 1932, McReynolds joined his two colleagues, Justices Pierce Butler and Willis Van Devanter, in urging the White House not to “afflict the Court with another Jew.” President Herbert Hoover did not listen. During Cardozo’s swearing-in ceremony, McReynolds pointedly read a newspaper (muttering the words “another one”), and he did not sign the farewell letter when Brandeis retired in 1939. (Indeed, there is no official photo of the 1924 court because McReynolds would not sit next to Brandeis.) Later on, McReynolds refused to attend Felix Frankfurter’s investiture, decrying “another Jew on the Court!”

Repulsed by McReynolds’ actions, Chief Justice William Howard Taft once described him as “selfish to the last degree” and “fuller of prejudice than any man I have ever known.”

The Black-Jackson feud

Perhaps the best-known example of justices attacking one another in public was the 1946 feud between Justice Hugo Black and Justice Robert Jackson – which legal scholar Steve Vladeck has described as involving “one of the more impertinent public statements ever made by a sitting Justice.”

By way of summary: Jackson was the fourth in a quartet of Roosevelt appointees, joining the court in 1941 that included Black, Justice William O. Douglas, and Frankfurter. Jackson and Black had little in common in terms of their backgrounds beyond their historical support for the New Deal: Black came from the deep South and Jackson from New York, and while Black had been a former senator, Jackson had very little practical political experience.

The two feuded over process and jurisdictional questions almost from the start, with Jackson scolding Black for making everything personal. As Jackson once said of his fellow justice, “[y]ou just can’t disagree with him. You must go to war with him if you disagree.” He also remarked that “[w]ith few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties.”

Black did not retaliate publicly, although he was not entirely passive; rumors soon circulated in Washington that Black and Douglas had leaked to reporters that they would resign if Jackson were appointed as chief justice.

Things came to a head following the death of Chief Justice Harlan Fiske Stone in the spring of 1946. Jackson, then in Nuremberg serving as the chief U.S. prosecutor at the war crimes tribunal, became convinced that Black had lobbied President Harry Truman against appointing him to the court’s center seat — although Jackson had understood FDR to have promised him this. When Truman instead nominated his Treasury Secretary, Fred Vinson, Jackson sent a public cable to both congressional judiciary committees, making public what had previously been an intra-court dispute. In particular, he drew on an internal fight over whether Black should have participated in an earlier labor case, Jewell Ridge Coal Corp. v. Local 6167, given that Black’s former law partner had argued for the prevailing side. During the case, Jackson and Frankfurter had wanted to write a statement questioning Black’s participation, but Black had fought back, and a bitter argument ensued at the justices’ conference. As Jackson’s telegram put it, if “war is declared on me, I propose to wage it with the weapons of the open warrior, not those of the stealthy assassin.”

According to Vladeck, who cited Professor Dennis Hutchinson, this cable is the only time in the court’s history that a justice “publicly accused another of unethical behavior and of manipulating the decision-making process for personal ends.” Black responded with “dignified silence,” “ever concerned about public actions that might tarnish the public’s image of the Supreme Court,” and “even when publicly pummeled by one or more of his brethren … insisted on remaining silent in public.”

Both men resumed a working relationship after Jackson returned from Nuremberg that fall. But Jackson wrote in a private memo that their disagreements were “intellectual matters, fundamental to their respective characters. They are not likely ever to be reconciled to each other’s viewpoint, however much each respects the other’s ability.”

The (other) Black feud

The other major feud of the mid-20th century on the court also involved Black, as well as Douglas — in a decades-long clash with Frankfurter. The latter two had begun as close friends and New Deal allies. In fact, when Roosevelt named Douglas to the court, Frankfurter had been enthusiastic, saying that Douglas was “badly” needed on the bench: “We shall have a man who is historic-minded about the law, but also knows that history is not a tale of dead things but part of a dynamic process.”

Upon arriving on the court in 1939, Frankfurter had expected to help lead it, having studied the institution for 25 years as one of the country’s most respected law professors, watching it, as he once said, “as closely as a mother would a sick child.” Frankfurter took that metaphor a little too seriously, however, often treating his colleagues as children in need of correcting rather than his brethren.

From the start, Frankfurter and Black clashed over court doctrine and the role of the judiciary, with Douglas siding with Black. While Frankfurter believed courts should emphasize process and defer to legislatures whenever possible, Black and Douglas saw a more powerful judiciary as vital to a healthy society.

This intellectual dispute quickly became personal. Frankfurter “took the refusal of the brethren to follow his lead as a personal affront, and unfortunately allowed full play to his considerable talent for invective.” At the justices’ private conference, he would speak for exactly 50 minutes — the length of a Harvard lecture, as Justice Potter Stewart recalled — and Douglas could be “absolutely devastating” in his attacks on Frankfurter – both personally and professionally – afterward. On one occasion, Douglas told his colleagues: “When I came into this conference, I agreed in the conclusion that Felix [Frankfurter] has just announced. But he’s talked me out of it.” And when bored during Frankfurter’s talks, Douglas would simply leave the table and go to a sofa, where he would lie down until his colleague was finished speaking.

In his private writings, Frankfurter referred to Black, Douglas, and their allies as “the Axis” (among the worst insults possible during World War II) and described Douglas, in diaries and letters, as one of “the two completely evil men I have ever met,” “malignant,” and “the most cynical, shamelessly amoral character I’ve ever known” (along with a Yiddish epithet for bastard). Douglas returned the treatment, referring to Frankfurter in private as “Der Fuehrer,” “a little bastard,” “Machiavellian,” “divisive,” and a “prevaricator.”

The conflict arguably had institutional costs. By the 1943-44 term, 58% of court’s decisions came down with divided opinions – the most in the court’s history. Frankfurter himself complained near the end of the next term about “an increasing tendency on the part of members of the Court to behave like little schoolboys and throw spitballs at one another” — apparently without recognizing his own role in the problem.

The conflict survived even the court’s private attempts at resolution. In November 1960, Douglas drafted a memo, which he ultimately did not send after Chief Justice Earl Warren persuaded him otherwise, threatening to withdraw from the justices’ conferences entirely while Frankfurter remained on the bench. “The continuous violent outbursts against me in Conference by my Brother Frankfurter give me great concern,” he wrote. “But he’s an ill man; and these violent outbursts create a fear in my heart that one of them may be his end. I do not consciously do anything to annoy him. But twenty-odd years have shown that I am a disturbing symbol in his life.” The conflict persisted until Frankfurter’s retirement in August 1962, forced by a stroke. Douglas did not attend Frankfurter’s funeral three years later.

The modern court

The recent past offers one instructive – and ultimately more hopeful – relationship. In his 2015 Obergefell v. Hodges dissent from the court’s ruling on same-sex marriage, Justice Antonin Scalia insulted his colleague Justice Anthony Kennedy’s majority opinion in unusually acerbic terms (even for Scalia). He called the opinion “couched in a style that is as pretentious as its content is egotistic,” “profoundly incoherent,” and “lacking even a thin veneer of law.” Scalia took things even further in a remarkable footnote, stating that he would “rather hide [his] head in a bag” than sign it, and that “[t]he Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” And, commenting on the court’s lack of geographic diversity (and how that reflected on its jurisprudence), Scalia stated that Kennedy was not a “genuine Westerner” because “California does not count.”

According to Kennedy’s memoir, Life, Law & Liberty, the episode damaged their relationship for months: Scalia stopped coming to group lunches and no longer stopped by to chat. Kennedy’s children were, he writes, “devastated” by the dissent’s tone. By Kennedy’s account, however, in February 2016, Scalia walked down the corridor to Kennedy’s chambers and apologized for having been so intemperate. The two men hugged. But it was the last conversation they ever had; Scalia died in Texas about a week later.

Why now?

What distinguishes the current moment from past episodes of intra-court tension is not any single incident but the concentration of them — and, more importantly, their apparent cause. Some observers point to the interim docket as the primary engine of the current friction.

In her September dissent from the court’s unsigned order in Trump v. Slaughter (in which the court agreed to hear the case of FTC Commissioner Rebecca Slaughter and paused the district court’s order preventing Slaughter’s firing without citing cause for doing so) Justice Elena Kagan wrote that this docket “should never be used, as it has been this year, to permit what our own precedent bars.” Kagan was referring to the court’s 1935 ruling in Humphrey’s Executor v. United States, which held that when Congress creates independent, multi-member regulatory agencies, the commissioners can only be removed “for cause.” Still more, she added, it should not be used to transfer “government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.” Sotomayor has likewise condemned what she called “grave misuse[s] of our emergency docket.” (Recall, too, that it was an interim docket order that triggered Sotomayor’s now-retracted remarks at the University of Kansas School of Law.) As CNN summarized in April, the interim docket has been “at the center of several recent instances of tension between the justices spilling out into public view.”

The structural differences of the interim docket – not just its substance – may also contribute to this. Merits cases generally arrive with full briefing, oral argument, and time for the justices to work through their disagreements before any opinion is circulated, much less published. Interim docket decisions frequently offer no reasoning at all, so for justices who disagree with those orders, the only recourse – in some ways – is through a public dissent, because there is no reasoning to which to respond in the opinion. This means that what might otherwise be an internal disagreement becomes, by necessity, a public one.

Whether the current tensions will harden into the kind of lasting personal enmity that defined the Black-Jackson or Frankfurter-Douglas era remains to be seen. But the historical record at least offers grounds for some cautious optimism. The court has survived feuds far more personal and sustained than anything on display this spring – and has emerged, if not unscathed, at least intact. The McReynolds-Brandeis antipathy endured for more than two decades. The Frankfurter-Douglas war outlasted one justice’s career. Even Jackson’s public telegram, which seemed to many observers to threaten the court’s legitimacy, eventually faded. The institution survived. It should here, too.

Week in Review

The court heard five arguments this week, during the second half of the April sitting. Here are the links to SCOTUSblog’s coverage.

• Chatrie v. United States: Case Preview and Argument Analysis
• Monsanto v. Durnell: Case Preview and Argument Analysis
• Cisco Systems, Inc. v. Doe I: Case Preview and Argument Analysis
• Mullin v. Doe: Case Preview and Argument Analysis
• Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc.: Case Preview and Argument Analysis

And on Wednesday, the court released its opinions in two cases: Louisiana v. Callais and First Choice Women’s Resource Centers v. Davenport.

• In Callais, a 6-3 court held that Louisiana’s map creating a second majority-black district was “an unconstitutional racial gerrymander.”
• In First Choice, a unanimous court held that a religious nonprofit organization could challenge a subpoena demanding the identities of its financial supporters in federal court.

At the Court

Today, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from that conference are expected on Monday at 9:30 a.m. EDT.

On Thursday, the court denied requests for a stay of execution from James Hitchcock, who was sentenced to death in Florida for the murder of his step-niece, Cynthia Driggers, and James Broadnax, who was sentenced to death in Texas for the murders of Stephen Swan and Matthew Butler. Both men were executed last night.

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

Morning Reads

Louisiana congressional primaries are suspended as a result of the Supreme Court’s ruling

Sara Cline, Jack Brook, and David A. Lieb, Associated Press

On Thursday, Louisiana Gov. Jeff Landry “issued an executive order postponing the U.S. House primary” in his state in response to the court’s ruling in Louisiana v. Callais, according to the Associated Press. “Allowing elections to proceed under an unconstitutional map would undermine the integrity of our system and violate the rights of our voters,” Landry said. “This executive order ensures we uphold the rule of law while giving the Legislature the time it needs to pass a fair and lawful congressional map.” Without the executive order, early voting in the House primary would have begun in Louisiana on Saturday. Early voting will still begin then for “[a]ll other races on the ballot,” and the secretary of state’s office “said it would post notices at early voting sites alerting the public about the suspended congressional primary.”

Trump says Tennessee plans to redistrict, Gov. Lee noncommittal

Stuart Dyos, Vivian Jones, and Rachel Wegner, Nashville Tennessean (paywalled)

On Thursday, President Donald Trump said in a social media post that Tennessee will also pursue redistricting after Wednesday’s ruling in Louisiana v. Callais. “I had a very good conversation with Governor Bill Lee, of Tennessee, this morning wherein he stated that he would work hard to correct the unconstitutional flaw in the Congressional Maps of the Great State of Tennessee,” the president wrote, according to The Tennessean, which noted that “[r]edrawing Tennessee’s districts in time for the 2026 elections would require an expedited timeline and heightened logistical challenges. ... Early voting for the August primaries is scheduled to begin July 17.”

First Trump tariff refunds expected about May 11

Zach Schonfeld, The Hill

U.S. Court of International Trade Judge Richard Eaton revealed on Wednesday that the “federal government is expecting to issue the first refunds of President Trump’s invalidated tariffs on or about May 11,” according to The Hill. U.S. Customs and Border Protection’s refund request system “went live last week. Importers have already successfully uploaded 21 percent of the affected entries into the system, according to Eaton’s new order.” However, Eaton noted that some issues, “including long wait times and problems with resetting usernames and passwords,” persist, and that he spoke with the government about addressing them. CBP will “submit a new update” about the refund process “to the court by May 12.”

The Comey indictment could be upended by this 2015 Supreme Court precedent

Perry Stein, The Washington Post (paywalled)

On Tuesday, former FBI director James B. Comey was indicted “for allegedly threatening President Donald Trump” by posting a photo last year “showing seashells on a beach arranged to spell out ’86 47.’” However, the criminal indictment “appears to fall short of a standard articulated by Chief Justice John G. Roberts Jr. in a 2015 opinion, when the Supreme Court pointedly distinguished a genuine threat from mere speech,” legal analysts told The Washington Post. “Roberts, along with a majority of the court, ruled in the 2015 case Elonis v. United States that prosecutors seeking to convict someone of sending a dangerous message must prove the person intended to make a violent threat – or at least knew there was a substantial chance it would be viewed as threatening.” “At a news conference announcing Comey’s indictment Tuesday, acting attorney general Todd Blanche said he understood that prosecutors need to prove intent, and he said they would do so at trial.”

Breyer makes case for civic education

Liz Mineo, The Harvard Gazette

During a recent event at Harvard University, retired “Justice Stephen Breyer argued that civic education could help reduce polarization and strengthen citizenship,” according to The Harvard Gazette. He recalled visiting the California Legislature as a child and how it “helped spark his interest in public service.” “When asked about the role of the Supreme Court in civic education, Breyer said that justices should write in a clear way to ensure that citizens understand both the complexities and the practical impact of a ruling.” He noted that he said as much to the Dalai Lama, when, during a visit to the Supreme Court, the spiritual leader asked how the court approaches writing a difficult decision.

On Site

From the SCOTUSblog Team

After major voting rights ruling, parties dispute whether the Supreme Court should finalize decision immediately to allow changes to Louisiana’s congressional map

On Wednesday evening, the group of “non-African American” voters who prevailed earlier in the day in their challenge to Louisiana’s congressional map asked the Supreme Court to bypass its normal 32-day waiting period and send a copy of its opinion and order to the lower court immediately, making the decision final. On Thursday, the Black voters who defended the map urged the court to turn down the request.

Opinion Analysis

Court unanimously sides with faith-based pregnancy centers in litigation dispute with New Jersey

The Supreme Court on Wednesday ruled that a group of faith-based pregnancy centers can litigate their challenge to New Jersey’s demands for information about the group’s fundraising practices in federal court. In a unanimous decision by Justice Neil Gorsuch, the justices rejected the lower courts’ conclusion that the group, First Choice Women’s Resource Centers, had not shown it had suffered the kind of injury from the subpoena that would give it a legal right to sue, known as standing.

Argument Analysis

Justices poised to protect generics manufacturers from liability for decisions of pharmacists about prescribing their products

Wednesday’s argument in Hikma Pharmaceuticals USA v. Amarin Pharma showed a bench once again dubious about litigation trying to hold a large company responsible for the actions of others that it does not control.

Contributor Corner

Supreme court orders

In his Nuts and Bolts column, Stephen Wermiel explained the significance of a Supreme Court order list, which he said “operates much like a traffic report, sorting cases into those that will be argued and those on which review is denied, and cleaning up numerous other details of the work of the justices.”

Contributor Corner

Church autonomy returns to SCOTUS

In her Ratio Decidendi column, Stephanie Barclay explored U.S. Conference of Catholic Bishops v. O’Connell, “a case asking how broadly the First Amendment’s church autonomy doctrine – which prevents courts from delving into internal church affairs – reaches.” She joined one of 15 amicus, or “friend of the court,” briefs urging the court to take up the case.

Podcasts

Advisory Opinions

Gutting the Voting Rights Act | Interview: Judge Roy K. Altman

Sarah Isgur and David French discuss the Louisiana v. Callais decision, weird indictments, and whether Israel is guilty of genocide.

A Closer Look

Chief Justice William Rehnquist

It’s hard to believe, but we have reached William Rehnquist in our series on chief justices of the Supreme Court, John Roberts’ immediate predecessor. To give a glimpse of the man: When Rehnquist's elementary school teacher asked him what he wanted to do when he was older, the future chief justice supposedly replied: “I'm going to change the government.” And although it took a few decades, there is little doubt that he accomplished his childhood goal.

Born in 1924, Rehnquist, the son of a paper salesman and a mother who was a professional translator, grew up in a Milwaukee suburb during the Great Depression. His household was staunchly conservative, with Republican figures like Herbert Hoover among the family’s political heroes. After high school, Rehnquist served as a weather observer in North Africa during World War II and then attended Stanford under the GI Bill, where he graduated in 1948 with bachelor's and master's degrees in political science. Rehnquist then received a master's degree in government from Harvard in 1950, after which he returned to Stanford and graduated first in his law school class in 1952 – just two places ahead of his classmate Sandra Day O’Connor, who would later join him on the court (and who Rehnquist had once dated and proposed to, although this wouldn’t become public until 2018).

Rehnquist then clerked for Justice Robert Jackson (although, after his interview, Rehnquist thought Jackson had “written [him] off as a total loss”). Following this, Rehnquist moved to Phoenix (a city he reportedly chose for its “meteorological and political” climate) and spent 16 years in private practice while becoming involved in Republican politics, including speechwriting for Barry Goldwater's 1964 presidential campaign. That eventually brought him to the Nixon administration’s Justice Department in 1969 as assistant attorney general. Nixon, who called him “Renchberg” in the Watergate tapes, nominated him to the court as an associate justice in 1971, and the Senate confirmed him 68–26. Rehnquist was sworn in on Jan. 7, 1972.

On the court, Rehnquist relied on three “related constitutional ideas”: “strict construction” of the Constitution’s text, judicial deference to Congress on questions of policy (meaning judges should not invalidate laws simply because they seemed unwise), and a robust defense of states’ rights against what he saw as an excessive accumulation of federal power since the New Deal. Those convictions put him at great odds with most of his colleagues – in his first five terms he wrote 24 lone dissents (among 72 total), which earned him the nickname “the Lone Ranger.” (Rehnquist’s clerks would later present him with a Lone Ranger doll that remained on his office mantel for years.) By 1975, however, a more conservative court allowed him to write an increasing number of majority opinions, such as National League of Cities v. Usery, which invalidated a federal statute regulating the wages and hours of state government workers under the 10th Amendment.

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

Responsible for the famous “hogs on ice” quotation (he said that the chief presides over eight “associates … as independent as hogs on ice. He may at most persuade or cajole them”), Rehnquist nevertheless continued the trend of an increasing rate of unanimous cases on a steadily more conservative court. Roberts, who clerked for Rehnquist in the 1980 term, said in his own confirmation hearings that in any given year’s biggest cases, the opinion assignments were “distributed very evenly among the nine justices … because the Chief made a priority of being fair.” To date, Rehnquist holds the highest authorship rate in “one-vote margin cases” – suggesting he was the chief justice “most able to command 5-4 majorities [and] author opinions while holding together coalitions in often the most consequential and coveted authorship decisions.”

In terms of the cases themselves, Rehnquist is perhaps most remembered for his efforts to limit Congress’ power. In 1995’s United States v. Lopez, the chief justice wrote the majority opinion striking down the Gun-Free School Zones Act and applied the same logic five years later in United States v. Morrison to invalidate a provision of the Violence Against Women Act. Rehnquist also presided over President Bill Clinton's 1999 Senate impeachment trial (at the time, one of only two chief justices in history to perform that duty, the other being Salmon P. Chase). And a year later, Rehnquist joined the court’s per curiam decision in Bush v. Gore, stopping Florida’s recount in a 5-4 decision that effectively allowed the election to be certified for George W. Bush. (Rehnquist also authored a concurring opinion arguing that Florida’s highest court had violated Article II: “[T]here are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them.”)

The 16th chief justice was diagnosed with thyroid cancer in October 2004, and continued to work until his death in 2005, just shy of his 81st birthday. According to his colleagues (who proved significantly more complimentary toward him than toward Burger), he “steered the Court along a path of responsibility and careful analysis throughout his 19 years as Chief Justice … and he was able to secure the cooperation and admiration of all of the Justices for the years in which he served” (Sandra Day O’Connor), “was a good man who epitomized fairness, dignity, and strength of character” (Clarence Thomas), and “was the fairest, most efficient boss I have ever had.” (Ruth Bader Ginsburg). Thirteen years later, Justice Brett Kavanaugh lauded Rehnquist as his “first judicial hero” who “brought about a massive change in constitutional law and how we think about the Constitution.”

SCOTUS Quote

CHIEF JUSTICE ROBERTS: “More generally, is there anything that your friend said that you disagree with?”

MR. PIPOLY: “No, Justice – Chief Justice – Mr. Chief Justice. My apologies.”

CHIEF JUSTICE ROBERTS: “Whatever.”

— Mullin v. Doe (2026)

Louisiana on Thursday afternoon confirmed that it would indeed postpone the state’s primary elections for Congress, which had been scheduled for May 16. In a letter to Scott Harris, the Supreme Court’s clerk, Louisiana Solicitor General Benjamin Aguiñaga attached an executive order signed on Thursday by the state’s governor, Jeff Landry, that “encouraged” the Louisiana Legislature to adopt a new congressional map in the wake of Louisiana v. Callais and schedule primary elections “as soon as practical … in order to conduct the November 3, 2026 election.” Landry asserted that he had the power to do so when the Louisiana secretary of state certifies that there is an emergency. Here, he said, he agreed that there is an emergency, “as electing members to Congress under an unconstitutional map flies in the face of the United States Constitution and subjects Louisiana voters to representatives that are impermissibly elected as determined by the United States Supreme Court, in a 6-3 decision.”

Louisiana did not, however, specifically endorse the request to fast-track the process of finalizing the Supreme Court’s decision. Instead, it noted that Landry and Louisiana Attorney General Liz Murrill are “working with the Legislature—which is in session until June 1—to immediately produce a constitutional map and electoral process for Louisiana. They do not view their ability to do so,” the state wrote, “as contingent upon when this Court transmits its opinion and judgment.”

If the Legislature does draw a new map, it is expected to favor Republicans, who currently hold four of the state’s six seats in the U.S. House of Representatives but could pick up one or even two more under a revised map.

The Black voters who defended the map urged the court to turn down the request to skip the 32-day waiting period. They told the justices that the Supreme Court should give them the chance “to seek[] rehearing in the ordinary course” – which would mean filing a petition for rehearing within 25 days of the court’s decision.

The Black voters also contended that the court should not only deny the “non-African American” voters’ request, but it should in fact put the issuance of its judgment on hold “until after the 2026 election.” They argued that it is too close to the election to reinstate the three-judge district court’s order finding that the 2024 map violated the Constitution and barring the state from using that map in the 2026 elections. Indeed, they noted, mail-in ballots have already gone out to overseas voters and some others in the state – some of whom have apparently already returned those ballots.

After Louisiana and the Black voters filed their responses, the federal district court in Louisiana indicated that, in the wake of the Supreme Court’s decision on Wednesday, the order prohibiting the state from using the 2024 map now “remains in effect.” Louisiana, the district court wrote, “will be afforded the opportunity to enact a Constitutionally compliant map” consistent with the decision in Callais. The district court instructed the state to submit a brief “outlining how the State intends to comply” with the Callais ruling and the lower court’s order barring the use of the 2024 map “within three (3) days” after the district court receives a copy of the decision and judgment from the Supreme Court.

Yesterday’s argument in Hikma Pharmaceuticals USA v Amarin Pharma showed a bench once again dubious about litigation trying to hold a large company responsible for the actions of others that it does not control.

The specific dispute here involves a generic pharmaceutical manufacturer, Hikma, whose product can be dispensed for uses that both do and do not infringe on patents. The suit is brought by Amarin, which holds patents on uses of the branded pharmaceutical Vascepa, a medication to reduce heart disease for which Hikma’s product is a substitute. Specifically, Amarin seeks to hold Hikma responsible when pharmacists dispense Hikma’s generic product for uses that infringe on its patents. As in the Cox Communications case decided a few weeks ago, the justices seemed to doubt the propriety of imposing liability for the conduct of other parties.

The basic situation here is that the lower court (the U.S. Court of Appeals for the Federal Circuit, which is a specialized court that hears patent cases) upheld the validity of a complaint against Hikma that rests on three statements by it: the label on the product, press releases to potential investors, and statements on its web site. According to Amarin, these statements have actively encouraged its use for patented purposes.

The problem the manufacturer faced in defending the judgment before the court is that the relevant statute, the Patent Act, requires “active[] induce[ment]” of infringement and none of those three pieces of evidence had much persuasive force with the justices.

As for the label, because the text on the label is almost entirely compelled by the FDA, the justices found it difficult to blame the generics manufacturer for that; Justices Ketanji Brown Jackson and Elena Kagan seemed particularly dubious about that as a relevant piece of evidence. As for the press releases, they were directed to investors rather than doctors, which made some of the justices skeptical that they show anything about active intent to induce infringement by pharmacists (Jackson seemed the most outspoken here). As for the web site, the justices pointed out that it seemed to do little more than mention the drug as a generic for Vascepa and, in any event, had a disclaimer that at least some of the justices (Justice Neil Gorsuch taking the lead on this topic) seemed to find important.

The most interesting facet of the argument to me was that the justices seemed much less interested in sorting out how they would rule – which seemed to be a foregone conclusion – and much more interested in continuing a debate about why they agreed to hear the case in the first place. Early in the argument, for example, Justice Sonia Sotomayor suggested that the justices “say we’re not going to take [cases just for] error correction,” implying that the case was so fact-specific that there was no other reason to hear it. In the same vein, Justice Amy Coney Barrett commented that because the “key question” in the case “is a fact question, … I’m not sure why this is here except four of my colleagues wanted it to be.” Conversely, Justice Brett Kavanaugh – apparently one of those four – explained that as “to why this case is here, … I’m glad it’s here.” He then went on at some length to discuss filings that had persuaded him that the decision below would “have some serious implications market-wide.”

I would predict a succinct and prompt unanimous opinion saying as little as necessary about patent law and simply stating that none of the evidence is sufficiently probative of “active” inducement of infringement, as opposed to passive tolerance of it.

Although New Jersey says that it is investigating whether First Choice may have misled women about whether it provides certain reproductive-health services, such as abortions, the court’s ruling focused instead on the more technical – but not insignificant – question of when organizations and advocacy groups can bring lawsuits in federal court.

First Choice describes itself as a “faith-based nonprofit” that provides “material support and medical services like ultrasounds and pregnancy tests under the direction of a licensed medical director.” In 2023, Matthew Platkin – who was then New Jersey’s attorney general – issued subpoenas to the group, seeking, among other things, information about its donors.

First Choice challenged the subpoena in federal court in New Jersey. The group contended that the subpoena would discourage both its own speech, because it prompted the group to remove videos that identified its staff from its YouTube channel, and that of its donors, who would be less likely to make contributions out of concern that their identities would be revealed.

A federal judge in Trenton, New Jersey, twice refused to block the subpoena. U.S. District Judge Michael Shipp initially ruled that he could not yet decide on the dispute because only a state court has the power to enforce or block a subpoena, and it had not yet done so. After a state court later instructed First Choice to “respond fully” to New Jersey’s demands for information, First Choice returned to the district court, where Shipp once again concluded that he lacked the power to rule on the dispute at that time. Although the state court had granted Platkin’s request to enforce the subpoena, Shipp wrote, it had not yet determined whether First Choice would face sanctions if it did not comply – that is, First Choice had not shown that it had actually been injured by the subpoena.

A federal appeals court agreed. It emphasized that First Choice could continue to argue in state court that the subpoena’s demands violated the First Amendment. Moreover, it added, the scope of the donor information that the attorney general was seeking was relatively narrow, and First Choice had not yet demonstrated that it was seriously injured by the state’s requests.

In a unanimous 22-page opinion on Wednesday, the Supreme Court reversed the lower court’s decision, clearing the way for First Choice’s lawsuit to move forward in federal court. Gorsuch focused on whether First Choice had a legal right to sue, and in particular whether the group could meet the requirement that it have suffered an “actual or imminent” injury as a result of the subpoena.

First Choice, Gorsuch noted, argues that the state’s demand for information about its donors constitutes an “actual or imminent” injury because it deters donors from associating with the group. Gorsuch agreed. The subpoena, he wrote, cautions that a failure to provide the information that it seeks “may render you liable for contempt of Court and such other penalties as are provided by law.” First Choice also submitted two declarations to the lower court: one in which “several donors represented that ‘[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed’”; and another in which the group’s “executive director similarly represented that the Attorney General’s request threatened to ‘weaken [the group’s] ability to recruit new donors.’”

“All this,” Gorsuch concluded, “is more than enough to establish injury in fact under our precedents. An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff’s constitutional rights. And our cases have long recognized that demands for a charity’s private member or donor information have just that effect.”

As further evidence of the “commonsense” nature of the court’s holding, Gorsuch pointed to the array of “friend of the court” briefs supporting First Choice in this case. “Groups ranging from the American Civil Liberties Union to the National Taxpayers Union Foundation to the Church of Jesus Christ of Latter-day Saints have filed briefs in this case explaining that, ‘[e]ven if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up [and] give the target organization’s members and supporters a very good reason to abandon the cause.’”

Gorsuch considered, but rejected, the three contentions at the core of the state’s argument. It does not matter, Gorsuch said, whether the subpoenas are “non-self-executing” – that is, that they are not legally binding until the state goes to court and obtains an order directing First Choice to comply with them. “[T]he value of a sword of Damocles” – the ancient parable about a king’s courtier who is forced to sit through a meal on the king’s throne with a sword hanging over his head, suspended by a single strand of horsehair – “is that it hangs—not that it drops,” Gorsuch emphasized. Even if the subpoena could not be enforced immediately, Gorsuch wrote, “[a]n objectively reasonable recipient of a demand like that would be induced … to trim its protected advocacy knowing it now stands in the government’s crosshairs.”

Gorsuch also dismissed the state’s suggestion that the subpoena to First Choice could not have deterred donors because they still had the option to donate to the group through one website that, in the state attorney general’s view, “could not mislead a potential donor into thinking that First Choice provides or refers for abortions.” But the question before the court, Gorsuch maintained, “isn’t how badly the Attorney General has burdened First Choice’s associational rights; the question is whether he has burdened those rights at all. And by effectively restricting how First Choice may interact privately with its donors, the subpoena did just that.”

Finally, Gorsuch was equally unpersuaded by the state’s contention that First Choice was not injured by the subpoena because a state court will issue a protective order that requires any donor information provided pursuant to the subpoena to be kept private. Gorsuch noted that “no such protective order presently exists” and that even ostensibly private data could be leaked to the public. But in any event, he concluded, “[a]n official demand for private donor information is enough to discourage reasonable individuals from associating with a group. It is enough to discourage groups from expressing dissident views.”

Referring back to the Supreme Court’s 1958 decision in NAACP v. Alabama, in which the Supreme Court reversed a ruling by the Alabama state courts that fined the NAACP $100,000 for refusing to disclose its membership rolls in response to a request from that state’s attorney general, Gorsuch queried, “would it have been an answer in NAACP v. Alabama if the State’s Attorney General promised to keep the NAACP’s membership rolls to himself?”

The Supreme Court will soon consider whether to grant cert in U.S. Conference of Catholic Bishops v. O’Connell, a case asking how broadly the First Amendment’s church autonomy doctrine – which prevents courts from delving into internal church affairs – reaches. The Supreme Court recently reiterated that the doctrine protects the “independence of religious institutions in matters of faith and doctrine” and “matters of church government.” This case concerns how much independence the doctrine actually guarantees.

The U.S. Court of Appeals for the D.C. Circuit held below that it provides very little. The lower court treated the doctrine as only a defense to liability instead of an immunity against intrusive merits proceedings; in other words, civil courts may not force churches to pay damages for a religious dispute, but they can require churches to spend their time and tithes litigating such disputes. Most other courts to consider the question disagree, as do 11 dissenting judges from the minority of circuits that have held otherwise, including Judges Neomi Rao and Justin Walker of the D.C. Circuit. 

Based on its liability-only holding, the D.C. Circuit also denied immediate appeal of a church autonomy defense. That holding joins four other courts and deepens a split with six disagreeing courts, including the U.S. Court of Appeals for the 5th Circuit, which recently explained in an opinion by Judge Andrew Oldham that church autonomy can receive interlocutory (that is, immediate) review to prevent irreparable First Amendment harm. Again, 11 dissenting judges have agreed with the 5th Circuit.

Finally, the D.C. Circuit adopted a rule that allows courts to avoid the church autonomy doctrine entirely if a plaintiff plausibly alleges that the claims arise under “neutral principles of law,” a position that four courts accept, five other courts have rejected, and 16 dissenting or concurring judges have warned will render the doctrine a dead letter.

Each of those three issues – whether church autonomy provides a form of immunity from suit, whether it can receive interlocutory review, and whether it can be circumvented by the so-called “neutral principles” approach – is now before the Supreme Court.

And the underlying context here is striking. The questions presented arise from a putative class action that a Catholic parishioner filed against the United States Conference of Catholic Bishops. The parishioner donated to Peter’s Pence, an annual religious offering that Catholics around the world have given to for over 1,000 years to support the ministry of the pope. O’Connell claims a description he heard from the pulpit at Mass about the offering’s religious uses misled him into thinking it would be immediately and exclusively used for certain religious purposes and not invested or used for others. When he learned he was mistaken, O’Connell sued and requested that USCCB return both his offering and the offerings of millions of other Catholics nationwide. He also sought an injunction dictating how the Catholic Church describes and uses Peter’s Pence.

Given the apparent intrusiveness of such claims, the importance of the questions presented, and the sharp division among the lower courts, 15 amicus briefs – one of which I joined – urged the court to take the case.

Church autonomy as an immunity from suit

Reading the briefing, the parties seem to agree that the threshold issue in this case is whether church autonomy operates as an immunity from suit. An immunity means a constitutional, statutory, or common law protection that, when applicable, protects parties not only from being found liable in a lawsuit, but also from the burdens of litigating the case.

Supreme Court precedent indicates church autonomy provides immunity protections. In early church autonomy decisions like the 1872 case of Watson v. Jones and 1952’s Kedroff v. Saint Nicholas Cathedral, the Supreme Court held that religious organizations’ freedom from secular control necessarily includes freedom even from civil courts’ review of protected ecclesiastical decisions. And in the 1979 case of NLRB v. Catholic Bishop, the court explained that the “very process of inquiry,” not just “final decisions,” can violate the religion clauses by prying into such religious matters. These principles were reiterated in the Supreme Court’s more recent precedent, 2012’s Hosanna-Tabor v. EEOC and 2020’s Our Lady of Guadalupe v. Morrissey-Berru. There, the court reiterated that courts are bound to “stay out” of matters that fall within the First Amendment’s church autonomy doctrine.

The D.C. Circuit’s decision deepens a sharp existing split on this point. Judge Oldham recently authored a 5th Circuit opinion in McRaney v. NAMB concluding that church autonomy “is a constitutional immunity from suit” that protects from “all judicial intrusion.” Echoing the Supreme Court’s warning against the “very process of inquiry” of using judicial power as leverage in religious disputes, the 5th Circuit explained that churches cannot be “made whole by a take-nothing judgment months or years” after the state has already intruded into the church. That holding is consistent with the recent U.S. Circuit Court of Appeals for the 9th Circuit Court’s opinion in Markel v. Union of Orthodox Jewish Congregations, which described church autonomy’s scope as “prohibit[ing] merits discovery and trial.” The U.S. Court of Appeals for the 3rd, 4th, and 6th Circuits have similar case law recognizing church autonomy as a structural limit on the power of judges to interfere in religious matters. And several state high courts have repeatedly interpreted the federal constitution as providing an immunity from suit.

At a practical level, it seems those dissenters were prescient. One amicus brief here chronicled the results of cases that had denied threshold First Amendment review in the 2nd and 10th Circuits, showing how those cases resulted in extensive and unconstitutional church-state entanglement – including a district court’s successful pressure to settle to avoid the “very expensive” “discovery process, preparation for trial, [and] lengthy trial,” and a plaintiff’s religiously intrusive depositions of church senior hierarchs over matters concerning the election of a bishop. Even the 5th Circuit’s decision in McRaney expressed regret at an earlier decision in the case that let it proceed as far as it had, which resulted in irreparable harm to First Amendment rights via intrusive discovery into religious matters that should have been barred at the threshold by the church autonomy doctrine.

Wrongful denials of church autonomy and collateral appeals

If this “immunity from suit” language sounds familiar, it’s because the court recently addressed the interaction between collateral-order appeals and immunities. In GEO Group v. Menocal, the court stated that a party’s entitlement, if any, to a collateral-order appeal normally “turn[s] on whether the defendant has asserted a defense to liability or instead an immunity from suit.”

That makes sense. A collateral-order appeal is an immediate appeal from a lower-court order that does not finally resolve the full case, but does resolve a sufficiently important matter that, absent prompt review, could be irreparably harmed. The three-part test for collateral-order appeals asks whether the challenged order conclusively determines the disputed question, resolves an important issue completely separate from the merits, and would be effectively unreviewable on appeal from a final judgment. Where a defense operates as an immunity from suit, all three boxes are checked: the protection would be entirely lost if the party raises the immunity early in the case, the court wrongfully denies it, and the party has to go through the very suit the immunity exists to prevent before it can have the wrongful denial reviewed.

Because courts have split on the question of whether church autonomy operates as an immunity from suit, they have also split on whether wrongful denials of church autonomy defenses are entitled to collateral-order appeal. For instance, in an opinion written by Judge Edith Jones, the 5th Circuit reviewed an interlocutory order wrongfully denying a motion to quash a subpoena seeking the Catholic Church’s internal communications. By contrast, the same courts that have concluded that church autonomy is only a defense to liability have also concluded that the denial of a church autonomy defense isn’t entitled to an interlocutory appeal.

These latter courts have been less solicitous of First Amendment rights than they are of the comparatively “humdrum” orders they regularly accept for immediate appeal. The D.C. Circuit, for instance, recently recognized that an order allowing the disclosure of a single person’s private medical information was immediately appealable because of the privacy interests at stake. Yet, reasoning that church autonomy provided no similar protection for internal church governance interests, the D.C. Circuit had no similar concerns here over the words spoken at Mass about an ancient religious offering spanning a millennium.

The “neutral principles” approach and church autonomy

Finally, the D.C. Circuit avoided the Supreme Court’s church autonomy precedent in part by relying on the so-called “neutral principles” approach. That approach was developed in the church property context, where two schismatic factions argue that they are the one “true” church entitled to ownership of the house of worship. As a possible method to resolve such disputes, where it is impossible to identify which church is the “true” one without taking ecclesiastical sides, the Supreme Court’s 1979 decision in Jones v. Wolf allowed courts to instead consider “neutral” principles of property and trust law to determine which faction owned the property. But the court cautioned that the approach was narrow, and it has never applied it outside the unique church-property context. Yet the D.C. Circuit extended this approach to cover all church autonomy defenses, holding that focusing on “neutral” laws allows courts to avoid “doctrinal disputes” and thus “steer[] clear of any violations of the church autonomy doctrine.”

That was surprising. Not only has the Supreme Court never extended Wolf outside the property context, it rejected arguments that it should be extended in the 1976 case of Serbian Eastern Orthodox Diocese v. Milivojevich and 2012’s Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In Hosanna-Tabor, the arguments were pressed not only by the solicitor general on behalf of the EEOC but also by the plaintiff-respondent’s counsel, Sri Srinivasan (now chief judge of the D.C. Circuit, and a member of the O’Connell panel below), who quoted Wolf as plaintiff-respondent does here to argue that imposing “neutral” requirements on matters of internal church governance was entirely unobjectionable. Hosanna-Tabor did not take up this invitation.

The U.S Courts of Appeals for the 5th, 6th, and 11th Circuits, along with two state high courts, have done the same. And where courts have begun accepting it more recently, such as in this case and in the 2nd Circuit’s Belya v. Kapral decision, 16 federal appellate judges have registered their strong disagreement, warning that adopting the Wolf rule will “eviscerate” church autonomy and render it “a dead letter.” These judges note that nearly every plaintiff relies on facially “neutral” legal principles in crafting a complaint, meaning adoption of the neutral principles approach ultimately swallows the constitutional rule.

Conclusion

Whatever else church autonomy means, it has to mean something before a liability determination. Consider what already happened in the lower court here. O’Connell’s counsel served discovery requests demanding USCCB turn over its private correspondence with the Holy See about Peter’s Pence, account for how the pope has used Peter’s Pence to lead the Catholic Church, and divulge the identities of each of the millions of Catholics that have donated to Peter’s Pence in the United States.

That is not idle litigation pressure. As O’Connell’s trial counsel noted at oral argument in the trial court below, he recently settled another class-action fraud case over religious offerings, Murphy v. Gospel for Asia. That settlement came after the district court allowed him to enforce over 1,000 requests for admission and related discovery demands over the religious defendant’s objection that the discovery burden alone would be crippling. Religious defendants facing comparable pressures routinely settle rather than open their internal deliberations to civil discovery – even when they have winning defenses on the merits. A doctrine that protects only against ultimate liability, and not against the suit itself, seems to protect the church from very little of what church autonomy was designed to prevent.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh recently underscored the point in their Cunningham v. Cornell University concurrence: the motion to dismiss is "the whole ball game" in cases like these, because once meritless claims survive that stage, the intrusion and burden of discovery does the plaintiff's work for him. Church autonomy without a meaningful immunity from suit collapses into an after-the-fact damages defense – somewhat useful to the institution that survives the litigation, entirely useless to the institution that settles to escape it.

Those are the practical stakes. The doctrinal stakes run deeper. Each of the three questions in O'Connell – whether church autonomy is an immunity from suit, whether its wrongful denial supports interlocutory review, and whether plaintiffs can route around it by pleading "neutral principles" – turns on the same structural question: how the First Amendment allocates authority between civil courts and religious institutions over the internal life of the church. The D.C. Circuit and several other courts have given one answer to that question. Eleven dissenting judges, five other circuits, and the Supreme Court's church autonomy decisions have given a better one.

One of the most critical aspects of Supreme Court procedures is the orders list.

It operates much like a traffic report, sorting cases into those that will be argued and those on which review is denied, and cleaning up numerous other details of the work of the justices.

Yet although it is a document publicly available on the Supreme Court’s website, it is little seen and even less understood by anyone other than avid followers of the court.

The orders list is the culmination of the regular flow of petitions by parties who lost in a lower court and are asking the Supreme Court to review and overturn the prior judgment. As SCOTUSblog readers are likely aware, these are called petitions for certiorari, a term derived from Latin meaning to be fully informed or to be certain.

During each term of the court, running from early October to the end of June or early July, the justices receive and act on about 4,000 such petitions (though this number may vary). The justices consider what action to take on the petitions at private conferences where only the nine of them are present. The conferences are held on Friday for much of the term and then on Thursdays once the court has completed oral arguments in the spring. If at least four justices vote to hear a petition, then the case will be scheduled for full briefing, oral argument, and eventual decision.

For each conference, there is a list of available cases to be considered, called the “conference list.” From the conference list, the justices narrow the pool down to a “discuss list,” meaning cases that will actively be considered at the conference. Petitions that no justice wanted to discuss are automatically denied.

To understand the orders list, it is helpful to review a recent example. The list typically has several different sections.

First is a list of summary dispositions. These involve petitions which the justices are able to resolve without receiving additional briefs or hearing oral argument. Often, the justices choose to vacate the lower court ruling that was the focal point of the petition and to send the case back to that lower court to apply a new Supreme Court precedent decided in another case.

On the orders list for April 20, 2026, for example, the justices vacated a decision in which the U.S. Court of Appeals for the 9th Circuit denied qualified immunity to two police officers and the Las Vegas Police Department. In Smith v. Scott the justices said the appeals court should decide the case over based on a different qualified immunity ruling issued by the Supreme Court a month earlier in the case of Zorn v. Linton.

The next section of the orders list is “orders in pending cases.” This heading may encompass a wide variety of orders. It includes requests by those filing petitions to keep portions of the court record sealed from public view. It includes the court’s denial of requests to file in “pauper” status by those who cannot afford to pay the $300 filing fee or the cost to print 40 copies of their petition (for the justices, their clerks, and court staff). The section may also include applications for a stay of a lower court order. And there are requests to file petitions after the deadline has expired; these are denied nearly 100% of the time.

This category also includes frequent requests by the federal government’s lawyer in the Supreme Court, the Office of the Solicitor General, to participate in oral arguments in which the federal government is not a party. In some instances, the court issues orders in this section dividing up oral argument time among those involved in a case.

Another important feature in “pending cases” is when the court asks the solicitor general’s views on whether the justices should hear a case with implications for federal law although the federal government may not be directly involved. This process even has its own name and acronym: call for the views of the solicitor general, or CVSG.

In many orders lists, the next section is “certiorari granted.” This is a list of cases that the court is setting for full briefing and oral argument. Often in the fall, the announcement of newly granted cases is released separately on Friday afternoon. This may give the lawyers in the case some extra time to get started on the deadlines for filing briefs. In the spring, the granted cases are part of the regular orders list; this is because the cases will not be argued until the next term, so the deadlines are not as pressing.

Granting certiorari usually involves a simple one-line order. But the court may also decide to limit the questions it plans to answer in a case, or it may decide to pose new questions crafted by the justices in addition to or in lieu of the questions presented by the parties.

The denial of petitions for certiorari is the next section. This is often the longest section because the vast majority of petitions are denied by the court. When the court declines to hear a case, the effect is to leave in place the prior ruling of the lower court. The justices have long explained that a denial of certiorari does not mean they agree with the lower court ruling; it simply indicates that there were not four justices who wanted to hear the case.

Justices may dissent from the denial of petitions and explain their disagreement in written opinions. In the current court, Justice Sonia Sotomayor is the most frequent practitioner of dissents from denial of certiorari. Sometimes the writing of a dissent may prompt other justices to write in support of the denial of certiorari. When these separate writings occur, they are usually appended to the very end of the orders list.

In what may seem a confusing practice, the court will deny a petition after noting that it has accepted a friend-of-the-court (amicus curiae) brief or that it has approved filing in pauper status. This oddity is because the justices still go through the rules for accepting additional briefs or granting pauper status even when they are going to turn down a petition.

At the end of the list of denials are orders with additional wrinkles – for instance, the petition is denied but one or more justices did not participate in the case. The justices do not give reasons for these recusals.

Toward the bottom there are also sections handling requests for special court orders. Typically the court denies requests for habeas corpus, mandamus, and any other unusual orders. The court also almost never grants petitions for rehearing and lists those denials without explanation.

The final item regularly on the orders list is “attorney discipline.” When a lawyer who is a member of the Supreme Court Bar has been suspended from practicing law by state bar officials, it is customary for the Supreme Court to prohibit that person from being able to practice in the high court.

Orders are an integral part of the court’s work. But they have not always been as important as they are today. Prior to 1925, the court had very little discretion over its docket and had to decide most of the cases that were presented. In the Judiciary Act of 1925, Congress gave the court most of the broad discretion it now has to turn away petitions without giving any kind of ruling on the issues. Once the court could turn away cases, then public notice of which cases the court would decide and which it would simply turn down became a critical step in its operating procedures.

Note: After we sent yesterday’s newsletter, the Supreme Court moved U.S. Conference of Catholic Bishops v. O’Connell off the conference list for May 1. It will be considered by the justices on a later date.

At the Court

On Wednesday, the court released its opinions in Louisiana v. Callais and First Choice Women’s Resource Centers v. Davenport. In Callais, a 6-3 court held that Louisiana’s map creating a second majority-black district was “an unconstitutional racial gerrymander.” In First Choice, a unanimous court held that a religious nonprofit organization could challenge a subpoena demanding the identities of its financial supporters in federal court.

Later on Wednesday, the “non-African American” voters who challenged Louisiana’s map asked the court on its interim docket to send the Callais decision to the lower court immediately, rather than waiting 32 days, as is typical. By sending it right away, the decision would become final sooner and leave open the possibility that Louisiana could adopt a new map before the 2026 elections. The responses to the voters’ request are due today by 4 p.m. EDT, suggesting that the court could act quickly.

Also on Wednesday, the justices heard argument in Mullin v. Doe, on the Trump administration’s effort to end Syrian and Haitian nationals’ participation in the Temporary Protected Status program, and Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a dispute between a manufacturer of medication and its generic substitute.

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

Morning Reads

How the Supreme Court’s Voting Rights Ruling Could Affect the Midterms and Beyond

Nick Corasaniti, Emily Cochrane, and Tim Balk, The New York Times (paywalled)

The Supreme Court’s Wednesday ruling on the Voting Rights Act “could create a chaotic scramble among states that are considering drawing new congressional maps ahead of November,” according to The New York Times. “The court directly struck down Louisiana’s current map, but Gov. Jeff Landry, a Republican, gave no indication of any immediate actions in a statement. With a May 16 primary looming – and early voting set to begin this weekend – drawing new congressional boundaries would require a breakneck timetable and perhaps new election dates. Republicans in several other states pointed to the court’s ruling as a justification for redrawing maps – including in Florida, where state lawmakers approved a new map Wednesday creating up to four Republican-leaning seats.” Overall, according to the Times, the ruling “is likely to modestly improve Republicans’ fortunes ahead of the midterm elections, giving them a slight edge in the redistricting wars. ... And the ruling all but guarantees that the redistricting arms race will stretch into the 2028 election.”

Louisiana governor prepares to suspend House primaries after court ruling

Dan Merica and Patrick Marley, The Washington Post (paywalled)

Citing two anonymous sources, The Washington Post reported on Wednesday night that "Louisiana Gov. Jeff Landry (R) told Republican House candidates Wednesday that he plans to suspend next month's primary elections so state lawmakers can pass a new congressional map first" in response to the Supreme Court's ruling. "Landry's announcement to suspend the May 16 primary could come as early as Friday -- one day before early voting is to begin, according to people familiar with his plans who spoke on the condition of anonymity to discuss private conversations."

As Supreme Court eyes temporary protected status, Congress pushes to extend Haiti deportation shield

Benjamin S. Weiss, Courthouse News Service

As the justices consider whether to allow the Trump administration to revoke temporary protected status from Haitian nationals, the Senate is weighing a measure that would extend the protections currently available to more than 350,000 Haitian migrants, according to Courthouse News Service. “Though the proposed TPS extension cleared the House with support from both parties, it’s unclear how the measure will fare in the Senate, where it will need 60 votes to advance.”

Six Conservative Justices Make King Charles Dinner Guest List

Seth Stern, Bloomberg Law

On Tuesday night, President Donald Trump hosted a state dinner for King Charles III, and the Supreme Court’s six Republican-appointed justices were on the guest list, along with their spouses. “None of the court’s three Democratic appointees were on the list,” according to Bloomberg Law. The article noted that the inclusion of all six of those justices was somewhat notable because “Trump has targeted some of the conservative justices in increasingly personal terms since the court struck down the bulk of his global tariffs.”

Next stop Supreme Court? Trump loses $83 million appeal in Carroll case

Aysha Bagchi, USA Today

On Wednesday, the U.S. Court of Appeals for the 2nd Circuit “refused Trump’s request to have all of its judges hear his appeal, after a panel of three of its judges heard the case and upheld the $83.3 million judgment” awarded to writer E. Jean Carroll in her defamation case against the president, according to USA Today. Carroll was also awarded $5 million in a separate case on her claim that “Trump sexually abused her in a 1990s incident in a department store,” and the Supreme Court will soon consider whether to hear argument on Trump’s appeal of that decision. The 2nd Circuit’s denial of en banc review “means Trump may now also take his appeal of the $83.3 million judgment to the Supreme Court.”

Appeals court rejects Trump’s no-bond immigration detentions, setting stage for Supreme Court review

Rebecca Boone, Associated Press

On Tuesday, a panel of the U.S. Court of Appeals for the 2nd Circuit held that “the Trump administration cannot jail immigrants without the chance to seek bond, citing ‘serious constitutional questions,’” according to the Associated Press. The decision “sets the stage for a possible U.S. Supreme Court appeal ... because panels on the 8th and 5th circuit courts have already upheld the policy put in place by President Donald Trump’s administration last July.” “Under the policy, the Department of Homeland Security has been denying bond hearings to immigrants arrested across the country, including those who have been in the U.S. for years without any criminal history. That’s a departure from the practice under previous administrations, when most noncitizens with no criminal record who were arrested away from the border were given the opportunity to request a bond hearing while their cases moved through immigration court.”

On Site

Opinion Analysis

In major Voting Rights Act case, Supreme Court strikes down redistricting map challenged as racially discriminatory

The Supreme Court on Wednesday struck down a Louisiana congressional map that a group of voters who describe themselves as “non-African American” had challenged as the product of unconstitutional racial gerrymandering. By a vote of 6-3, the justices left in place a ruling by a federal court that barred the state from using the map, which had created a second majority-Black district, in future elections.

Argument Analysis

Court considers whether Trump administration properly ended temporary protected status for Haitian and Syrian nationals

The Supreme Court on Wednesday was divided over the Trump administration’s efforts to strip citizens of Haiti and Syria of their protections under a federal program that allows foreign citizens to remain in the United States when the U.S. government believes that it is not safe for them to go home. After roughly one hour and 45 minutes of oral arguments, it was not clear whether a majority of the justices would allow the challengers’ claims to go forward, or whether the challengers would ultimately prevail if they did.

View from the Court

Racial considerations in voting rights and immigration policy on the last day of oral argument

In his View from the Court column, Mark Walsh described what it was like in the courtroom on Wednesday morning as the justices announced the highly anticipated decision in Louisiana v. Callais and then heard argument on whether the Trump administration acted properly in revoking temporary protected status for Haitian and Syrian nationals.

Relist Watch

Twinkies, tribunals, and tainted statements

In his Relist Watch column, John Elwood highlighted four newly relisted petitions for review, which address severely underfunded multiemployer pension plans, the free speech rights of immigration judges, and sequential confessions in a notorious cold case: the 1979 kidnapping and murder of 6-year-old Etan Patz.

Podcasts

Divided Argument

Even Eve-ier

Will Baude and Dan Epps dive into the latest Supreme Court news, a couple of unusual shadow docket rulings, and a cross-ideological merits decision that raises classic questions about federal power, preemption, and how much weight lower courts should give to context.

Amarica's Constitution

Remember the Alamo Heights

Akhil Amar and Andy Lipka continue to trace the historical origins of the Constitution’s approach to religion in American government and American life, tying this history lesson to the current debate over Ten Commandments posters in classrooms. They then speak with Sarah Isgur about her new book, Last Branch Standing.

A Closer Look

Gutted, Limited, or Weakened?

As noted above, the court on Wednesday issued its ruling in one of the highest profile cases of the 2025-26 term: Louisiana v. Callais, on race-based discrimination and the Voting Rights Act. Amy’s opinion analysis highlighted the tension between what Justice Samuel Alito’s majority opinion said about Section 2 of the VRA, a key provision that prohibits discrimination in voting, and how Justice Elena Kagan described Section 2’s future in her dissent, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Specifically, the majority opinion did not strike down Section 2, but Kagan wrote that it had been rendered “all but a dead letter.”

That tension was also apparent in the range of headlines used for news stories about Wednesday’s ruling. Some outlets said that Section 2 had been “weakened” or “limited,” while others said it had been “gutted.” And some outlets, including SCOTUSblog, focused on what the decision means for Louisiana’s congressional map, not for Section 2. Here’s a representative sampling of headlines.

The Washington Post: Supreme Court limits key provision of the landmark Voting Rights Act

The New York Times: Supreme Court Strikes Down Louisiana Map, Another Blow to Voting Rights Act

Associated Press: Supreme Court weakens the Voting Rights Act and aids GOP efforts to control the House

Reuters: US Supreme Court guts key provision of Voting Rights Act

NBC News: Supreme Court sharply limits use of race in redistricting in a win for Republicans

Wall Street Journal: Supreme Court Curbs Protections for Minority Voters in Election Maps

The Washington Times: Supreme Court limits racial challenges under Voting Rights Act, hands GOP states new mapmaking power

USA Today: Supreme Court sides against Black voters in blow to landmark civil rights law

The Hill: Liberal Supreme Court justices say majority has ‘completed demolition’ of Voting Rights Act

Louisiana Illuminator: Supreme Court strikes down Louisiana congressional maps in case with national implications

Vox: The Voting Rights Act is all but dead. Prepare for maximum gerrymandering

Slate: The Supreme Court’s Conservatives Just Issued the Worst Ruling in a Century

SCOTUS Quote

“[B]ecause the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8. That map is an unconstitutional gerrymander, and its use would violate the plaintiffs’ constitutional rights.”

— Justice Samuel Alito in Louisiana v. Callais  (2026)

“Only [Congress has] the right to say it is no longer needed—not the Members of this Court. I dissent, then, from this latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

— Justice Elena Kagan in Louisiana v. Callais  (2026)

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

Then-Secretary of Homeland Security Janet Napolitano designated Haiti under the TPS program in 2010, shortly after a powerful earthquake rocked the country, killing more than 300,000 people and causing extensive damage.

Two years later, Napolitano made a similar designation for Syria, citing “deteriorating conditions” in the country after a “brutal crackdown” by Syrian dictator Bashar al-Assad against anti-government dissenters. 

The initial designations of Haiti and Syria lasted for 18 months but were repeatedly extended until 2025, when Kristi Noem – then the Secretary of Homeland Security – announced that the Trump administration planned to end both designations.

Noem indicated that a new Syrian government was attempting to “move the country to a stable institutional governance,” and that she had determined that “there are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals … from returning in safety.” And in both cases, she indicated that it would be “contrary to the national interest” to allow the countries’ TPS designation to remain in place.

A group of Haitian nationals with TPS went to federal court in Washington, D.C., to challenge Noem’s efforts to end the program, while a group of Syrians with TPS did the same in New York. Federal judges in those cities blocked the Trump administration from ending the TPS program for Haiti and Syria, and two federal appeals courts declined to step in.

That prompted the Trump administration to come to the Supreme Court earlier this year, asking the justices to put the lower courts’ orders on hold and hear oral arguments in the disputes now, without waiting for the federal appeals courts to weigh in. The request came less than a year after the Supreme Court twice paused rulings by a federal district judge in San Francisco that would have temporarily blocked the Trump administration from ending a TPS designation (as well as an extension of that designation) for Venezuela.

In an order on March 16, the Supreme Court agreed to take up the Haiti and Syria disputes, but it left the lower courts’ rulings in place, so that the Trump administration could not end the TPS designations for Haitian and Syrian nationals while the case moved forward at the Supreme Court.

Representing the Trump administration, U.S. Solicitor General D. John Sauer told the justices on Wednesday that under the statute creating the TPS program, courts cannot review any determination by the DHS secretary with regard to the designation or termination of a foreign nation for protected status. “That provision means what it says,” Sauer stressed: It bars review of both the ultimate decision to terminate and each step that leads to it. Moreover, he added, the Haitian and Syrian nationals’ claims in this case challenge the kinds of foreign-policy decisions that political branches normally make.

Representing the Syrian challengers, UCLA law professor Ahilan Arulanantham countered that although the DHS secretary “can terminate TPS, … he must turn square corners, follow the rules Congress set.” Arulanantham warned the justices that the government was asking for a “blank check” that could ultimately turn into a “double-edged sword”: a future DHS secretary, he suggested, could use it to provide sweeping relief to all undocumented immigrants, but on the government’s reading, “the courts could do nothing.”

Geoffrey Pipoly represented the Haitian challengers. He told the justices that Noem’s “termination of Haiti’s TPS was different. It was not the result of the mandatory review process but was instead a preordained result driven by the President’s resolve to end TPS for Haiti, no matter what.” Indeed, Pipoly continued, the termination was the result of President Donald Trump’s “racial animus towards non-white immigrants and bare dislike of Haitians, in particular.”

The court’s three Democratic appointees were all skeptical that, as Sauer contended, Congress had barred courts from considering claims – like the challengers’ – that the DHS secretary had not followed the appropriate procedures in terminating TPS status.

Justice Ketanji Brown Jackson, for example, emphasized that, in the TPS statute, “Congress has clearly required … certain statutory steps, to include, for example, consultation.” Could courts review a claim alleging, Jackson asked Sauer, that the DHS secretary had made a determination “without following the statutory steps?”

When Sauer responded that they could not, Jackson expressed puzzlement. Why, she asked, would Congress enact this statute and require the DHS secretary to take specific steps “if there was no ability for anyone to challenge the Secretary’s compliance?”

Justice Sonia Sotomayor had a similar question, asking Sauer whether courts could review a termination of TPS announced on X, “effective tomorrow.” When Sauer again answered that they could not, Sotomayor pressed him, noting that the DHS secretary in doing so would not have complied with several of the statutory requirements, such as the mandate to publish the announcement in the Federal Register and to give TPS holders 60 days’ notice of the termination.

Sauer continued to maintain that courts could not weigh in.

Justice Elena Kagan acknowledged that courts may not be able to review the substance of the DHS secretary’s decision to designate or terminate a designation. “But that’s a different thing than to say that all the things that the statute says that the Secretary is supposed to do in order to determine” that substance “are themselves unreviewable,” she posited.

Justice Amy Coney Barrett had tough questions for both sides. On one hand, she hinted that she might agree with the Democratic appointees that at least some claims are reviewable: if they are, she asked Sauer, what standards should a court then apply to determine whether the DHS secretary had sufficiently consulted with federal agencies before designating a country or terminating a designation under TPS?

But on the other hand, Barrett asked Arulanantham whether allowing courts to review the procedural aspects of the DHS secretary’s decision but not the substance was just a “box-checking exercise” that would not ultimately help TPS holders very much. Why, she queried, “would Congress permit review of the procedural aspect when, really, what everybody cares about much more is the substance?”

Arulanantham responded that it was “because Congress and us too and the millions of people who live with TPS holders have some faith in government, and they believe that if there is consultation, the decisions will be better.”

When the debate turned to the challengers’ claims that Noem had violated the federal law governing administrative agencies when she terminated the TPS designations, much of the focus was on whether Noem had met the requirement that she consult with other agencies before terminating the TPS designations.

Sauer told the justices that the obligation to consult imposed only a minimal requirement. “If she sought input from State,” Sauer stressed, “she has consulted.” “[T]his is the sort of discretionary call that for very good reasons the statute” gives the DHS secretary the power to make.

Kagan was skeptical. “[I]f Congress says to consult about a particular subject matter,” she told Sauer, “then it seems as though what Congress said was you should ask somebody and they should give an answer.”

Justice Samuel Alito appeared unpersuaded. “[I]t’s always going to be possible to … raise objections about the adequacy … of the consultation and the words that the State Department comes back with,” he said.

But Arulanantham tried to assure the court that the challengers’ consultation claim was “extremely narrow.” “All we say is it has to be about a subject, deliberation about a subject,” he emphasized.

Chief Justice John Roberts, whose vote could prove pivotal in the case, appeared to express doubt about the government’s reliance on the court’s 2018 decision in Trump v. Hawaii, in which the justices upheld Trump’s restrictions on immigration from eight countries, several of which were predominantly Muslim, to defend against the Haitian challengers’ claim that the termination of the TPS designation for Syria also violated the Constitution’s guarantee of equal protection because it was grounded in racial animus. In Trump v. Hawaii, the government argued, the Supreme Court applied a relatively low bar, making clear that such restrictions could pass muster as long as the government’s actions “plausibly relate[] to the Government’s stated objective.” And in this case, the government argued in its brief, the termination of Haiti’s TPS designation “is plausibly related to the national-interest and foreign-policy justifications the Secretary provided.”

Roberts told Sauer that Trump v. Hawaii involved the president’s efforts to restrict who could enter the United States. “Here, we’re concerned with the Secretary and … aliens that … are already present” in the United States. “Your argument,” Roberts asked, “is a significant expansion of Trump v. Hawaii, isn’t it?”

Sotomayor pointed to derogatory remarks that Trump made about nonwhite immigrants and Haitian immigrants in particular, noting that Trump had called Haiti a “filthy, dirty, and disgusting S-hole country” and “complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark.” “I don’t see how that one statement is not a prime example of” how “a discriminatory purpose may have played a part in this decision,” she said.

Sauer characterized the statement as “unilluminating,” and suggested that, in any event, Trump’s statements were “less relevant” than Noem’s.

Alito questioned Pipoly’s contention that all of the countries whose TPS designations Noem had terminated were non-white countries, telling him that he had “a really broad definition of who’s white and who’s not white. As I said,” Alito continued, “I don’t like dividing the people of the world into these groups.”

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

On Tuesday evening, six justices and their spouses attended the White House state dinner for King Charles III and Queen Camilla. It was the six Republican-appointed justices. We don’t know for certain that the president didn’t also invite the three Democratic-appointed justices, but to paraphrase a bit used by Bill Maher on his HBO show, we just know it’s (probably) true that he didn’t.

Indeed, when Politico reported a tip that Justice Samuel Alito was spotted in a Georgetown formalwear shop, the news outlet had framed it as part of its discussion of the White House Correspondents’ Association dinner. I thought the chances of Alito attending that event were quite slim. If the tip was true, it seems more likely he was getting fitted for white tie and tails, the dress code for men at the state dinner.

And earlier on Tuesday, retired Justice Stephen Breyer attended the king’s speech to a joint session of Congress, where he was able to get Charles’ attention for a quick word as the king left the chamber. Perhaps it was to thank him for the reference to how many times the Supreme Court has mentioned the Magna Carta. (The king cited figures from the Supreme Court Historical Society, which sent out an appreciative email today.)

In the packed courtroom this morning, Jaime Santos of Goodwin Proctor’s Supreme Court and appellate practice is in the bar section near me, and we speculate about which decisions might be coming down. She predicts that Louisiana v. Callais, the major Voting Rights Act case, will be the one. I say no, not on the same day as the consolidated cases in Mullin v. Doe about whether then-Secretary of Homeland Security Kristi Noem violated federal law when she terminated temporary protected status designations for Haiti and Syria. (This will not turn out to be my day to play the lottery.)

The justices take the bench, none wearing formalwear. Chief Justice John Roberts announces that Justice Neil Gorsuch has the opinion for the court in First Choice Women’s Resource Centers v. Davenport.

Gorsuch is pretty quick with his summary of the decision that the faith-based pregnancy center has established a present injury to its First Amendment associational rights to confer standing to challenge a New Jersey subpoena demanding documents about its donors.

“Today, we unanimously reverse,” he says, revealing the vote count near the very beginning.

Next, and much to my surprise, the chief justice announces that Alito has the opinion for the court in Callais, which holds that the Voting Rights Act did not require Louisiana to create an additional majority-minority congressional district, and that no compelling interest justified the state’s use of race to create its redistricting map.

Alito cites the “complicated history” of the case, adding, “I will try not to burden you with too many details.”

But while his preference for opinion summaries is normally quick and concise, not so here. Rather, he goes on for about 12 minutes, explaining what in his view the ruling decides and does not decide.

He then spends the last few minutes responding to the dissent, an almost sure sign that an oral dissent is coming. And it does: After Alito announces the lineup, the justice on Alito’s left, Elena Kagan, begins the first oral dissent of the term.

With this decision, she says, “this court’s effort to dismantle and, indeed, destroy the Voting Rights Act is complete.” The Voting Rights Act was “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history,” she continues, quoting from Shelby County v. Holder, which dealt a prior blow to the Voting Rights Act. “It was born of the literal blood of Union soldiers and civil rights marchers.”

She goes on for 14 minutes, concluding that the majority’s gutting of Section 2 puts the achievement of African-Americans attaining public office in record numbers in great peril.

Modifying the final words of her dissent to encompass her colleagues Sonia Sotomayor and Ketanji Brown Jackson, Kagan says, “We dissent because Congress elected otherwise. We dissent because the court betrays its duty to faithfully implement the great statute Congress wrote. We dissent because the court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity.” She does not say she is dissenting “respectfully.”

When Kagan is finished she leans back, and the chief justice moves on to the admission of a few individual bar members (no groups today) before calling the TPS cases, which concern whether the Trump administration acted properly in revoking temporary protected status for Haitian and Syrian nationals.

The tension will hang in the air throughout the morning, as Solicitor General D. John Sauer seeks to defend the TPS determinations by now-former DHS secretary Noem.

Early on, Sotomayor asks a prolonged series of questions, leading the chief justice to try a tactic in what seems to be his efforts to rein her in a bit.

“Counsel, excuse me,” Roberts says, interrupting Sotomayor. “You said a moment ago that there were three points in response to my colleague's question. Could you just briefly mention those?”

But this only leads Sotomayor to sharpen up her questioning. Discussing possible motivating factors and potential discriminatory purposes, she raises past remarks by President Donald Trump, telling Sauer, “Now we have a president saying at one point that Haiti is a ‘filthy, dirty, and disgusting S-hole country.’ I’m quoting him. And where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, … [while] he declared illegal immigrants, which he associated with TPS, as poisoning the blood of America.”

Sauer does his best to try to set aside comments by Trump and Noem cited by Sotomayor or the challengers. “All the statements that they cite as to the secretary and as to the president – obviously, there’s an issue there about which one you're going to weigh more heavily – none of them, not a single one of them, mentions race or relates to race in any way,” he says.

Sauer has a momentary lapse when the chief justice thanks him at the end of his regular argument time, and he quickly sits down. But there is still the seriatim round, and several justices pass before Roberts turns to Sotomayor, who has another question.

Sauer scurries back to the lectern, saying “I’m sorry.”

The chief justice says, “Party’s over. No, you've got to stay there.”

“I’m very sorry,” Sauer says.

The debate around the president’s comments will get either more graphic or just more uncomfortable as the argument goes on. Geoffrey Pipoly, representing the Haitian TPS holders, will open his argument with an unexpurgated citation of Trump’s “s-hole” comment.

Alito, questioning the challengers’ view that all countries for which TPS designations have been canceled were predominantly non-white, tells Pipoly, “I don't like dividing up the people of the world arbitrarily into three racial groups, but you say they're all non-white. … Do you think that if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are – that all of them, are they all non-white?”

After some back and forth on that, Alito asks, “How about southern Italians?” The topic is fraught with racial, or ethnic, tension, yet Alito’s reference to his own heritage prompts some laughter in the courtroom. Even Alito is smiling as the laughter seems to release some of the tension surrounding this fraught topic. Pipoly replies, “Certainly 120 years ago when we had our last wave of European immigration, southern Italians were not considered white. So I think our concept of these things evolves over time.”

Thankfully, the argument soon veers back to more mundane topics such as the Administrative Procedure Act. The case, which started at 10:35 a.m. after the prolonged opinions of the day is submitted at 12:21 p.m. Not too long for such a big case. The second case for argument today, the patent dispute Hikma Pharmaceuticals USA Inc. v. Amarin Pharma Inc. (which I did not attend), clocks in at a tidy one hour and one minute.

From here on out, it’s just orders and decisions.

Since our last post, the Supreme Court has been showing real restraint at the relist window. Of last week’s seven new relists and 10 returning relists, the justices acted on exactly one: They granted review in one-time relist Department of Labor v. Sun Valley Orchards, LLC, the government petition asking whether Article III allows the Department of Labor to use administrative adjudication to impose civil penalties and back wages on employers accused of violating the conditions of participation in the H-2A visa program. The case revisits the constitutional limits on agency adjudication and the scope of “public rights” in the wake of SEC v. Jarkesy, which held that persons fined by the Securities and Exchange Commission were entitled to a jury trial.

But on to new business. There are 101 petitions and applications on the docket for this Friday's conference. Four are being considered for a second time.

Hostess with the mostest

No one will be surprised to learn that this week’s likeliest grant reminded me of The Week magazine’s aptly named former feature “Boring but important,” which apparently was cancelled for excessive truthfulness. There’s a reason why the Wuthering Heights posters didn’t exclaim, “Two hours you will never get back.”

To all the parents who stopped packing Twinkies in your kids’ lunches: Behold what your healthy choices have wrought. In 2021, as part of the American Rescue Plan, Congress created the Special Financial Assistance program to provide taxpayer-funded lump-sum bailouts to severely underfunded multiemployer pension plans. To be eligible, a plan must have been “in critical and declining status (within the meaning of [29 U.S.C. § 1085(b)(6)]) in any plan year beginning in 2020 through 2022.” The Bakery Drivers Local 550 pension fund – whose participants are bakery drivers who lost major contributing employer Hostess (the maker of Twinkies) to bankruptcy in 2012 – terminated the plan through a mass withdrawal from it in 2016.

Pension Benefit Guaranty Corp. v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund asks a wonderfully niche but potentially expensive question: whether a multiemployer pension plan that terminated by mass withdrawal in 2016 can still qualify for the American Rescue Plan Act’s Special Financial Assistance program under ERISA Section 1432(b)(1)(A), which covers plans “in critical and declining status” during 2020-2022. The Pension Benefit Guaranty Corp. denied the fund’s SFA application on the ground that, because the plan terminated by mass withdrawal in 2016, it could not have been “in critical and declining status” during the 2020-2022 window.

The fund arranged for a new employer to join and resume contributions in 2022, applied for SFA, and lost in the district court. But the U.S. Court of Appeals for the 2nd Circuit held that Section 1432(b)(1)(A)’s cross-reference to Section 1085(b)(6) imports only that provision’s definition of “critical and declining status” – essentially, whether the plan is projected to become insolvent within the current year or the next 14 years. The court also rejected the PBGC’s argument that because a separate provision (Section 1081(c)) provides that Section 1085 only applies to plans until their termination, the cross-reference to the definition incorporated a requirement that the fund not have been terminated.

The government now seeks review, not claiming any circuit split but saying that the PBGC disagrees and the 2nd Circuit’s holding is “as legally flawed as it is counterintuitive,” and “will likely result in the payment of hundreds of millions of dollars in taxpayer funds to terminated pension plans that Congress intentionally excluded from the SFA program.” The fund says the government’s claims are overblown and the 2nd Circuit’s decision is correct. But first, people have to read a stack of opinions and briefs every bit as engaging as a corporate tax return. My sympathies to everyone involved.

Administrative channeling dust-up

Margolin v. National Association of Immigration Judges is the sort of separation-of-powers food fight that only a true connoisseur of administrative law could love. The case began with National Association of Immigration Judges’ challenge to a policy adopted in 2022 by the Executive Office for Immigration Review, which runs the immigration courts and Board of Immigration Appeals. The policy generally treats public speech about immigration or EOIR as official-capacity speech requiring supervisory approval, effectively preventing immigration judges from speaking about those subjects in their personal capacities.

The district court held that the challenge had to be channeled through the Civil Service Reform Act’s administrative machinery. The U.S. Court of Appeals for the 4th Circuit agreed under ordinary circumstances, the CSRA would route claims like this one through the Office of Special Counsel, the Merit Systems Protection Board, and ultimately the Federal Circuit. But the panel concluded that recent events – including President Donald Trump’s removal of the special counsel and MSPB members, the resulting loss of an MSPB quorum, and the government’s position that statutory removal protections are unconstitutional – may have so undermined the system’s “functionality and independence” that the district court would on remand have to “consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls.”

The en banc court voted 9-6 to deny rehearing, with three concurring and one dissenting opinions. Judge J. Harvie Wilkinson, who voted to deny rehearing, nevertheless wrote that the panel’s opinion “plants the seeds of real mischief” and that “only the Supreme Court can bring an effective halt,” because a court should not decide whether a statute is “functioning as Congress intended.” The government sought a stay of the 4th Circuit's mandate, but the Supreme Court denied the application without prejudice, holding that the government had not established irreparable harm.

The government’s petition says that the case is “a clear candidate for summary reversal twice over.” NAIJ had conceded that ordinary CSRA preclusion was settled and argued only that its own claims fell outside the scheme, yet the 4th Circuit “sua sponte and without notice to or input from the parties then derailed the case based on post-oral argument events,” namely that the president had removed a member of the MSPB, so that body lacked a quorum on the date the opinion issued. The government thus claims that summary reversal is warranted both for departing drastically from the principle of party presentation (that courts may rely only on arguments presented to them, and which was the basis for the Supreme Court summarily reversing the 4th Circuit just five months ago), and for failing to adhere to Supreme Court precedent that is directly on point in holding that the CSRA channels federal personnel claims to the MSPB. NAIJ responds that the 4th Circuit’s remand is merely interim and that if the adjudicators Congress counted on to supply meaningful and independent review have been brought under presidential control, the premise for implied jurisdiction-stripping starts to wobble.

NAIJ filed a cross-petition in National Association of Immigration Judges v. Margolin arguing that a pre-enforcement challenge to a broad prior restraint on federal employees’ speech need not be funneled through the CSRA at all, given that the policy is not, in NAIJ’s telling, a conventional CSRA-covered personnel action; that the CSRA offers no guarantee of judicial review because the Special Counsel may simply decline to proceed; and that any eventual review would come too late to remedy the “here-and-now” First Amendment injury from a speech restriction that chills public comment before it happens. NAIJ says that the 4th Circuit’s contrary conclusion squarely conflicts with the D.C. Circuit’s decision in Weaver v. U.S. Information Agency, which held that a federal employee may bring “a simple pre-enforcement attack on a regulation restricting employee speech” in district court, so long as that challenge stands independently of any later covered sanction for noncompliance. And NAIJ argues the decision sits uneasily with other Supreme Court precedents suggesting that plaintiffs need not raise their claims administratively if there is no guarantee of judicial review at the end of the road. The government argues “that question is manifestly not certworthy,” because it involves only a splitless application of settled law. 

Sequential confessions in a notorious “cold case”

McCarthy v. Hernandez arises from one of the most infamous “cold cases” in American history – the 1979 kidnapping and murder of six-year-old Etan Patz, who vanished walking to his school bus stop in lower Manhattan. This is one of the first cases to establish the practice of putting photos of missing children on milk cartons. The case against respondent Pedro Hernandez rested entirely on his own statements (to police and others). In 2012, after Hernandez’s brother-in-law contacted police, detectives brought Hernandez to the Camden County Prosecutor's Office in New Jersey, where they questioned him for nearly seven hours in a windowless room without giving Miranda warnings or turning on the video camera concealed in the room. After Hernandez confessed, police read him his rights and then recorded a second videotaped confession. Later that same day – after a walk-through of the alleged crime scene, food, and intermittent sleep – Hernandez gave a third confession to an assistant district attorney. Hernandez had also made incriminating statements to members of a prayer group, a friend, and his ex-wife over the preceding decades.

After a five-month retrial (the first ended in a mistrial), a New York jury convicted Hernandez of felony murder and kidnapping. During deliberations, the jury sent a note asking whether, if it found the initial pre-Miranda confession involuntary, it “must disregard” the subsequent videotaped confessions to both law enforcement and civilians. The trial court answered simply “no,” essentially because applying the fruit-of-the-poisonous-tree doctrine was not the jury’s function. The Appellate Division affirmed, finding the response correct and, in the alternative, that any error was harmless given the extensive evidence of guilt.

Hernandez sought habeas corpus review, and the federal district court denied relief. The 2nd Circuit reversed, holding that the trial court’s response was contrary to Missouri v. Seibert. Under Seibert, when police deliberately question a suspect without Miranda warnings, obtain an initial confession, and only then administer warnings before eliciting the same confession again – a tactic designed to make the warnings feel like a formality the suspect has already talked past – any resulting post-warning confession must be suppressed unless curative measures are taken to ensure the suspect genuinely understood his rights. The 2nd Circuit held that the trial court’s one-word “no” in response to the jury's question about whether it should disregard the post-warning confessions if it found the initial pre-warning confession involuntary was contrary to Seibert, and that the error was not harmless because the confessions were the only evidence against Hernandez.

New York asks the Supreme Court to summarily reverse, pressing two independent grounds. First, the state courts did not violate clearly established federal law because Seibert – which addressed pretrial suppression rulings by a judge – has never been held to apply to jury deliberations at all, and the Antiterrorism and Effective Death Penalty Act permits habeas relief only when a state court contradicts or unreasonably applies precedent that is “clearly established” by the Supreme Court. Second, even assuming some error, the state courts’ harmless-error finding deserved deference under AEDPA: Hernandez’s confession to the ADA came roughly eleven hours and ninety miles removed from the initial interrogation, and was corroborated, New York argues, by details only the killer would know; and Hernandez’s multiple statements to civilians provided independent, wholly untainted evidence of guilt.

Hernandez counters that the 2nd Circuit’s decision is merely a straightforward application of Seibert. He adds that the first jury hung, the second deliberated nine days and sent three notes about the confessions and taint from the initial interrogation, and the pre-Miranda interrogation bore all the hallmarks of the “deliberate two-step strategy” Seibert condemned.

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

New Relists

Pension Benefit Guaranty Corporation v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund,25-701

Issue: Whether a multiemployer pension plan that terminated through mass withdrawal before the 2020 plan year is eligible for Special Financial Assistance under 29 U.S.C. 1432(b)(1)(A).

(Relisted after the Apr. 24 conference.)

McCarthy v. Hernandez, 25-748

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

(Relisted after the Apr. 24 conference.)

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

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

(Relisted after the Apr. 24 conference.)

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

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

(Relisted after the Apr. 24 conference.)

Returning Relists

Fields v. Plappert, 23-6912

Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)‘s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.

(Relisted after the Dec. 5, Dec. 12, and Jan. 9 conferences; now being held for consideration of response to Fields’ rehearing petition.)

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

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

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

Duncan v. Bonta, 25-198

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

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

Viramontes v. Cook County, 25-238

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

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

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

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

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

Grant v. Higgins, 25-566

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

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

Reinink v. Hart, 25-179

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

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

Whitton v. Dixon, 25-580

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

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

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

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

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

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

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

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

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

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

(Relisted after the Apr. 17 and Apr. 24 conferences.)

New York Football Giants v. Flores, 25-790

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

(Relisted after the Apr. 17 and Apr. 24 conferences.)

Alabama v. Sykes, 25-847

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

(Relisted after the Apr. 17 and Apr. 24 conferences.)

Alabama v. Powell, 25-848

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

(Relisted after the Apr. 17 and Apr. 24 conferences.)

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

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

(Relisted after the Apr. 17 and Apr. 24 conferences.)

Smith v. Kind, 25-943

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

(Relisted after the Apr. 17 and April 24 conferences.)

The Supreme Court on Wednesday, in the case of Louisiana v. Callais, struck down a Louisiana congressional map that a group of voters who describe themselves as “non-African American” had challenged as the product of unconstitutional racial gerrymandering. By a vote of 6-3, the justices left in place a ruling by a federal court that barred the state from using the map, which had created a second majority-Black district, in future elections. Although Wednesday’s ruling did not strike down a key provision of the federal Voting Rights Act, as Louisiana and the challengers had asked the court to do, Justice Elena Kagan suggested in her dissent (which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson) that the majority opinion by Justice Samuel Alito had rendered the provision “all but a dead letter.”

The decision was the latest, and presumably final, chapter in a long-running dispute arising from Louisiana’s efforts to adopt a new congressional map in the wake of the 2020 census. The first map that the state adopted, in 2022, had one majority-Black district out of the six allotted to the state. A group of Black voters – who comprise roughly one-third of the state’s population – went to federal court, where they alleged that the map violated Section 2 of the VRA, which prohibits discrimination in voting.

A federal judge agreed that the 2022 map likely violated Section 2, and the U.S. Court of Appeals for the 5th Circuit upheld that ruling. It instructed Louisiana to draw a new map by January 2024 or risk having the court adopt one for it.

The map that Louisiana drew in 2024 created a second majority-Black district, leading to the election in November of that year of Cleo Fields, a former member of Congress who had represented another majority-Black district during the 1990s.

The map also prompted the lawsuit leading to Wednesday’s opinion. It was filed by a group of “non-African American” voters who contended that the 2024 map violated the Constitution’s equal protection clause by sorting voters based on race. A three-judge federal district court agreed with them and barred the state from using the 2024 map in future elections, but a divided Supreme Court temporarily paused that ruling in May 2024.

The Supreme Court took up the case and heard oral arguments for the first time in March 2025. Defending the 2022 map, Louisiana contended that once the lower courts determined that the 2022 map was likely invalid and ordered it to adopt a new map with a second majority-Black district, its focus was not on race but on creating a map that would protect the state’s powerful Republican incumbents in Congress, such as Speaker of the House Mike Johnson and Rep. Julia Letlow, who sits on the House Appropriations Committee.

The “non-African American” voters challenging the 2024 map told the justices that it was “utterly implausible” that both race and politics were equally responsible for the 2024 map.

In a departure from their normal practice, the justices did not issue a decision in the case before their summer recess last year. Instead, they issued a brief order setting the case for a second argument in the fall. They later instructed the litigants to file new briefs addressing whether “the State’s intentional creation of a second majority-minority congressional district violates” either the 14th Amendment or the 15th Amendment, which bars the government from denying or restricting voting rights based on race.

By the time the justices heard the second round of oral arguments in October, the Black voters were the only litigants who continued to defend the 2024 map. Louisiana and the “non-African American” voters contended that race-based redistricting is unconstitutional, even if it is done to comply with Section 2. Although the Trump administration did not contend that the justices should strike down Section 2 altogether, it urged the justices to uphold the three-judge district court’s decision.

In a 36-page opinion, Alito explained that “the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race.” The question before the court, he said, is “whether compliance with the Voting Rights Act should be added to our very short list of compelling interests that can justify racial discrimination.”

As a general rule, Alito wrote, Section 2 of the VRA guarantees voters, including minority voters, an opportunity to cast a vote for their preferred candidate, but that candidate’s chances of success may be affected by the choices that the state is allowed to make when drawing a redistricting map – such as the desire to protect incumbents or increase the number of seats held by a particular political party. And under the Constitution, Alito continued, a violation of Section 2 only occurs when “the circumstances give rise to a strong inference that intentional discrimination occurred” – for example, when there are several possible maps that contain majority-minority districts, but the state “cannot provide a legitimate reason for rejecting all those maps.”

Alito next turned to the legal standard, known as the Gingles test, based on the 1986 case of Thornburg v. Gingles, that courts use to determine whether a map violates Section 2 by diluting minority voting power. The majority’s interpretation of Section 2, Alito said, “does not require abandonment” of that test. Instead, he stressed, the court only needed to “update the framework so it aligns with the statutory text and reflects important developments since we decided Gingles 40 years ago.”

The first of three “preconditions” that courts consider under Gingles is whether there is a group of minority voters that is “sufficiently numerous and compact to constitute a majority in a reasonably configured district.” Alito pointed to the “increased use and capabilities of computers in drawing districts and creating” maps that illustrate redistricting possibilities, and he suggested that plaintiffs challenging a map should be able to provide an alternative map that both “fully achieves all the State’s legitimate goals” and creates a new majority-minority district.

Under the second and third “preconditions” under the Gingles test – whether the minority votes as a politically cohesive group and whether the majority group votes as a bloc – the challengers must “provide an analysis that controls for party affiliation. In other words,” Alito said, “they must show that voters engage in racial bloc voting that cannot be explained by partisan affiliation.” Alito cited the development of a “full-blown two-party system” in the South, as well as the court’s 2019 decision in Rucho v. Common Cause holding that federal courts cannot consider partisan gerrymandering claims: “In a State where both parties have substantial support and where race is often correlated with party preference,” Alito said, “a litigant can easily exploit §2 for partisan purposes by ‘repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim.’”

If the three preconditions are met, courts move to the final step of the Gingles analysis to consider whether, when all of the circumstances are considered, the political process is not equally open to minority voters. Alito emphasized that this inquiry should “focus on evidence that has more than a remote bearing on what the Fifteenth Amendment prohibits: present-day intentional racial discrimination regarding voting.” Quoting the Supreme Court’s 2013 opinion in Shelby County v. Holder, which struck down a provision of the Voting Rights Act used to determine which state and local governments were required to obtain approval from the Department of Justice before making changes to their voting laws and practices, Alito wrote that “‘things have changed dramatically’” in the South “in the decades since the passage of the Voting Rights Act.” When the law was enacted, he noted, “the Nation had faced nearly a century of ‘entrenched racial discrimination in voting,’” but “Black voters now participate in elections at similar rates as the rest of the electorate.”

In this case, Alito said, Louisiana’s goal in adopting the 2024 map “was racial”: the state enacted it in the wake of the lower court’s finding that the 2022 map likely violated Section 2, and sought to avoid having the court impose a different map that would have created a second majority-Black district but which would also “have imperiled one of the influential incumbents the legislature sought to protect.”

The state did not have the kind of compelling interest that would have justified considering race in drawing the 2024 map, Alito wrote, because “the State did not need to create a new majority-minority district to comply with the Act. That is because,” he explained, “at every step of the Gingles framework,” the Black voters challenging the 2022 map “failed to prove their §2 case.”

Among other things, Alito said, the Black voters “did not provide an illustrative map that” protected the state’s Republican incumbents. Alito acknowledged that the Black voters had “offered evidence that black and white voters consistently supported different candidates, but their analysis did not control for partisan preference.” “And none of the historical evidence presented by plaintiffs came close to showing an objective likelihood that the State’s challenged map was the result of intentional racial discrimination.”

“In sum,” Alito concluded, “because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8. That map is an unconstitutional gerrymander, and its use would violate the plaintiffs’ constitutional rights.”

Justice Clarence Thomas joined Alito’s opinion, but he also wrote a brief, separate concurring opinion that was joined by Justice Neil Gorsuch. Thomas suggested that the Supreme Court “should never have interpreted §2 of the Voting Rights Act of 1965 to effectively give racial groups ‘an entitlement to roughly proportional representation.’” Wednesday’s decision, Thomas wrote, “should largely put an end to this ‘disastrous misadventure’ in voting-rights jurisprudence.” Thomas would have held, he added, that Section 2 “does not regulate districting at all.”

In a somber tone, Kagan read a summary of her 48-page dissent from the bench – a signal of her strong disagreement with the majority’s ruling. “The Voting Rights Act,” she wrote “is—or, now more accurately, was—‘one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.’ It was born of the literal blood of Union soldiers and civil rights marchers. It ushered in awe-inspiring change, bringing this Nation closer to fulfilling the ideals of democracy and racial equality.” And only Congress, Kagan argued, can “say it is no longer needed—not the Members of this Court.”

But the requirements that the court imposes on Wednesday, Kagan contended, “will effectively insulate any practice, including any districting scheme, said by a State to have any race-neutral justification. That justification can sound in traditional districting criteria, or else can sound in politics and partisanship. As to the latter, the State need do nothing more than announce a partisan gerrymander,” she said. “Assuming the State has left behind no smoking-gun evidence of a race-based motive (an almost fanciful prospect), Section 2 will play no role.”

Kagan rejected Alito’s contention that the majority had merely made “updates” to the Gingles framework, arguing instead that the majority’s changes “eviscerate the law, so that it will not remedy even” classic cases of vote dilution. “Without a basis in Section 2’s text or the Constitution,” Kagan argued, “the majority formulates new proof requirements for plaintiffs alleging vote dilution.” The new requirements that the majority imposes, Kagan said, “leverage two features of modern political life: that racial identity and party preference are often linked and that politicians have free rein to adopt partisan gerrymanders.”

Kagan also emphasized that when Congress amended Section 2 of the VRA in 1982, it did so specifically to override the Supreme Court’s decision holding that Section 2 prohibited only intentional discrimination. “It made sure instead,” Kagan wrote, as this court recently explained, “that Section 2 would ‘turn[] on the presence of discriminatory effects.’” “Today’s decision,” Kagan argued, “returns Section 2 to what it was” before the 1982 amendment. “Now, as then, vote-dilution plaintiffs will have to show more than vote dilution: They will have to show, as well, race-based motive. Now, as then, that requirement will make success in their suits nearly impossible.”

In another sign of her disagreement with the majority’s decision, Kagan omitted the traditional “respectfully” from her conclusion, writing only, “I dissent.”

Under the Supreme Court's rules, the court normally sends a copy of its opinion and the judgment to the lower court – effectively making its decision final – 32 days after they are issued. But on Wednesday night, lawyers representing the "non-African American" voters asked the justices to go ahead and send the opinion immediately, to leave open the possibility that the state could still adopt a new map before the 2026 elections.

The primary in Louisiana is currently scheduled for May 16, but the voters said in their two-page filing that "the Legislature is considering pushing back these deadlines substantially to allow for the 2026 congressional elections to occur under a remedial map." Therefore, they argued, "[t]hose 32 days could matter."

The responses to the voters' request are due on Thursday, April 30, by 4 p.m. EDT, suggesting that the court could act quickly.

At the Court

On Tuesday, the justices heard argument in Cisco Systems, Inc. v. Doe I, on whether two federal laws that allow lawsuits in U.S. courts for torture and serious violations of international law permit private lawsuits for aiding and abetting such conduct.

As noted above, we will be live blogging this morning as the Supreme Court possibly announces opinions and then hears argument in Mullin v. Doe, on the Trump administration’s effort to end Syrian and Haitian nationals’ participation in the Temporary Protected Status program.

After Mullin, the justices will hear argument in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a dispute between a manufacturer of medication and its generic substitute.

Morning Reads

Trump pursues new import taxes to replace the tariffs the Supreme Court rejected

Paul Wiseman, Associated Press

After the Supreme Court struck down President Donald Trump’s signature tariffs in February, the Trump administration invoked Section 122 of the Trade Act of 1974, which “allows the president to impose global tariffs as high as 15% for up to 150 days.” “But those stopgap levies expire in less than three months,” and the administration is now “scrambling to put more durable tariffs in place,” according to the Associated Press. “Starting this week, the Office of the U.S. Trade Representative will begin hearings in two investigations that are expected to lead to a new round of U.S. tariffs.” The hearings are required “under Section 301 of the Trade Act of 1974, which authorizes tariffs and other sanctions against countries found to engage in ‘unjustifiable,’ ‘unreasonable’ or ‘discriminatory’ trade practices.” Section 301 tariffs “expire after four years but can be extended.”

A Supreme Court justice’s personal ties to Haiti highlight stakes in asylum case

Julian Mark, The Washington Post (paywalled)

Today, as noted above, the justices will consider the Trump administration’s effort to revoke temporary immigration protections from Haitian and Syrian nationals living in the U.S. One of the questions raised by the case is whether the administration has properly assessed conditions on the ground in Haiti and Syria. In one of its stories previewing the argument, The Washington Post highlighted Justice Amy Coney Barrett’s personal connection to and knowledge of Haiti: She and her husband have adopted two children from there, including a son after the “devastating 2010 earthquake” that led the U.S. government to designate Haiti under the Temporary Protected Status program. “Barrett’s adoption of children from Haiti could play into how she approaches the case, according to academics who have studied Supreme Court justice behavior.”

King Charles defends shared US-UK values in rare Congress speech: Updates

USA Today

On Tuesday, King Charles III delivered “a rare address to a joint session of Congress.” In its live blog for the speech, USA Today noted that retired Justice Stephen Breyer was in attendance. “None of the current members of the high court was there. Breyer is married to Joanna Freda Hare, a psychologist and member of the British aristocracy. [Breyer] was seated next to Gen. Dan Caine, the chairman of the Joint Chiefs of Staff.”

Ohio Supreme Court narrows parental rights in same‑sex custody case

Laura A. Bischoff, The Columbus Dispatch

On Tuesday, “[i]n a unanimous ruling, the Ohio Supreme Court said that the landmark decision that legalized same sex marriage nationwide can’t be applied retroactively in a custody fight,” according to The Columbus Dispatch. Writing for the court, “Justice Pat DeWine said whether a couple would’ve been married had same-sex marriage been legal earlier is not applicable and courts cannot rewrite state laws to apply to non-married couples.” The case centered on two Ohio women, Carmen Edmonds and Priya Shahani, who “were in a relationship from 2003 to 2015 but did not marry.” During that period, they “co-parented three children, each born by Shahani via artificial insemination.” After they broke up, Edmonds asserted that she had “parentage rights” under an Ohio law that grants such rights to “husbands who consent to their wives conceiving through artificial insemination.” The Ohio Supreme Court held that “the plain meaning” of that “law applies only to married couples” and that Edmonds cannot use the timing of the Obergefell ruling to claim its protections.

By Week’s End, Trump’s War Will Be Plainly Illegal

Erwin Chemerinsky, The New York Times (paywalled)

In a column for The New York Times, SCOTUSblog contributor Erwin Chemerinsky contended that, if the war in Iran “continues through Friday without congressional approval, it will clearly be illegal, having passed the 60-day threshold and the 48-hour notice period that the president is given, under the War Powers Resolution of 1973, to conduct this kind of military operation.” In other words, he explained, “time will be up” on the excursion, “[a]nd it is the obligation of the federal courts to say so.” Whether the courts will actually meet that obligation is a different question, according to Chemerinsky. While the Supreme Court in the past has “emphasized the importance of Congress’s involvement in any type of war,” “recent efforts to enforce the” War Powers Act “have been dismissed by [lower] courts as involving political questions that they cannot decide.”

On Site

Argument Analysis

Court seems likely to narrow ability of plaintiffs to bring claims for violations of international law

The Supreme Court on Tuesday appeared poised to further narrow the extent to which U.S. courts can be used as a forum to consider alleged violations of international law. After roughly two hours of oral argument in Cisco Systems v. Doe, a majority of the justices seemed to side with the California-based technology company, Cisco Systems, and two of its top executives, who argued that they could not be sued for their role in allegedly aiding and abetting the creation by the Chinese government and the Chinese Communist Party of a powerful surveillance system used to target, detain, and torture the plaintiffs, who are practitioners of the Falun Gong religion.

Argument Analysis

Justices debate who gets to decide that pesticide labels need a cancer warning

The Supreme Court on Monday heard oral argument in Monsanto Company v. Durnell, a case on whether a company can be held liable under state law for failing to include a cancer warning on its product labels when the Environmental Protection Agency did not require such a warning and has concluded that the products in question are not carcinogenic.

Contributor Corner

So you want to argue before the Supreme Court?

In his Empirical SCOTUS column, Adam Feldman used “data on top ranked attorneys from Chambers & Partners in its appellate practices, along with argument counts compiled from Oyez.org, ... to sketch a fairly detailed picture” of which lawyers reach the top of the Supreme Court bar and how they get there.

Podcasts

Advisory Opinions

Arguing In Front of SCOTUS | Interview: Lisa Blatt

The inimitable Lisa Blatt joins Sarah Isgur and David French to discuss two business docket cases, a message to the judges and justices who like concurrences, and advice for aspiring lawyers.

A Closer Look

U.S. Conference of Catholic Bishops v. O’Connell

At their private conference on Friday, the justices will consider an opportunity to revisit the church autonomy doctrine, a legal principle that addresses religious institutions’ First Amendment right “to conduct their internal affairs and govern themselves,” as Justice Clarence Thomas put it in a concurring opinion last term. The doctrine prevents courts from hearing certain kinds of religious disputes – specifically, those that would require courts to interfere with “matters of faith, doctrine, and internal management.”

The petition for review in front of the court this week stems from a dispute over an annual offering in the Catholic Church called the Peter’s Pence Collection, which supports the pope’s charitable works. In 2020, David O’Connell filed a class action complaint against the U.S. Conference of Catholic Bishops over this offering, “asserting claims of fraud, unjust enrichment, and breach of fiduciary duty” based on his belief that, in its promotional materials, the USCCB had misrepresented how Peter’s Pence donations would be used. The lawsuit followed a major investigation into Peter’s Pence by The Wall Street Journal, which found that “most of that collection, worth more than [$55 million] annually, goes toward plugging the hole in the Vatican’s own administrative budget, while as little as 10% is spent on charitable works.”

Before the federal district court in Washington, D.C., the USCCB moved to dismiss O’Connell’s lawsuit, contending that the court could not weigh in without violating the church autonomy doctrine. The court denied this motion, holding, as the U.S. Court of Appeals for the District of Columbia Circuit later summarized, that the battle over how the USCCB had advertised Peter’s Pence was “a purely secular dispute.” The decision cleared the way for the lawsuit to move forward, meaning the USCCB would need to begin producing the documents O’Connell requested, including “lists of donors and amounts received.”

The USCCB appealed to the D.C. Circuit, asserting that proceeding with discovery and trial would violate the church autonomy doctrine. The D.C. Circuit dismissed the appeal “for want of jurisdiction,” holding that, at this stage in the case, it cannot weigh in on whether the case is barred by that doctrine. While the church autonomy doctrine “may be raised as a defense in a civil suit,” the D.C. Circuit explained, “it does not immunize religious organizations from civil actions” and cannot serve as the basis of an appeal of a pleading-stage order from a district court.

The USCCB appealed to the Supreme Court in January, asking the justices to clarify the scope and application of the church autonomy doctrine. The petition for review highlighted disagreements between the federal courts of appeals over whether the doctrine provides immunity from suit altogether (and not just a defense); whether denials of church autonomy defenses in the early stage of a case can be reviewed by appellate courts; and whether it’s possible to adjudicate a claim like O’Connell’s without violating the doctrine. Addressing this latter issue, the USCCB contended that it clearly isn’t possible, because “O’Connell’s claims will thrust civil courts into church pulpits and pews, attempt to pit millions of parishioners against their church, and second-guess the meaning of an offering given to the head of a foreign religious sovereign for over 1,000 years.”

Initially, O’Connell waived his right to respond to the petition, but the court called for a response in February. In his brief in opposition, filed earlier this month, O’Connell urged the justices to focus on only one issue: “whether the D.C. Circuit had jurisdiction” to consider the USCCB’s immediate appeal. He asserted that it did not and that holding otherwise would multiply the work of federal courts of appeals, because “[e]ach discovery or evidentiary ruling issued over a religious-autonomy objection would be subject to automatic, non-discretionary appeal.” O’Connell added that even if the court felt that it needs to address this issue, this case would be a “poor vehicle” with which to do so, because “Justice Jackson would likely be recused given her involvement with [it] in the district court.”

U.S. Conference of Catholic Bishops v. O’Connell is scheduled to be considered by the justices for the first time at their private conference on Friday.

SCOTUS Quote

CHIEF JUSTICE ROBERTS: “I – I've been notified that there will be a fly-over of four planes at 11:22, and I just want to announce that so people aren't alarmed. We're told the noise might be – might be big. I don't know why they didn't check with me, but –”

(Laughter.)

CHIEF JUSTICE ROBERTS: “Justice Barrett?”

JUSTICE BARRETT: “Well, Mr. Gannon, I'll try to get my question out quickly before the ruckus comes.”

MR. GANNON: “More dialogue between the branches.”

— Cisco Systems v. Doe  (2026)

The Falun Gong religion began in China in the 1990s. By the time the Chinese government designated groups associated with Falun Gong as illegal in 1999, the religion had as many as 100 million practitioners in China. In an effort to find Falun Gong practitioners, the Chinese Communist Party and Chinese security officials sought to develop a massive online surveillance system, known as the “Golden Shield.”

The lawsuit before the court on Tuesday began when a group of Chinese nationals and one U.S. citizen, Charles Lee, went to federal court in California and contended that the Chinese government used the Golden Shield technology to identify them or their family members as Falun Gong practitioners, leading to their arrest and serious human rights abuses such as torture, forced labor, beatings, and forced conversions. The defendants in their lawsuit were Cisco and two of its top officials: John Chambers, the company’s CEO, and Fredy Cheung, the vice-president of Cisco’s China subsidiary. In particular, the plaintiffs said, Cisco, Chambers, and Cheung aided and abetted those abuses – specifically, they “designed, implemented and helped to maintain a surveillance and internal security network” that made it easier for Chinese officials to identify Falun Gong practitioners.

The plaintiffs relied on two federal laws: the Alien Tort Statute, a 1789 law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, and the Torture Victim Protection Act, a 1992 law that allows suits against individuals who subject others to torture while acting on behalf of a foreign government.

In 2023, the U.S. Court of Appeals for the 9th Circuit ruled that the plaintiffs’ aiding-and-abetting claims could go forward. Over a dissent by seven judges, the en banc 9th Circuit – which, because that court is so large, consists of only a subset of all of the judges on the court – declined to rehear the case. Cisco then came to the Supreme Court, which agreed in January to weigh in.

Representing Cisco and its executives, lawyer Kannon Shanmugam emphasized that Cisco “vigorously” denied the plaintiffs’ allegations. And in any event, he continued, Congress, rather than the Supreme Court, should provide for aiding-and-abetting liability. Shanmugam urged the justices to limit the ATS to the three original causes of action that the court recognized in its 2004 decision in Sosa v. Alvarez-Machain.

In Sosa, the majority held that in 1789, the ATS would have allowed lawsuits alleging a “narrow set of violations of the law of nations” – specifically, for safe-passage guarantees, violations of an ambassador’s rights, and piracy – that could have had serious effects on the United States’ relations with other countries. The court in Sosa left open the possibility that other claims brought under the ATS could go forward if they are widely accepted as a violation of international norms and can be defined as specifically as those three 18th-century wrongs. But the Supreme Court, Shanmugam suggested, should “draw a line around” the three offenses singled out in Sosa and hold that claims for aiding-and-abetting liability can never be brought under the ATS.

Justice Brett Kavanaugh appeared to agree. He wondered whether, by leaving open the possibility that the Supreme Court could recognize additional causes of action under the ATS but not actually doing so, the court had “misled Congress into thinking” it doesn’t need to act. Kavanaugh seemed to indicate that if the court closed the door to additional claims under Sosa, it might spur Congress to expand what could be brought via the ATS.

Deputy U.S. Solicitor General Curtis Gannon, who argued on behalf of the Trump administration in support of Cisco, responded (agreeing with Shanmugam) that whether additional causes of action are available under the ATS “is a legislative decision that [Congress] should make.”

Justice Neil Gorsuch expressed a similar sentiment in questioning Paul Hoffman, who argued on behalf of the plaintiffs in the case. Gorsuch described the court as having created a “mousetrap” with its treatment of ATS claims – theoretically they are available, but the plaintiffs always lose. Wouldn’t the efforts that go into the plaintiffs’ lawsuits, Gorsuch suggested, be better directed at getting relief from Congress?

Justice Elena Kagan questioned whether the court should draw a categorical line that either always barred or always permitted aiding-and-abetting claims under the ATS. For example, concerning the three core offenses identified in Sosa, she observed that there is more evidence to support the idea that, when the ATS was enacted, someone could be held liable for aiding and abetting piracy than there was for the other two offenses.

Justice Amy Coney Barrett also expressed reservations about limiting the ATS to the three offenses identified in Sosa. There has been research, she told Shanmugam, indicating that when the ATS was enacted, international law allowed claims by foreign nationals for violence committed by U.S. citizens. Could the Supreme Court hold instead, she asked Shanmugam, that the ATS is not limited to those three offenses, and leave open the possibility that aiding-and-abetting claims could be (but are not always) available, but at the same time say that such claims cannot go forward against Cisco?

Chief Justice John Roberts had similar concerns. He described a “serious conceptual challenge” created by the position adopted by Cisco and the government in this case. The court had held in Sosa, he emphasized, that “the First Congress wanted courts to” find causes of action under the ATS. If the court were to close the door on new causes of action, Roberts said, it would therefore not be “faithful to the First Congress’s intent.”

Justice Ketanji Brown Jackson approached the question from a slightly different angle. In her view, whether an aiding-and-abetting claim should be available under the ATS would hinge on whether a claim could be brought under the ATS for the underlying conduct itself.

Shanmugam emphasized that even under this approach, courts would still have to consider the foreign policy and separation-of-powers concerns that might be implicated by allowing such a claim to go forward.

Gannon echoed Shanmugam’s caution about foreign policy concerns. He told the justices that the “mine-run” of cases brought under the ATS and TVPA had been “cases like this,” which depended on “having to prove that foreign government officials engaged in serious human rights violations in their own countries.”

Perhaps to illustrate the perils of a less-than-categorical rule, Justice Samuel Alito asked Hoffman about the potential impact of a statement of interest from the federal government, in which the federal government indicated that a particular lawsuit was “not in the best interests of the United States’ foreign policy.” Should the court hearing the lawsuit then dismiss the case, Alito inquired? Hoffman acknowledged that courts should give “great weight” to such statements, but added that courts also have “discretion” in their treatment of the statements. In response, Alito asked if Hoffman was saying that a federal judge should effectively second-guess the government’s conclusions about foreign policy and whether allowing the case to go forward would be in the U.S.’s best interests.

Jackson was more sympathetic to the plaintiffs. Is it the “position” of the United States, she asked Gannon, “that this particular claim” will cause “a foreign policy problem?” Gannon stressed that the federal government had not taken a position on the case but ultimately answered, “potentially, yes.” But Jackson seemed unpersuaded. Why, she queried, should Cisco be “absolved,” and the plaintiffs in this case “not get a remedy,” based on “speculation” by the United States about possible foreign policy concerns?

Justice Sonia Sotomayor appeared to side with Jackson. She pressed Shanmugam on Cisco’s assertions that allowing the plaintiffs’ claims to go forward would lead to a flood of lawsuits and have a harmful effect on U.S. businesses. She noted that only about 300 cases had been filed under the ATS, and that the number of cases had dropped “precipitously” in the wake of the court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., holding that claims under the ATS must be based on conduct that occurs in the United States. There has been no “rush” of new cases in the courts of appeals that allow aiding-and-abetting liability claims under the ATS, Sotomayor observed. Moreover, she added, the United States is a party to the Convention Against Torture, which requires it to hold people complicit in torture responsible.

Shanmugam countered that despite the many lawsuits brought under the ATS, he was only aware of six cases in which the plaintiffs had actually “prevailed with a monetary recovery” – suggesting that such lawsuits have little utility for victims while consuming large amounts of resources.

The case should be decided by late June or early July.

The dispute centers on Monsanto’s popular line of Roundup herbicide products, whose main active ingredient is glyphosate. The Environmental Protection Agency first reviewed the safety of glyphosate-based pesticides in 1974 and has repeatedly concluded since then that glyphosate does not pose a public health risk. However, the EPA’s research has not dispelled claims that glyphosate exposure heightens cancer risk.

In 2015, a working group of the International Agency for Research on Cancer, part of the World Health Organization, broke with the EPA and top agencies in other countries by classifying glyphosate as “probably carcinogenic to humans.” Its report paved the way toward more than 100,000 lawsuits against Monsanto in the U.S. as Americans who had been diagnosed with non-Hodgkin’s lymphoma after using Roundup worked to hold the company liable for failing to warn them about the alleged cancer risk.

The case that’s now before the Supreme Court was brought by John Durnell in Missouri in 2019. Durnell contended that Monsanto was liable for damages under state law because it had not included a cancer warning on its Roundup product labels. Monsanto asserted, as it had in other cases across the country, that the Federal Insecticide, Fungicide, and Rodenticide Act, a federal law that regulates the use, sale, and labeling of pesticides, preempted Durnell’s lawsuit, both because FIFRA explicitly bars states from imposing additional or different labeling requirements on top of what’s required by federal law and because Monsanto could not have added a cancer warning without the EPA’s approval – approval that the company argued it would not have received because the agency has repeatedly concluded that glyphosate does not cause cancer.

The trial court in Missouri disagreed with Monsanto on preemption, and the jury went on to award Durnell $1.25 million in compensatory damages. In February 2025, the Missouri Court of Appeals affirmed this judgment, holding that Monsanto had failed to show both that Missouri’s requirements for product labels were at odds with federal law and that it had actually asked the EPA about adding a cancer warning to Roundup products. In January, the Supreme Court agreed to review this decision, which had deepened a split between lower courts over whether FIFRA allows state lawsuits like Durnell’s.

During approximately 75 minutes of oral argument on Monday, the justices wrestled with the structure and text of FIFRA, the EPA’s authority over Roundup product labels, and both express and implied preemption. Specifically, they considered whether FIFRA explicitly preempts lawsuits like Durnell’s through the statute’s uniformity provision, which says that states “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required” by the EPA. And they also considered whether it implicitly preempts them because companies cannot change the safety warnings on their products in response to state requirements without the EPA’s permission.

Paul Clement, who argued on behalf of Monsanto, emphasized that “Congress plainly wanted uniformity when it came to the safety warnings on a pesticide label” and contended that allowing suits like Durnell’s undermines that goal. Clement highlighted the EPA’s in-depth assessment of products like Roundup and careful balancing of public safety, farmers’ needs, and economic interests, asserting that juries in states across the country cannot disregard or ignore the EPA’s guidance.

Justice Ketanji Brown Jackson pressed Clement on the pace of the EPA’s research, noting that 15 years typically passes between when a pesticide product – including its label – is first assessed and registered and when it is reassessed and reregistered. If new research about the safety of a product is released during that 15-year period, she asked, why can’t states play a role in ensuring that pesticide companies update their labels accordingly?

Similarly, Chief Justice John Roberts noted that states might be able to move faster than the EPA’s review process. In that situation, Roberts said, “it’s not necessarily the case that they’re doing something inconsistent with what EPA would do.” It could be that they’re responding to new safety information “more quickly than the federal government is.”

In his responses to both Jackson and Roberts, Clement urged the justices to see the pace of the EPA’s work as a feature, not a bug. “If the agency takes its time” reviewing new research, he said, it’s because “it’s charged with the responsibility of looking not just at sort of how the new information affects hazards and the like” but also whether the research is reliable. Indeed, Clement later noted, when the IARC released its glyphosate study in 2015, it was not as if the EPA “said we don’t want to hear about it.” The agency “exhaustively studied it and they actually did peer review that IARC doesn’t do. They looked at more sources than IARC did. And then they came to a conclusion that’s shared by regulators around the globe that glyphosate doesn’t have a cancer risk,” Clement said.

Clement further argued that a lawsuit over a pesticide product’s label is not the right way for states to support the EPA’s effort to keep product users safe. Instead, anyone concerned about the safety of a product on the market can “initiate a cancellation proceeding,” which prompts the EPA to reassess safety warnings.

Like Clement, Principal Deputy Solicitor General Sarah Harris, who argued on behalf of the federal government in support of Monsanto, emphasized that the EPA is not “just sort of sitting on its hands” and is, in fact, “monitor[ing] new information” that might reveal previously unknown safety risks. And when such information comes to light, Harris continued, the EPA’s response is “completely different from a state just saying slap a cancer warning on the product,” because the EPA is considering not just whether to add a warning, but whether a company should recommend different “protective gear” or whether the company should only be allowed to sell the product to “professional applicators” moving forward. The EPA, Harris explained, “is looking holistically not only at someone who might read the label and be exposed but also at other people in the process and endangered species,” and, under FIFRA, states can’t “try to sort of second-guess or undermine this process.”

As he did with Clement, Roberts asked Harris why states should not be able “to do something to call [newly identified] danger to the attention of the people while the federal government” goes through its review of the research. Harris responded that they can take action. Specifically, they “can petition for cancellation” to “spur EPA to action” or decide to “restrict the use” of a particular pesticide within state borders. What they can’t do, Harris said, is require new safety warnings on product labels.

Justice Neil Gorsuch questioned why states have the “greater power” to “stop the product from being sold at all” within their borders but not the “lesser power” of forcing changes to a pesticide’s label. Harris contended that Congress chose not to give them that power.

Ashley Keller, who argued on behalf of Durnell, contended that Monsanto is blurring an important distinction between the EPA’s registration authority under FIFRA and its authority to approve product labels. While the law makes clear that the agency will review proposed product labels in determining whether to approve a pesticide for sale and distribution in the U.S., FIFRA does not say, according to Keller, that a company can cite the EPA’s review of a label to fend off state-level misbranding lawsuits. “After two briefs and a lot of podium time, Monsanto still hasn’t pointed to one word in FIFRA’s text that” gives such weight to the EPA’s label assessment, he said.

Justice Elena Kagan asked Keller how allowing state-level challenges of product labels squares with FIFRA’s uniformity provision, which is “clearly designed to achieve uniformity in labeling.” Keller responded that, while it may be designed to achieve that, “that’s not the law Congress wrote,” and, as written, FIFRA does not prevent juries from determining that a pesticide product needed a different safety warning.

Justice Brett Kavanaugh pushed back against Keller’s answer, questioning how “uniformity” is satisfied by a situation in which “each state can require different things.” Keller again asserted that expressing a desire to have uniform labels is different than actually writing a law that requires that level of uniformity.

Keller faced notably fewer questions than Clement or Harris, which made it difficult to predict how the justices were leaning in the case.

The court’s decision is expected by early July.

During oral argument in A.J.T. v. Osseo Area Schools, which involved disabled students’ rights against school districts, Williams & Connolly’s Lisa Blatt – one of the most experienced advocates to appear before the court in the modern era – accused opposing counsel of mischaracterizing her position. Justice Neil Gorsuch admonished her to choose her words more carefully, raising his voice. Blatt was unapologetic. She told him that experienced advocates should have their positions represented accurately. She later withdrew the specific remark.

The exchange was unusual by the standards of the Supreme Court bar, where decorum is so prized that Chief Justice John Roberts routinely instructs advocates to refer to opposing counsel as “my friend on the other side.” But it was also, in its way, revealing. Blatt has argued more than 57 cases at the court, has won over 85% of them, and is considered a SCOTUS legend by those on both sides of the political spectrum. She does not need to perform deference. She has already done the work.

So what does that work look like? And, relatedly, who are the lawyers that reach the top of the Supreme Court bar, and how did they get there? Using data on top ranked attorneys from Chambers & Partners in its appellate practices, along with argument counts compiled from Oyez.org, it is possible to sketch a fairly detailed picture of that pipeline, and to understand where, exactly, these folks are coming from.

What the justices say they want

Before turning to the data, it is worth spending a moment on what the justices themselves have said about what separates good appellate advocates from great ones. Their advice is remarkably consistent.

Roberts (who argued 39 cases before the court in his prior life as an advocate) has said that counsel should be able to tell the court “in simple English … exactly what it’s about and why you should win.” He has also emphasized that a skilled advocate should actually want the hostile questions – the ones from the justices predisposed to rule against you – because those are the questions that define the argument. Justice Antonin Scalia put it bluntly: “good counsel welcomes, welcomes questions.” He was equally direct about preparation: “point number one is to be very clear about what the issue that you’re urging upon the court is.”

Justice Anthony Kennedy focused on credibility: “the most important thing in a brief when you state the facts is you must be fair.” Justice Ruth Bader Ginsburg said simply: “First, be scrupulously honest.” Justice Clarence Thomas, who famously went years without asking questions from the bench, offered pragmatic advice about answering them: “Just say ‘yes,’ or say ‘no, but I’d like to qualify that,’ or ‘I’d like to explain.’”

The advice converges on a few core principles: clarity, honesty, and a genuine willingness to engage with the hardest version of the opposing argument. It also converges, implicitly, on the importance of credibility – the kind that can only be built over years of repeat appearances. Which is why the pipeline to becoming such an advocate matters so much.

The pipeline

The picture revealed by the data is one of substantial concentration – in institutions, in geography, and in a handful of career pathways.

First, there are only a relatively small number of firms with Supreme Court advocates. Gibson Dunn leads significantly, followed by Munger Tolles; Orrick; Latham; King & Spalding; Kellogg Hansen; and Arnold & Porter. The long tail of firms with only one advocate illustrates that elite Supreme Court practice is both institutionally clustered but individualized enough for standout lawyers to emerge.

Second, the vast majority of such lawyers can be found (unsurprisingly) in Washington, D.C., which accounts for 61 of the 75 office locations (several attorneys list multiple offices) represented – a commanding share. New York and Los Angeles each have three. Every other city has two or fewer. The Supreme Court bar is, with rare exceptions, a Washington-centered professional world.

Third is how many advocates in the dataset previously clerked for each Supreme Court justice. Scalia leads with seven former clerks among the ranked advocates, followed by Roberts and Kennedy at six each, and Justices Sandra Day O’Connor and Stephen Breyer at five. The pattern reflects not just ideological preferences but the emergence of certain chambers as especially reliable feeders into elite appellate practice.

Fourth is law school. Harvard leads with 19 Supreme Court advocates, Yale follows with 13, and the University of Chicago forms a distinct third cluster at seven. Virginia, Michigan, and Columbia each have four. Every other school has three or fewer. Indeed, the top two schools alone account for more than 45% of the dataset.

Undergraduate institutions are not particularly diverse either. Yale (at nine), Harvard (at eight), and Princeton (at six) lead, followed by Georgetown, Duke, and Dartmouth at four each. Elite formation thus begins well before law school for many of these advocates.

The argument distribution

If the biographical data tells us how advocates entered the pipeline, the argument data tells us what the pipeline actually produces – and how steep this internal hierarchy really is.

Most Chambers-ranked advocates – themselves already an elite group by any reasonable measure – cluster in the range of 5 to 20 arguments. A smaller number have argued 20 to 40 cases. And then there is a thin tail extending all the way out to 124.

As for those with the most Supreme Court arguments (per Oyez’s data), there is (as of last week) Paul Clement (at 124), Seth Waxman (at 90), Carter Phillips (at 90), David Frederick (at 63), Lisa Blatt (at 57), Neal Katyal (at 54), Donald Verrilli (at 53), Gregory Garre (at 51), and Jeffrey Fisher (at 50).

Four paths to the top: a closer look

Perhaps most instructive comparisons involve advocates who arrived at the top by somewhat different routes.

Let’s take Paul Clement, Seth Waxman, Carter Phillips, and Lisa Blatt – four of the highest-argument advocates in the Chambers dataset who are currently in private practice. They are, by any quantitative measure, some of the most experienced Supreme Court advocates at the private bar. But their biographical profiles contain some telling similarities and differences.

Clement and Waxman perhaps represent the most conventional version of the pipeline: both clerked at the Supreme Court, both served as solicitor general of the United States, and both attended elite law schools (Harvard and Yale, respectively). Clement graduated from Harvard Law after completing a degree at Cambridge, clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and then for Scalia before joining what would become a storied career at the Office of the Solicitor General and eventually in private practice. His 124 Supreme Court arguments are the most in the dataset by a substantial margin.

Waxman, a Yale Law graduate who clerked at the district court level but not at the Supreme Court, nonetheless also served as solicitor general and has argued 90 cases. Both men are institutional exemplars – products of every major box in the conventional pipeline.

Phillips represents a geographic and institutional variation on that model. He attended Ohio State as an undergraduate, went to Northwestern Law, and clerked for Judge Robert Sprecher on the U.S. Court of Appeals for the 7th Circuit before clerking for Chief Justice Warren Burger. He served as an assistant to the solicitor general and has also argued 90 Supreme Court cases while managing the Washington office of Sidley Austin. He is, by the numbers, as accomplished as anyone in the field, but he arrived without an Ivy League credential at either the undergraduate or law school level.

Blatt is the most interesting case study – not only because she is the only female on the list of top 10 advocates by Supreme Court argument. She attended the University of Texas as an undergraduate (summa cum laude) and went to Texas Law (also summa cum laude) – making her the only one of the four whose educational formation was entirely outside of the Northeast. She did not clerk at the Supreme Court, but did clerk for Judge Ruth Bader Ginsburg on the U.S. Court of Appeals for the D.C. Circuit, then spent 13 years at the Office of the Solicitor General before returning to Williams & Connolly, where she chairs the Supreme Court and Appellate practice.

What the Blatt profile illustrates – and what the aggregate data confirms – is that serving in the Office of the Solicitor General is, in many ways, a more powerful credential than a Supreme Court clerkship. Nearly 70% of the advocates in the Chambers dataset with government backgrounds served in the OSG or as solicitor general. A Supreme Court clerkship matters, and the data shows that former clerks of Scalia, Roberts, and Kennedy are especially well-represented. But OSG service is the more universal common denominator. It is where elite advocates learn to argue on the court’s docket, often many times per year. It is hard to think of better training.

What the data tells us — and what it doesn’t

This all captures a particular slice of the Supreme Court bar. It does not capture every important Supreme Court advocate, and it does not capture the bar as it existed decades ago. The geographic concentration in Washington, the dominance of OSG alumni, and the law-school distribution all reflect conditions that have developed over the past several decades and may continue to evolve.

What the data does tell us, with considerable clarity, is that the modern Supreme Court bar is structured – not random. There are pipelines, and the pipelines run through a small number of institutions: Harvard and Yale at the law school level, a handful of appellate chambers at the clerkship stage, and the Office of the Solicitor General as the dominant pre-private-practice training ground.

For the lawyer who genuinely aspires to practice at this level, the data offers a sobering portrait. The gates are narrow, and they are narrow at multiple points. The few who make it typically have several qualities: an education at some of the country’s most elite schools; credibility built over time, typically in government; and the kind of training that makes hostile questions feel like opportunities rather than threats.

At the Court

On Monday, the court announced that it will hear argument next term in Department of Labor v. Sun Valley Orchards, LLC, a case on the government’s response to violations of the terms of the H-2A visa program, which enables farms to hire immigrant workers for seasonal work. The court also announced that it will not review a case on school policies for parental notification when a student adopts a new gender identity. For more on Monday’s order list, see the On Site section below.

Also on Monday, the justices heard argument in Chatrie v. United States, on law enforcement’s use of geofence warrants, and Monsanto Company v. Durnell, on whether the federal law governing pesticide product labels supersedes state labeling requirements.

Today, the justices will hear argument in Cisco Systems, Inc. v. Doe I, on whether two federal laws that allow lawsuits in U.S. courts for torture and serious violations of international law permit private lawsuits for aiding and abetting such conduct.

Tomorrow morning beginning at 9:30 a.m. EDT, we will be live blogging as the Supreme Court possibly announces opinions and then hears argument in Mullin v. Doe, on the Trump administration’s effort to end Syrians’ and Haitians’ participation in the Temporary Protected Status program.

After Mullin, the justices will hear argument in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a dispute between a manufacturer of medication and its generic substitute.

Mornings Reads

As US high court prepares ruling, Americans oppose ending birthright citizenship, Reuters/Ipsos poll finds

Jan Wolfe and Jason Lange, Reuters (paywalled)

A new Reuters/Ipsos poll explored Americans’ views on some of the most “polarizing issues” before the Supreme Court this term, including birthright citizenship and laws preventing transgender athletes from competing in girls’ and women’s sports. “The poll, conducted nationwide April 15-20, found that 64% of Americans oppose ending birthright citizenship, while 32% support scrapping it as Trump ordered in January 2025,” according to Reuters. It also identified “broad support for restrictions on transgender girls and women competing in women’s school and college sports. ... About 67% of survey respondents supported banning transgender people from competing in female school sports. Ninety-two percent of Republicans said they supported such bans, compared with 44% of Democrats.”

U.S. Supreme Court upholds Texas’ newly redrawn congressional map

Eleanor Klibanoff, The Texas Tribune

In December, the Supreme Court on its interim docket paused a lower court ruling that had prevented Texas from using its new congressional map. On Monday, the justices formally overturned that ruling, meaning that “Texas’ newly redrawn congressional map is officially cleared for use,” according to The Texas Tribune. “The ruling ends, for now, the lengthy legal battle over Texas’ efforts to add as many as five more Republican seats to the U.S. House,” a battle that centered on claims that the new congressional map “was racially discriminatory.”

James Broadnax's appeals: US Supreme Court denies 2 claims, confession pending

Jamie Landers, The Dallas Morning News

James Broadnax, 37, was sentenced to death “in 2009 for the deaths of Stephen Swan, 26, and Matthew Butler, 28, outside their” music studio and is scheduled to be executed in Texas on Thursday. On Monday, the Supreme Court “denied two of Broadnax’s appeals, one pertaining [to] the use of rap lyrics as evidence and another regarding allegations that prosecutors struck prospective Black jurors from serving at his capital murder trial,” according to The Dallas Morning News. “[M]ore than 30 artists, scholars and music industry leaders, including Killer Mike, Young Thug, T.I., Anthony Anderson and Kevin Liles” had joined an amicus, or “friend of the court,” brief urging the court to side with Broadnax in the petition addressing the rap lyrics.

Haitians, Syrians aren’t the only immigrants watching US Supreme Court arguments on temporary status

Gisela Salomon, Associated Press

On Wednesday, the Supreme Court will hear oral argument “on the Trump administration’s plans to stop shielding Haitians and Syrians from deportation,” but it’s not just Haitians and Syrians who have a stake in the case, according to the Associated Press. The AP highlighted the experiences of people from El Salvador who have had the ability to live and work in the U.S. under the Temporary Protected Status program for 25 years, noting that the court’s decision on Haiti and Syria could impact Salvadorans, who will lose their protected status later this year without an extension from the Trump administration. Around 200,000 Salvadorans are currently shielded from deportation under TPS.

The April Argument Calendar

Steve Vladeck, One First

In a post for his Substack, Steve Vladeck reflected on the future of the April argument session, suggesting that it may be time for the court to do away with it in order to ensure that the justices don’t have to rush to complete opinions in the cases that were argued last by the end of the term. “Historically, there have really been only two good arguments for keeping the April calendar, and both have arguably been overtaken by recent events. The first is that the Court would run out of argument slots without it. But as the total number of oral arguments has continued to stay below 60 each term since OT2019, that claim is increasingly incorrect as a matter of basic math,” Vladeck wrote. “The second is that some of these cases are both late-breaking and need to be resolved during the current term. ... But even if that’s a regular phenomenon (only the TPS cases arguably meet that standard from this argument session), it’s not an argument for keeping the entire April calendar.”

On Site

From the SCOTUSblog Team

Court decides to hear additional case next term, turns down petition from parents challenging school gender-identity policy

The Supreme Court on Monday morning agreed to decide whether the Department of Labor has the power to hold hearings rather than go before a federal district court to collect money from employers who violate the terms of the visa program for seasonal farm workers. And after repeatedly putting off their consideration of the petition for review, the court on Monday also declined to take up the case of a Florida couple who contend that their child’s school had encouraged the child to transition to nonbinary at school over their objections.

Argument Analysis

Justices appear mixed on whether geofence warrant violated the Fourth Amendment

The Supreme Court on Monday grappled in Chatrie v. United States with a Virginia man’s challenge to the use of a “geofence warrant” – a warrant that directed Google to provide location data for cellphone users who were near a particular place during a specific time period – to obtain evidence that was used to convict him of a 2019 bank robbery. After two hours of oral arguments, the justices appeared divided over whether prosecutors violated the Fourth Amendment when they used the warrant to find Okello Chatrie’s location data.

Case Preview

Supreme Court to hear argument on whether corporations can be held liable as accomplices in violations of international law

Nearly 240 years ago, Congress enacted the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law. On Tuesday, the court will hear oral arguments in the latest attempt to define the scope of the ATS. The case, Cisco Systems v. Doe, pits the California-based technology company against a group of Chinese and U.S. citizens seeking to rely on the ATS to hold the company responsible for what they say is its role in helping the Chinese government develop a powerful surveillance system used to target, detain, and torture practitioners of the Falun Gong religion.

Contributor Corner

When NASA made Scalia turn on judicial restraint

In her In Dissent column, Anastasia Boden revisited the 2011 case of NASA v. Nelson, in which a unanimous court ruled that the government’s interest in information about government workers’ private lives outweighed any constitutional right to privacy those workers have. Boden highlighted “a concurrence that reads like a dissent,” in which “two justices objected to the idea of ‘informational privacy’ altogether. And Justice Antonin Scalia, famous for judicial restraint, chastised the court for not going far enough.”

A Closer Look

Who can be a justice?

Sources close to Justices Samuel Alito and Clarence Thomas have told CBS News’ Jan Crawford that neither justice intends to retire this year, but that hasn’t stopped the ongoing debate over whom President Donald Trump should pick if he has a chance to appoint another justice to the Supreme Court.

Suggestions range from traditional candidates from the federal judiciary – like 5th Circuit Judge James Ho, 5th Circuit Judge Andrew Oldham, or D.C. Circuit Judge Neomi Rao – to U.S. Solicitor General D. John Sauer and less conventional (at least in modern times) picks from the Senate. For example, Sen. Chuck Grassley has urged Trump to pick Sen. Ted Cruz or Sen. Mike Lee.

In light of this lively debate, today we’re exploring who actually is eligible to be a Supreme Court justice. You may be surprised to learn that candidates technically don’t have to have judging experience – indeed, they don’t even have to have a law degree (as was the case with Justice Robert Jackson). In fact, as the Supreme Court notes on its website, “[t]he Constitution does not specify qualifications for Justices.” Among other things, that means there’s no minimum age or education level to meet, and also no requirement that a justice be a native-born U.S. citizen.

However, the absence of official eligibility rules does not mean that just anyone can be a justice (although we know you’d be simply darling at it). That’s because there are plenty of unofficial norms that have developed – so many that Sarah Isgur devoted a recent segment of her Advisory Opinions podcast to discussing her frustration with the increasingly narrow path one must travel to be nominated to the Supreme Court.

Specifically, modern nominees have almost always been circuit court judges who completed a Supreme Court clerkship after graduating from an Ivy League or equivalent law school after having received an Ivy League or equivalent undergraduate degree. And as Amy noted during our April 22 live blog, an upper limit of around the age of 50 may be emerging, as presidents are looking to nominate someone who will be on the court for multiple decades. These unofficial criteria and others very much limit the pool of potential nominees.

Such a state of affairs would likely shock justices from 50 or more years ago, who – as you might have noticed from my colleague Nora Collins’ great series of Closer Looks on past chief justices – often spent years in private practice or as an elected official before being nominated to the court. Whether our current expectations of Supreme Court nominees is a problem is a separate issue, and one that has fueled much debate.

SCOTUS Quote

JUSTICE ALITO: “Mr. Unikowsky, I'm struggling to understand why we are hearing this case other than the fact that at least four of us voted to take it.”

— Chatrie v. United States  (2026)

The announcement came as part of a list of orders released on Monday from the justices’ private conference on Friday, April 24.

After an administrative law judge largely upheld the Department of Labor’s findings and fines, the farm went to federal court in New Jersey, where it challenged the DOL’s power to adjudicate the case and impose the penalties and back wages. U.S. District Judge Joseph Rodriguez granted the DOL’s motion to dismiss the farm’s claims.

Sun Valley Orchards then went to the U.S. Court of Appeals for the 3rd Circuit, which reversed and ruled in the farm’s favor. In its view, the Constitution required the Department of Labor to proceed before a federal district court, rather than an administrative judge.

The Department of Labor came to the Supreme Court in February, asking the justices to weigh in. U.S. Solicitor General D. John Sauer called it a “straightforward case.” Temporary farm workers, he said, “account for a sixth of the United States’ agricultural workforce. The decision below deprives the government of an important tool for ensuring that employers comply with the conditions for employing those workers.”

In a brief, unsigned order on Monday, the court granted the Department of Labor’s petition for review. The case will likely be argued in the fall.

In December, the Supreme Court cleared the way for Texas to use a new congressional map favorable to Republicans in 2026, pausing the ruling of a federal court in Texas which had found that the map unconstitutionally sorted voters based on race. In an order on the court’s interim docket, and over a dissent by Justice Elena Kagan that was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, the justices paused the lower court’s ruling.

In a one-sentence order on Monday morning, the court summarily (that is, without additional briefing or oral argument) reversed the district court’s decision, turning aside the challenge to the map. The court’s three Democratic appointees once again dissented, although they did not write a separate opinion.

After repeatedly putting off their consideration of the petition for review, the court on Monday also declined to take up the case of a Florida couple who contend that their child’s school had encouraged the child to transition to nonbinary at school over their objections. The school’s actions, the couple say, violated their fundamental rights as parents. The denial of review came one week after the justices turned down a similar petition for review from a Massachusetts couple.

The case began in 2019, when a man armed with a gun entered a federal credit union in the Richmond, Virginia, suburbs. The robber gave the teller a note demanding money and made off with nearly $200,000. When the investigation into the robbery stalled, law enforcement officials served a “geofence warrant” on Google, which directed the tech company to provide location data for cellphone users who were near the bank at the time of the robbery.

Google provided information to law enforcement officials in three steps. Google first gave law enforcement officials a list of the 19 accounts – but not the names of the accounts’ owners – linked to devices that were within 150 meters of the bank during the 30 minutes before and after the robbery. Based on that list, the government next asked Google for more information about nine accounts that were in the area during a two-hour period. Third and finally, a detective asked for, and received, the names and information for three accounts – one of which was Chatrie’s.

Based on the location data, law enforcement officials obtained a warrant to search two residences linked to Chatrie, where they found almost $100,000 of the stolen cash, a gun, and demand notes.

Chatrie was charged with (among other things) bank robbery. He argued that prosecutors should not be allowed to use the evidence obtained as a result of the geofence warrant against him because the warrant violated the Fourth Amendment.

A federal district judge agreed with Chatrie that the warrant in his case did not have the kind of probable cause and specificity that the Fourth Amendment requires, but she allowed the government to use the evidence on the ground that law enforcement had acted in good faith.

Chatrie then pleaded guilty, while reserving the right to appeal the district court’s denial of his motion to suppress the evidence obtained through the geofence warrant. He was sentenced to nearly 12 years in prison, followed by three years of supervised release.

A divided panel of the U.S. Court of Appeals for the 4th Circuit upheld the denial of Chatrie’s motion to suppress. In the majority’s view, the government had not conducted a “search” for purposes of the Fourth Amendment because Chatrie could not reasonably expect two hours’ worth of location data, which he had voluntarily allowed Google to have, to be kept private. The case then went to the full court of appeals, which upheld the panel’s ruling in a deeply splintered decision.

Chatrie subsequently came to the Supreme Court, which agreed in January to take up his case.

Representing Chatrie, lawyer Adam Unikowsky argued on Monday morning that “[t]he government conducted a search” of Chatrie’s location history, and that the geofence warrant “that purported to authorize that search violated the Fourth Amendment.” Chatrie, Unikowsky contended, had a reasonable expectation that his location data would be kept private, “given both its sensitive and revealing nature and the fact that it was stored in his password-protected account.” Moreover, he continued, the warrant was unconstitutional because police did not have “probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime” and because it later “gave the police unlimited discretion to decide who to search while casting Google into the role of magistrate.”

Deputy U.S. Solicitor General Eric Feigin, representing the federal government, countered that Chatrie was “asking for an unprecedented transformation of the Fourth Amendment into an impregnable fortress around records of his public movements that he affirmatively consented to allow Google to create, maintain, and use.” Chatrie’s reading of the Fourth Amendment, Feign argued, would be “debilitating and counterintuitive,” and it would “impede the investigation of kidnappings, robberies, shootings, and other crimes.”

Chief Justice John Roberts expressed skepticism about whether Chatrie could complain that he believed his location data would be private. “If you don’t want the government to have your location history,” Roberts said to Unikowsky, “you just flip that off.” He continued, “the only reason the government has access to this information is because you decided to make it public. … Just like,” Roberts posited, “if you don’t want” someone “to peer into your window, you can close your window or the shades.”

Justice Samuel Alito appeared to agree. In his view, it was “not a question of shutting it off. It’s a question of turning it on. And according to the government,” Alito said to Unikowsky, “your client had to go through multiple steps in order to turn it on. So he voluntarily disclosed to Google the information about where he was going to be.”

Justice Amy Coney Barrett also seemed dubious about any expectations of privacy that Chatrie may have had. She stressed that the warrant only covered “a few hours,” during which Chatrie was in “a public location. And nobody has a reasonable expectation of privacy in their public observable movements,” Barrett said.

Justice Sonia Sotomayor, on the other hand, emphasized that the trial judge in Chatrie’s case had concluded that Chatrie had not “necessarily” consented to share his location data.

Unikowsky echoed that thought, pointing to “findings that at midnight, when” a user is providing consent “to try to get your phone to work correctly, that may not be a consent to the government searching your phone.”

“And there are certainly Google Documents,” Sotomayor continued, “that show that it’s very hard and if not opaque to figure out how to turn these things off, correct?”

“Yes,” Unikowsky responded.

Justice Neil Gorsuch expressed concern that a ruling in favor of the government would also allow the government to search other digital media stored with Google – such as emails, photos, documents, and calendars – without a warrant. “So, if we were to rule that there was a voluntary exposure here to Google that allows the government unfettered access to” the location history, Gorsuch asked, “that ruling would pertain equally to email?”

Unikowsky answered that it would. “Essentially, all of your data on the cloud,” he said, “which is kind of all of your data if you use a computer, would be exposed to government searches without a warrant.”

Feigin told the justices that in the federal government’s view, location data was different from other digital information like email and photos. He explained that “the court has always treated … the contents of one’s personal thoughts as recorded differently from one’s exposed public location, which is all that’s at issue here.”

Roberts worried aloud that, if the government were to prevail, it could use geofence warrants “to find out the identities of everybody at a particular church, a particular political organization.”

Feigin assured Roberts that a federal law, the Stored Communications Act, would protect data in such a scenario. But when Roberts pushed Feigin to “just focus on the Constitution,” Feigin emphasized both that the government would generally obtain a warrant because “it’s just easier to get Google to comply if we do get a warrant” and that “people have affirmatively opted” into sharing their location data.

But that response did not seem to mollify Roberts. “So,” he said, “to prevent surveillance of sensitive locations, you have to rely on the fact that people are going to turn off something that many if not most people find is an important service?”

Similarly, Justice Elena Kagan pushed back against Feigin’s contention that some of the court’s earlier Fourth Amendment cases “focus on detecting the patterns of life and long enough periods of location to show the patterns of life.” She questioned why “the only thing that you would have an interest in protecting is the patterns of one[’s] life as opposed to the things that you do in one’s life that you particularly don’t want people to know about, such as going to a political event, going to an abortion clinic, et cetera.”

Alito seemed to suggest that however the court ruled, it would ultimately have no real impact on Chatrie’s case. A majority of the court of appeals, he noted, had voted to allow the evidence to be used on the ground that, even if the use of the warrant violated the Fourth Amendment, police officers had acted in good faith. Moreover, he added, Google now stores the location history on devices themselves, rather than in its own database.

In response to a question from Thomas, Feigin reiterated this idea, telling the justices that “there’s really no chance the opinion here would make the officer’s actions here unreasonable.” “At bottom,” Feigin concluded, “we just don’t think there’s anything that’s going to happen here other than an affirmance. You would essentially have something that looks like an advisory opinion.”

Some justices broached the possibility of a relatively narrow ruling that would help to clarify what warrants must include. Sotomayor, for example, suggested that the court could hold that the government needs “a warrant, it has to be particular as to time, place … and it has to explain the reasons why those limitations are reasonable.” Such a ruling, Sotomayor said, might have “value for the dispute that’s going on around the country and between and among judges even on this Court.”

Justice Brett Kavanaugh was less receptive to this possibility. In his view, the detective responsible for the warrant “should be applauded in terms of narrowing this down and going through multiple steps. I guess I’m trying to figure out,” Kavanaugh said, “why this was bad police work to get a warrant.”

But Feigin agreed with Sotomayor that such a ruling “could have value.” “Your Honor,” he told Sotomayor, “you’re simply describing what the Fourth Amendment requires.”

I. The stars and your medical records

When NASA’s Artemis II crew hurtled back to Earth from their ten-day mission, the four became the first to circle the moon in more than 50 years and travelled farther from this planet than any humans had gone before.

But before those astronauts could strap into the Orion capsule, before the engineers who built that capsule could swipe their badges to enter their labs, and before the scientists who plotted the trajectory could sit down at their desks, what personal information did the government demand from them? What did NASA know about their drug treatment histories, their romantic lives, or their mental health? And what protections were there to keep that information confidential?

In the 2011 case of NASA v. Nelson, the Supreme Court considered whether the people who make our rocket ships, as well as all sorts of other government workers, have any constitutional right to the most intimate details of their private lives. A unanimous court ruled that the government’s interest in this information outweighed any constitutional right to privacy that these workers have. But in a concurrence that reads like a dissent, two justices objected to the idea of “informational privacy” altogether. And Justice Antonin Scalia, famous for judicial restraint, chastised the court for not going far enough.

II. The suitability matrix

Nestled in a small, quiet suburb of Los Angeles, the Jet Propulsion Laboratory is NASA’s premier center for deep-space robotics and communications. Its spacecraft have flown to every planet in the solar system and beyond, and its website boasts that its technology has both brought the Hubble Space Telescope into focus and contributed to the camera on your smartphone.

Many of this country’s iconic unmanned space missions – from the U.S.’s first successful satellite, Explorer 1, in 1958, to each of the five Mars Rovers – were developed by JPL. NASA owns the facility, but the California Institute of Technology operates it under a government contract, meaning that JPL is staffed entirely by contract employees. For more than half a century following JPL’s inception, no background investigation was required of these or other governmental contract employees – except as required by specific contracts. Many employees had therefore worked at the lab for decades, contributing to missions of profound national and scientific importance, without any government agency ever asking them about their personal lives.

That changed in 2004. On the recommendation of the 9/11 Commission, President George W. Bush issued Homeland Security Presidential Directive 12, or HSPD-12, which mandated new, uniform identification standards for both federal civil servants and government contractors. Pursuant to this mandate, the Department of Commerce required contract employees with long-term access to federal facilities to undergo a background check, including those considered low-risk – like those who work at the JPL. The facility then informed employees that anyone who failed to complete the new process by October 2007 would be fired.

The employees became subject to two documents that became the center of a lawsuit. The first was Standard Form 85, or SF-85, a questionnaire for non-sensitive positions. SF-85 asked, among other things, whether employees had used illegal drugs within the past year and, if so, whether they had received treatment or counseling. The second was Form 42, a reference form sent to former employers, schools, landlords, and individuals named by the employee that asked open-ended questions concerning intimate facts about the applicant’s life, including their financial integrity, violations of law, mental or emotional stability, and more. All such records were covered by the Privacy Act, meaning they could not be disclosed without the individual’s written consent. But the act had a slew of loopholes that allowed for some disclosures, and anyway, it only provided for damages if the unauthorized disclosure was intentional or willful rather than negligent, and only if the plaintiff could prove damages.

Then there was the suitability matrix, which set out criteria for evaluating employees based on factors like homosexuality (if a risk for blackmail), sodomy, carnal knowledge, illegitimate children, cohabitation, adultery, mental or emotional issues, and making obscene phone calls. JPL employees had sued over it after the matrix was accidentally posted on an internal server. Nevertheless, at oral argument, Acting Solicitor General Neal Katyal stated that NASA did not and would not use it.

In August 2007, 28 JPL contract scientists and engineers – including lead plaintiff Robert “Half” Nelson, a senior research scientist – sued NASA, Caltech, and the Department of Commerce, alleging that portions of the background check violated their constitutional right to informational privacy. When they were hired, no such checks were required. But now they were forced to choose between surrendering intimate details of their private lives or losing their job.

III. A right in limbo

Nelson relied on the right to “informational privacy,” which the Supreme Court had alluded to but never fully accepted. In the 1977 case of Whalen v. Roe, the court considered a New York program that required pharmacies to report to a state database the names and addresses of patients who were prescribed certain drugs that had both legitimate and illicit uses. The court upheld the program, but in doing so, it described two distinct privacy interests the Constitution might protect: first, an “interest in avoiding disclosure of personal matters,” and second, an interest in making important personal decisions without government interference. That first interest is what some lawyers and scholars came to call “informational privacy” or the “right to data privacy.”

In Whalen, the court neither firmly established nor rejected this right. It simply said that the challenged program had protections against public disclosure that meant the law did not infringe any such interest. Later that same year, in Nixon v. Administrator of General Services, the court again ruled that even if right existed, the challenged action didn’t violate it. For the next 30-plus years, the court was silent on whether a constitutional right to informational privacy existed. Nelson asked the Supreme Court to answer that question.

The U.S. Court of Appeals for the 9th Circuit had ruled that SF-85’s drug-treatment disclosure requirement and Form 42’s open-ended questions were likely unconstitutional because they were not narrowly tailored to the government’s interests in confirming the employees’ identities or ensuring security of the lab. But it upheld the government’s inquiries into recent illegal drug consumption as important to combatting illegal drug use. The 9th Circuit denied rehearing en banc over the dissents of five judges, including Judge Alex Kozinski, who wrote that the lack of clarity over the right to informational privacy had rendered the courts of appeals’ attempts to apply it “a bit like building a dinosaur from a jawbone or a skull fragment, and the result looks more like a turducken.”

The Supreme Court granted certiorari in March 2010.

IV. Standard operating procedure

At oral argument, Acting Solicitor General Neal Katyal argued that background checks are a standard feature of federal employment, one that has been required of civil service employees since the 1950s and had simply been extended to a class of workers who functioned in every relevant respect like civil servants. Katyal told the justices that background checks had been conducted “for millions of employees for dozens of years.” And he emphasized that over the prior five years, only 128 individuals across federal government had been denied credentials due to information provided under SF-85, and none of those denials resulted from the challenged inquiries about drug treatment.

Chief Justice John Roberts asked who the protections were for. Why did the government even need information about drug counseling? Katyal suggested it was “for the good of the employee,” to which the chief responded that “whenever the government comes and says this is for your own good… you have to be little suspicious.” Justice Ruth Bader Ginsburg suggested that if it was good for the employee, then “make it voluntary.”

Most of the tough questions for Katyal prodded the limits of his theory: were there any questions the government couldn’t ask? Katyal didn’t think the justices needed to answer that question, because whatever the limits, they hadn’t been reached here. But when nudged, he answered that there might be some limits if the government asked questions about behavior that implicated fundamental rights, such as the “sexual practices of its employees.”

When attorney Dan Stormer stood up to argue for the employees, he approached a skeptical bench. Scalia said flatly: “I looked at your table of authorities in your brief, and you have cases listed, you have statutes listed; there is not a single citation anywhere in your brief to a provision of the Constitution. What provision of the Constitution are you relying on?”

Before Stormer could answer, Scalia continued:

I think it’s a very nice thing that the government shouldn’t ask intrusive questions. I also think that it’s a nice thing that the government should pay a living wage to its employees, but I don’t feel authorized to go around saying how much the government should pay each of its employees because there is nothing in the Constitution about that, and the question is left to Congress.

Stormer answered that the “[l]iberty to control information about oneself” resided in the Fifth Amendment’s due process clause, which says that the government cannot take away life, liberty, and property without due process of law. Stormer was basing his argument on the concept of substantive due process – the idea that due process protects liberty from arbitrary government action even when proper procedures are followed, and even if a specific right is not explicitly laid out in the Constitution or Bill of Rights. Here, he said, the government was depriving JPL’s contract employees of the liberty to control information about themselves without sufficient reason.

The justices balked. In their view, under Nelson’s theory, any time the government asked a question of its employee, that employee could come to court, force the government to justify itself, and put courts in the position of deciding whether that was proper. Such a regime would open the courthouse to a flood of challenges to routine government information-gathering.

Only Justice Sonia Sotomayor didn’t seem bothered by Nelson’s suggestion. “Do you think there is something wrong with the government having to explain why it seeks information?” she asked. “I mean, I would think that would be fairly simple in virtually every situation.”

V. A right that dare not speak its name

By the time the opinion came out, even Sotomayor had been swayed. The court ruled 8-0 for the government (the court’s newest justice, Elena Kagan, did not participate in the case because she had appeared on the briefs as solicitor general). The majority opinion, written by Alito and joined by Roberts and Justices Anthony Kennedy, Ginsburg, Stephen Breyer, and Sotomayor, assumed without deciding that a right to informational privacy exists, and then held that the background checks did not violate it.

As to the SF-85 drug treatment question, Alito reasoned that “illegal-drug use is both a criminal and a medical issue,” and the government was seeking to “separate out those illegal-drug users who [were] taking steps to address and overcome their problems,” and thus should be credentialed, and those who were not. This framing recast the inquiry as not just permissible, but affirmatively “humane.”

The opinion’s treatment of the employees’ data breach concerns was brief. The court noted that the collected information was subject to the Privacy Act, that privacy protections need not be “ironclad” to satisfy constitutional scrutiny, and that the “mere possibility” of data breaches are always a risk when the government collects information.

In sum, the opinion dismissed any disclosure concerns. It did not confront the suitability matrix, which Katyal had denied was being used for those employees. And it declined to say whether informational privacy is a constitutional right and, if so, what standard courts should apply.

There were no dissents, but Scalia’s concurrence, joined by Justice Clarence Thomas, certainly read like one.

In Scalia’s view there was no constitutional right to informational privacy, and the court should have said so. He called the fact that Stormer hadn’t cited to the Constitution in his briefs “refreshingly honest”:

One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution. Regrettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this litigation, that the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment. That counsel invoked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented.

Scalia, a long-time skeptic of substantive due process and a judge with a narrow view of the liberty protected by the due process clause, thought the justices were trying to fit a round peg into a square hole. The collection of information, he said, was covered by the Fourth Amendment’s protections for searches and seizures. But the 9th Circuit had ruled that this was not a search. “That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.”

Nor did Scalia believe that the decision could be justified based on stare decisis, or the idea that the court should rule one way now because it had “made the same mistake before.” Despite that the majority had called Whalen and Nixon“ ‘seminal’—seminal!—decisions,” neither of them had “supplied any coherent reason why a constitutional right to informational privacy might exist.”

On the majority’s approach of assuming the right existed without actually deciding, Scalia was at his most withering. If no right existed, then the court was “pontificat[ing] upon a matter that is none of its business: the appropriate balance between security and privacy.” If the right really did exist, then the court should say so rather than resorting to an “Alfred Hitchcock line of our jurisprudence” that left everyone in suspense. Avoiding the prerequisite question, he said, “harms our image, if not our self-respect, because it makes no sense.” “Whatever the virtues of judicial minimalism, it cannot justify judicial incoherence.”

VI. They told you so

Less than two years later, on October 31, 2012, a NASA headquarters employee left a laptop in a locked vehicle in Washington, D.C. That laptop, which contained records of sensitive personally identifiable information – Social Security numbers, addresses, and the intimate details gathered through the background checks – was stolen.

The fallout cost taxpayers nearly $960,000 in security upgrades. This fourth serious laptop theft at NASA since March 2011 prompted immediate action to encrypt the hard drives of all agency laptops. (NASA and HP had already agreed by contract to encrypt all new machines by November 2011, but it hadn’t happened.)

Robert Nelson issued a statement: “We warned of this possibility five years ago when we filed our lawsuit. We were ignored by the courts. Now, unfortunately, by virtue of the cavalier behavior of a NASA bureaucrat our argument has been proven.”

Then, in June 2015, the Office of Personnel Management disclosed a catastrophic cyberattack, widely believed to be linked to Chinese state intelligence agencies. Over 20 million records were affected, including SF-85 questionnaires. The “mere possibility” the Court had dismissed had become a certainty.

The rise of digital surveillance, mass data collection, and government databases of unprecedented scale has made the question of informational privacy an immediate practical problem for millions of Americans. Several states have enacted comprehensive data privacy laws and the federal government has updated its cybersecurity requirements. But the fundamental question – whether a person has a constitutional right to be free from the government’s collection and storage of their most intimate personal information – remains unanswered.

Scalia argued that the court’s “restrained” ruling in Nelson was actually its own form of judicial activism. It put the cart before the horse, he said, by allowing the court to resolve a case without first deciding whether the asserted right existed at all. But that critique cuts against Scalia’s approach, too. His reluctance to recognize rights merely because they don’t appear in the text risks refusing to answer a different question that the Constitution asks: What’s the scope, if any, of unenumerated rights? Both questions are worth answering. And refusing to answer either is activist in its own way.

One of the first efforts in the modern era to rely on the ATS came in 1980, when a Paraguayan doctor and his daughter filed a lawsuit in the United States against Americo Pena-Irala, a former Paraguayan police official living in New York. The plaintiffs, Joel and Dolly Filartiga, alleged that Pena-Irala had kidnapped Joel’s son and Dolly’s brother, Joelito, and tortured him to death in retaliation for Joel’s opposition to the Paraguayan government. The Filartigas argued that the ATS gave U.S. courts jurisdiction over their lawsuit; the U.S. Court of Appeals for the 2nd Circuit agreed, observing that torture violates the law of nations.

In the 46 years since the Filartiga decision, plaintiffs increasingly have relied on the ATS to bring lawsuits filed in U.S. courts seeking compensation for human-rights violations that occurred overseas. These lawsuits were brought not only against foreign government officials, but also against corporations for their role in aiding and abetting – that is, facilitating – human-rights violations by foreign governments.

The defendants in these lawsuits resisted what they regarded as efforts to make the United States, as Roberts once put it, the world’s “moral custodian.” In 2004, the Supreme Court indicated that the kinds of claims that could be brought under the ATS are relatively limited. In Sosa v. Alvarez-Machain, the court ruled that the ATS itself only gives courts the power to hear cases; it does not, standing alone, provide a cause of action. The court ruled that, at the time the ATS was enacted, it would have allowed lawsuits alleging a “narrow set of violations of the law of nations” – violations of safe-passage guarantees, violations of an ambassador’s rights, and piracy – that could have had serious effects on the United States’ relations with other countries. Claims brought under the ATS now, the court cautioned, should go forward only if they both are widely accepted as a violation of international norms and can be defined as specifically as those three 18th-century wrongs.

In the years since its decision in Sosa, the court has further limited the scope of the ATS. In 2013, in Kiobel v. Royal Dutch Petroleum Co., the court held that claims under the ATS must be based on conduct that occurs in the United States. And in Jesner v. Arab Bank, the court ruled that foreign corporations cannot be sued under the ATS.

The dispute before the court on Tuesday has its roots in efforts by the Chinese Communist Party and Chinese security officials to develop a massive online surveillance system known as the “Golden Shield” to find practitioners of Falun Gong, a religion that began in China in the early 1990s. By 1999, when the Chinese government designated Falun Gong organizations as illegal, it had as many as 100 million practitioners in China.

The plaintiffs in the case now before the Supreme Court are Chinese nationals and one U.S. citizen, Charles Lee, who contend that the Chinese government used the Golden Shield technology to identify them as Falun Gong practitioners. And as a result, they say, they were detained and subjected to human rights abuses in China that included torture, forced labor, beatings, and forced conversions. Two of the plaintiffs represent family members who, they claim, disappeared or were killed while in the government’s custody.

In 2011, the plaintiffs filed a lawsuit in federal court in California against Cisco and two of its top officials: John Chambers, the company’s CEO, and Fredy Cheung, the vice-president of Cisco’s China subsidiary. The Chinese plaintiffs brought their claims under the ATS, while Lee relied on the Torture Victim Protection Act, a 1992 law that allows suits against individuals who subject others to torture while acting on behalf of a foreign government. In both cases, the plaintiffs did not contend that Cisco and its officials actually committed the abuses themselves. Instead, they say, Cisco, Chambers, and Cheung aided and abetted those abuses – specifically, they “designed, implemented and helped to maintain a surveillance and internal security network” that made it easier for Chinese officials to identify Falun Gong practitioners.

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

After a long and complicated path through the lower courts, in 2023, the U.S. Court of Appeals for the 9th Circuit ruled that the plaintiffs’ aiding-and-abetting claims could go forward. Over a dissent by seven judges, a fuller court of appeals declined to rehear the case. Cisco then came to the Supreme Court, which agreed in January to weigh in.

In its brief on the merits, Cisco tells the court that “[t]he time has now come for this Court to close the door it left ajar in Sosa.” First, it argues, only Congress can create causes of action; courts cannot read any additional rights to bring lawsuits into the ATS beyond the three that Congress likely originally had in mind when it enacted the law nearly 240 years ago.

Even if the Supreme Court decides to leave open the prospect that there may be some “narrow class” of additional claims that may be brought under the ATS, Cisco contends, plaintiffs cannot rely on the ATS to bring claims for aiding and abetting violations of international law. In 1994, in Central Bank of Denver v. First Interstate Bank of Denver, it writes, the Supreme Court made “clear that aiding and abetting liability is not available unless Congress has expressly provided for it” – which it has not done in the ATS.

At the very least, these plaintiffs’ aiding-and-abetting claims cannot go forward, Cisco alleges, because doing so would create precisely the kind of foreign-relations problems that Congress sought to guard against when it enacted the ATS. Allowing aiding-and-abetting claims here would effectively put the actions of the Chinese government with regard to its own citizens on trial, which would be particularly inappropriate when Cisco’s sales complied with U.S. export controls and policies. 

Cisco tells the justices that the claim by Lee, the U.S.-citizen plaintiff, under the TVPA “reflects the same fundamental flaw that pervades the other” plaintiffs’ “ATS claims: it seeks to create through implication what Congress declined to enact through legislation.”

Finally, Cisco warns about the practical implications of a ruling for the plaintiffs in this case. “Despite this Court’s efforts to police the scope of actionable conduct and the universe of potential defendants under the ATS, plaintiffs and their lawyers have continued to pursue ambitious ATS litigation” that can last “for a decade or more,” it writes. And although such litigation has ultimately “had little benefit for plaintiffs” – with only six cases out of 300 leading to money judgments for the plaintiffs – it still creates a danger that U.S. corporations will not want to invest overseas as a result, the company cautions.

The Trump administration filed a “friend of the court” brief supporting Cisco in which it emphasizes the foreign-relations problems that would result from allowing aiding-and-abetting claims under the ATS. “Congress,” it tells the justices, “intended the statute to ‘promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable’ for ‘refus[ing] to provide redress to their citizens’ for” wrongs committed in the United States.

Moreover, the government continues, the TVPA itself supports the argument that the ATS also does not allow such liability. The TVPA, the federal government writes, is the only law that Congress has passed to specifically create a cause of action under the ATS. But because the TVPA does not provide for aiding-and-abetting liability, the government suggests, “[i]t therefore strongly indicates that this Court should not extend the ATS in that way for claims outside the TVPA’s ambit.”

The plaintiffs urge the justices to refrain from adopting “a categorical bar on aiding-and-abetting claims” under the ATS. “Systematic abuse requires significant resources and infrastructure,” they say, so that “[p]reventing future abuses requires holding all culpable actors accountable, as the Allies did when they prosecuted the corporate actors who provided poison gas to Nazi death camps during the Holocaust.”

First, the plaintiffs contend, when Congress enacted the ATS in 1789, aiding and abetting the violations of the international norms that the law was intended to address was itself considered a violation of international law. And it continues to be so today, they emphasize, as shown by the fact that “[a]ll modern tribunals established to prosecute international crimes,” including the Nuremberg tribunals and the international criminal tribunal convened to prosecute war crimes in Rwanda and the former Yugoslavia, “impose aiding-and-abetting liability.” Moreover, they continued, “Cisco has never contested that torture, extrajudicial killings, disappearances, or prolonged arbitrary detention” are precisely the kinds of violations of international norms for which plaintiffs can seek relief under the ATS, which means that claims for aiding and abetting such conduct can also be brought under the ATS.

Indeed, the plaintiffs argue, allowing claims like theirs to go forward would be more consistent with Congress’ purpose in enacting the ATS: “to ensure foreign victims of a law-of-nations violation could obtain civil remedies from responsible parties, in part to avoid the use of governmental funds.” “Categorically barring” such claims, the plaintiffs say, “undermines this goal of requiring those responsible to provide compensation.”

Lee’s TVPA claim is equally viable, the plaintiffs insist. The Supreme Court has acknowledged that “the TVPA extends liability beyond the direct perpetrators of” torture. That interpretation is reinforced by the text of the TVPA, they say, which creates liability for anyone who “subject[s]” someone else to torture. “The ordinary meaning of the verb ‘subjects’ is to expose or render liable another to an effect or condition. Aiding and abetting fits squarely within this meaning, as those who aid and abet take concrete actions that have a substantial effect on causing a victim to experience torture or extrajudicial killing at the hands of the direct perpetrators.”

More broadly, the plaintiffs write, the TVPA was intended to fulfill the U.S.’s obligations under the Convention Against Torture, which “requires states to ensure victims have access to remedies against those who aided and abetted their torture.”

The plaintiffs also push back against Cisco’s predictions that allowing the claims against it to go forward will have negative long-term effects, either in terms of foreign-relations implications or for U.S. corporations. The Supreme Court’s earlier decisions limiting the scope of the ATS “have, as a practical matter,” they say, already “sharply reduced the number of ATS cases, undermining Cisco’s prophecy of dire consequences if this Court affirms.” Moreover, they posit, a case like this one actually “advances U.S. foreign policy” because “it seeks to deter complicity in China’s brutal persecution of a religious minority.” Indeed, they note, since this case was first filed 15 years ago, the Chinese government “has not communicated any objections to any court about” it.

Also, a reminder that the Advisory Opinions podcast is launching a newsletter that will bring information about each new AO episode right to your inbox. Sign up here.

At the Court

On Friday, the court indicated that it may announce opinions this Wednesday, April 29, at 10 a.m. EDT. Our previously planned live blog for the argument that morning in Mullin v. Doe on the Temporary Protected Status program will also address any opinion announcements.

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

Also today, the justices will hear argument in Chatrie v. United States, on law enforcement’s use of geofence warrants, and Monsanto Company v. Durnell, on whether the federal law governing pesticide product labels supersedes state labeling requirements.

On Tuesday, the justices will hear argument in Cisco Systems, Inc. v. Doe I, on whether two federal laws that allow lawsuits in U.S. courts for torture and serious violations of international law permit private lawsuits for aiding and abetting such conduct.

As noted above, on Wednesday beginning at 9:30 a.m. EDT, we will be live blogging as the Supreme Court hears argument in Mullin v. Doe, on the Trump administration’s effort to end Syrians’ and Haitians’ participation in the Temporary Protected Status program. After Mullin, the justices will hear argument in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a complex dispute between manufacturers of medication and its generic substitute.

Morning Reads

Justice Department drops criminal probe of Fed chair Powell, likely clearing the way for Warsh

Christopher Rugaber and Eric Tucker, Associated Press

U.S. Attorney for the District of Columbia Jeanine Pirro announced on Friday that the “Justice Department has ended its investigation into Federal Reserve chair Jerome Powell, clearing a major roadblock to the confirmation of Kevin Warsh as his successor,” according to the Associated Press. “Sen. Thom Tillis, a North Carolina Republican, had said he would oppose Warsh until the investigation was resolved, effectively blocking his confirmation.” The Powell investigation had “focused on a $2.5 billion building renovation that Trump criticized sharply last year for its cost overruns [and] Powell’s brief testimony about the renovation before the Senate Banking Committee last June.” “Powell said in January that the investigation was not really about the renovation or his testimony but ‘is a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public, rather than following the preferences of the President.’” The investigation followed Trump’s “attempt last August to fire Lisa Cook, a member of the Fed’s governing board.” The Supreme Court will soon rule on whether Cook can keep her job.

Appeals court blocks Trump's asylum crackdown at U.S.-Mexico border

Melissa Quinn and Jacob Rosen, CBS News

On Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit “blocked President Trump’s directive suspending access to asylum and other legal protections for migrants unlawfully crossing the southern border,” holding “that federal immigration law does not allow the president to deport migrants under new summary removal proceedings implemented by the Trump administration or to suspend their right to apply for asylum,” according to CBS News. “The Trump administration can ask the full D.C. Circuit to review the decision or appeal to the Supreme Court.”

US adding firing squads, electrocution and gassing to federal execution methods

Jonathan Allen, Reuters (paywalled)

On Friday, the Trump administration announced “plans to add firing squads, electrocution and gas asphyxiation as alternative methods of executing people convicted of the gravest federal crimes ... noting difficulties in obtaining drugs for lethal injections,” according to Reuters. “Adding alternative methods to the protocol will allow for executions ‘even if a specific drug is unavailable,’ the report said.” Although prisoners on death row can challenge a planned method of execution as a violation of “the U.S. Constitution’s prohibition of ‘cruel and unusual punishments,’” “[s]uch challenges have always failed at the U.S. Supreme Court, which has never previously found an adopted execution method to be unconstitutional.”

The Eight-Figure Talent Race for Supreme Court Lawyers

C. Ryan Barber and Erin Mulvaney, The Wall Street Journal (paywalled)

The Wall Street Journal reported on the “well-compensated game of musical chairs” playing out as law firms “dangl[e] $10 million-plus compensation to lure” Supreme Court advocates. “In the latest defection, Kannon Shanmugam is leaving Paul Weiss amid a tumultuous time for the firm and decamping to Davis Polk, where he is launching a Supreme Court and appellate practice group. Slated to argue his 40th case before the high court next week, Shanmugam had been wooed by other rival firms, including Sidley Austin.” Other recent moves include Jeff Wall and Morgan Ratner to Gibson Dunn, Neal Katyal to Milbank, and Elizabeth Prelogar to Cooley. “Industry observers say that while Supreme Court lawyers hardly haul in the revenue of a rainmaker, they can help burnish firms’ reputations and drive more profitable appellate work their way.”

The Supreme Court’s not-so-sinister ‘shadow docket’

Michael W. McConnell, The Washington Post

In a column for The Washington Post, Michael W. McConnell reflected on the growing “[c]ontroversy over the Supreme Court’s so-called shadow docket,” the “pejorative label for the court’s method of deciding whether a government policy may stay in effect while challenges work their way through the system.” According to McConnell, “the wholesale condemnation” of the court’s shadow docket decisions “is misguided,” because these “cases are driven by the practical reality that it takes months if not years for a case to wend its way through the judiciary. Whether a policy is implemented while the case is litigated is often the whole ballgame. By the time it gets to the Supreme Court, the harm is already done.” “In a hierarchical system like our judiciary,” McConnell continued, “it makes sense for the final decision-maker to become involved in a case when an interim order effectively resolves the dispute.”

On Site

Case Preview

Court will consider whether Trump administration properly revoked protected status for Syrians and Haitians

On the last regularly scheduled day of arguments for the 2025-26 term, the Supreme Court will consider a dispute over the Trump administration’s efforts to significantly scale back a program that allows foreign citizens to stay in the United States when the U.S. government believes it is not safe for them to return home.

Case Preview

Court to consider thorny dispute between manufacturers of medication and its generic substitute

Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc. presents a complex dispute between Amarin, the manufacturer of Vascepa, a prescription medication to reduce heart disease, and Hikma, which markets a generic substitute for Vascepa. The issue before the court is how hard it should be to hold Hikma responsible when pharmacists dispense Hikma’s substitute to patients who have been prescribed Vascepa for a use that infringes Amarin’s patents.

SCOTUS Outside Opinions

Digital location data heads back to the Supreme Court

In a column for SCOTUSblog, Mailyn Fidler explained why Chatrie v. United States, which will be argued today and concerns police access to certain digital records of cellphone users’ location data, “is the most important case on digital privacy the court has heard in years.”

A Closer Look:

The first “friend of the court” brief

If you follow the court’s oral argument docket in any semi-regular capacity, you’ll know that most (if not all) cases typically have numerous “friend of the court,” or amicus briefs.

Cases that attract the most amicus briefs often involve high stakes or have significant financial implications (e.g., Dobbs v. Jackson Women’s Health Organization had more than 140, New York State Rifle & Pistol Association v. Bruen had more than 80, and the SFFA cases – Students for Fair Admissions v. the University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College – had just shy of 100). Supreme Court Rule 37 states that an amicus brief that “brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.” But a brief that does not do so “burdens the Court, and its filing is not favored.”

So how did this venerable tradition begin?

It is believed that amicus briefs preceded “even the common law, having [their] roots in ancient Rome.” In 17th century England, the role of the amicus was “principally to assist judges in avoiding errors” made by the parties.

As for our Supreme Court, one of the first amicus briefs came when the justices requested the statesman Henry Clay’s help in deciding how the commerce clause applied to a land agreement (here, the Virginia-Kentucky compact of 1792) between two states. Virginia had ceded some of its land to the U.S. government in 1781, but with the understanding that “all private rights and interests of lands within the said district … shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state.” Later, Virginia landholders argued Kentucky passed laws violating their previous agreements. The court's initial 1821 opinion in Green v. Biddle, authored by Justice Joseph Story, held that Kentucky's laws violated the Constitution’s contracts clause by violating the 1792 compact.

In his amicus brief, Clay asked the court to have a full rehearing of the case, and argued that Virginia could not dictate which laws Kentucky enacted. Overturning the Kentucky laws, Clay said, would cause “the most tremendous effects of any ever delivered by a judicial tribunal,” and the court’s decision would disrupt “numerous occupants of land.” After Clay’s brief, the court withdrew its 1821 decision and allowed the case to be reargued in February 1822. Clay appeared at the second argument, but to no avail. An opinion announced by Justice Bushrod Washington reached the same conclusion as the prior one, again striking down Kentucky’s laws.

The U.S. government had filed its first amicus brief earlier, in 1812’s Schooner Exchange v. McFaddon, which “addressed the rights of Americans whose ship had been seized at sea by Napoleon’s agents and then sailed into Philadelphia under a French flag.” The attorney general was “allowed to intervene by way of ‘a suggestion,’” and contended that the ship at hand was a “French ‘public vessel’” – which the court accepted.

After Clay, amicus briefs began to be filed more frequently by the United States, state governments, private attorneys, and lobbyists. The court implemented its first written rule governing amicus briefs in 1937 – the rule that established the submission criteria still reflected in today's Rule 37. In 1990, the court issued a further rule expressly discouraging the filing of redundant amicus briefs. It is of some controversy whether that rule has proven successful, given the volume of amicus briefs has increased sharply since the 1950s, with amicus briefs in the dozens and even hundreds being filed in the most contentious cases.

SCOTUS Quote

MR. GANNON: “Well, I suspect yes, if for no other reason than be – I mean –”

JUSTICE SCALIA: “Yes, yes what? I forgot the question.”

MR. GANNON: “Yes, if for no other reason than because –“

JUSTICE SCALIA: “Yes, it's okay.”

MR. GANNON: “Yes, that that would be a problem – I'm sorry, that that would not be permissible. I've forgotten the question. But the reason why this would not be –”

CHIEF JUSTICE ROBERTS: “I thought it was an unforgettable question.”

(Laughter.)

MR. GANNON: “I promise you I won't forget it now.”

JUSTICE SCALIA: “Yes. Yes, we have no bananas.”

— Wellness International Network Ltd. v. Sharif  (2015)

The problem arises because Vascepa, like many pharmaceuticals, has some uses that are patented and some that are not. The FDA has approved multiple uses of Vascepa. For the on-patent uses, it would infringe patents held by Amarin for doctors in those situations to prescribe, pharmacies to dispense, or patients to use the generic version. But the FDA also has approved Vascepa for some uses that are off-patent, which is to say that no patent protects Amarin from the competition of generics for patients that have those conditions.

The statutory framework for generics, the Hatch-Waxman Act, addresses the situation, offering the generic manufacturer seeking approval of its pharmaceutical the option to submit a certification asking approval of its drug on the premise that it will market the pharmaceutical only for the off-patent use. If the FDA approves that, as it did here, the generic manufacturer uses a so-called “skinny label,” which describes use of the generic only for the off-patent uses.

In reality, whatever those labels might say, it is quite common for pharmacies to dispense the generic for the on-patent use. That is true in part because of the reality of prescription writing – prescriptions typically identify the pharmaceutical but not the reason for the prescription, so it is impossible for the pharmacy to know whether dispensing the generic would infringe the branded manufacturer’s patents. It also reflects state generic substitution laws, which allow (if not command) pharmacists to substitute generics whenever they are less expensive for the customer than the branded pharmaceutical.

Against that backdrop, the branded manufacturer here (Amarin) is suing Hikma (the generics manufacturer) contending that Hikma is responsible for the dispensing and use of its generic product in settings protected by Amarin’s patents. Because even Amarin acknowledges that Hikma itself has not infringed Amarin’s patents, the suit arises under a provision of the Patent Act imposing secondary liability on Hikma for infringement by others. Crucially, that statute permits liability only if Hikma “actively induces” the infringement by the pharmacies and customers. So the key question for the justices is whether the activities of Hikma are enough to justify liability under that standard.

Amarin characterizes Hikma’s activities as “active encouragement” through the medium of advertising. It points first to the generic manufacturer’s website, which has referred at times to the on-patent use of Vascepa as a potential use of its generic. It also points to press releases about the generic substitute, which describe the total size of the potential market for Vascepa, even though a strong majority of Vascepa’s revenues comes from the on-patent rather than off-patent uses. Finally, related to those, Amarin contends that the “skinny” label that the generic manufacturer uses includes information that was relevant only to the on-patent use of the pharmaceutical.

Hikma makes two points in response. The first is to emphasize the high standard of the statute, which applies only if the generic manufacturer “actively induces infringement” of the branded manufacturer’s patents. Whatever one can say about Hikma’s conduct, it contends it does not amount to “actively inducing” pharmacists to dispense its product. Among other things, it argues that the materials on which the branded manufacturer relies were unlikely to come to the attention of pharmacists and that the reason pharmacists dispense the generic is much more a function of state law than anything the generic manufacturer has said.

Hikma gets strong support on that point from an amicus brief of a large and impressive group of academics – including several of the nation’s leading patent law scholars, as well as noted IP economists and business scholars. They argue that the relevant statute requires affirmative proof of some direct and positive step before holding the generic manufacturer responsible for “actively” inducing the infringement of another. In their view, none of the activities alleged here approach that standard of proof.

The second point that Hikma makes is that upholding liability here essentially would force generic manufacturers to withdraw from the market whenever a pharmaceutical still has important on-patent uses. That outcome, Hikma argues, undermines the provisions of the Hatch-Waxman Act designed to facilitate generic entry. An amicus brief from the government buttresses that argument, suggesting that Amarin’s position is little more than an end-run around the design of the Hatch-Waxman Act.

This is a complex dispute, and the stakes are high – as it well might affect the availability of generics currently routinely dispensed for major conditions. My sense is that the justices will situate this case with their recent cases on secondary liability in the intellectual property context. And those decisions – such as Cox Communications from just a few weeks ago – have tended to be quite forceful in setting a high bar for the imposition of secondary liability. So I would expect a bench that starts off receptive to Hikma’s position.

Background

The Supreme Court last weighed in on the digital Fourth Amendment in 2017. In Carpenter v. United States, the court addressed whether the police had to get a warrant before accessing a certain kind of digital location data, cell-site location information. Cell phones generate CSLI anytime they are on by scanning for the nearest cell tower with strong service. When a cell phone connects to a tower, that tower then records that connection in CSLI logs. A phone’s location can be tracked across time and space by reviewing those logs.

Writing for a 5-4 majority, Chief Justice John Roberts’ Carpenter opinion held that the police must get a warrant before reviewing seven or more days of CSLI for a person’s phone. According to the court, reviewing that amount of location data without a warrant violates a person’s “reasonable expectation of privacy,” which is the legal threshold the court uses to determine whether constitutional protections kick in. The court also enumerated several factors that can be used to measure one’s reasonable expectations of privacy, such as how much the data reveals about a person, the amount of data gathered, and whether the user voluntarily generated the data.

Although Carpenter expanded Fourth Amendment protections for digital location, lower courts have spent the last decade contending with its boundaries.

Enter: geofence data

Among these unsettled questions is whether police need a warrant to access geofence data, another kind of digital location data. Geofence data generally refers to location information collected by cellphone apps. If you have encountered a prompt on your phone that asks you whether you’d like to allow an app to use your location, you’re likely generating the kind of data at issue in Chatrie. Chatrie specifically involved data generated by a Google service called Location History. In Google’s case, this location information was created by combining information from cell towers but also on GPS, Wi-Fi, and Bluetooth signals.

In Carpenter, police sought location information about a particular suspect. But the geofence data in Chatrie is useful in a different situation – when the police have no suspect identified. Police can request information from a private company holding app location data for a list of users at a certain location during a certain timeframe to generate leads.

Specifically, in Chatrie, the police asked Google for a list of all users who had been recorded near a bank for an hour during which the bank was robbed. The police’s interaction with Google involved three key steps. First, they served Google with a warrant for an anonymized list of all phones in a 17.5-acre area around the bank. The remaining two steps took place without any further legal process. The police next asked for location information of a subset of those phones within a two-hour period before and after the original timeframe. Finally, the police asked Google to deanonymize three devices whose movements after the robbery matched other details of the investigation. This deanonymization revealed Chatrie was associated with one of those phones.

This investigative tactic can be extremely useful for the police. It can help them narrow down or identify suspects when they otherwise have none. But it also raises constitutional questions. The central question is whether accessing this kind of digital location record violates the Fourth Amendment. The petitioner raises a number of arguments as to why. Below I explore two of the most central: that accessing this data invades one’s reasonable expectation of privacy and that the police procedure is an unconstitutional general warrant. 

An opportunity to clarify Carpenter

Initially, this case might seem quite similar to Carpenter – both involve digital location information. But Chatrie involves a few critical differences.

First, the Carpenter factors don’t neatly come out the same way. Most prominent is the issue of voluntariness, which matters to Fourth Amendment inquiries because of what is known as the third-party doctrine. As the court has held, when a person voluntarily shares information with a third party, she loses a reasonable expectation of privacy in that information. In Carpenter, the court found that because cell phones automatically connect to towers without any voluntary action on the part of the user, the resulting CLSI falls outside the bounds of the third-party doctrine. But in Chatrie, the situation looks different. The user arguably “opts-in” to app-based location services by clicking yes when prompted and agreeing to the terms of service. Mr. Chatrie disagrees. He counters that this interaction with Google is essentially “consent by adhesion” – that his consent should not practically count given the unequal bargaining power and knowledge between him and Google. As such, he argues that he did not meaningfully voluntarily surrender his location information.

But behind this voluntariness debate is a bigger question: is there something fundamentally private about location data? Let us take the example of tower dumps. Tower dumps work much the same as geofence data, except that the location data is CSLI (which the court has held one does not expressly opt into), not the hybrid location data stored by apps (which one arguably does). Carpenter established that CSLI data is not voluntarily generated. If the court finds in Chatrie that the geofence data was voluntarily generated, geofence data would not require a warrant. But tower dumps would likely require a warrant because of Carpenter, even though tower dumps produce essentially the same information as geofence data. The court’s treatment of voluntariness, then, could determine the constitutional fate of two investigative tactics that, from a privacy standpoint, are difficult to distinguish.

The general warrant question

At issue in Chatrie is another novel constitutional question. Carpenter involved a request for information about one suspect. Chatrie involved, at least initially, no suspect, and a request for information about a location. Chatrie contends that this kind of dragnet request runs afoul of the constitutional prohibition on general warrants, which requires a warrant to “specifically describ[e] the place” to be searched. According to him, without a suspect, the warrant issued to Google was effectively a general warrant, requiring the company to rifle through all of its records and thus failing to describe specifically where the search should be directed. In the alternative, Chatrie argues that even if the warrant is not technically a general warrant, it still had what is called a “particularity” problem, because it did not describe any specific account to be searched.

At first glance, it might seem that Chatrie’s argument is in tension with existing allowable police practices. After all, police can search an area for clues without yet having a suspect. Here, the police request for a list of all phones in an area may seem similar. Chatrie contends, however, that the difference lies in the way Google assembles this data. Google does not look up a location and see which phones were present. Instead, Google searches each user to see which, if any, were present at the location. That is, Google’s “search” is not of a location as much as it is of many individual people.

At stake in this argument is the continued viability of this kind of law enforcement tactic. Law enforcement has increasingly turned to this kind of “reverse” search: specifying a place, a search term, or Chat GPT prompt and requesting a list of implicated users that they can then use as leads. Because these requests do not involve a specific person and typically require companies to search through all records in order to respond, these requests share the same structure as geofence requests. If geofence requests are or are not general warrants, so too might these other requests. Thus, if the court weighs in on this general warrant question, it could implicate a lot more than just location information.

The digital road ahead

Google announced in 2023 that it would no longer store Location History data anywhere but on the user’s phone, meaning the company no longer has access to the data required to respond to police geofence data requests. But where the court lands on voluntariness and general warrants will shape the landscape of the digital Fourth Amendment. The examples discussed above only scratch the surface of unsettled issues – automated license plate readers, pole cameras, government purchases of digital records, and more – which stand to be shaped by this decision. More fundamentally, so too does our notion of constitutional privacy.

What is the Temporary Protected Status program?

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

TPS designations are made for specific periods of time but can be extended when the designation is about to run out. If a decision to extend or terminate TPS status is not published at least 60 days before the designation is set to expire, the designation is supposed to automatically extend for six months.

What is the history behind TPS for Haiti and Syria?

In March 2012, then-Secretary of Homeland Security Janet Napolitano designated Syria for Temporary Protected Status. She cited “deteriorating conditions” in the country – specifically, a “brutal crackdown” by Syrian dictator Bashar al-Assad against anti-government dissenters, which led to the deaths of thousands of Syrians. In the 13 years that followed, DHS repeatedly renewed Syria’s TPS designation. A relatively small number of people – estimated at several thousand – are currently protected by the program.

Nine days after a massive earthquake in 2010 that struck just outside Port-au-Prince, Haiti’s capital, killing more than 300,000 people and causing catastrophic damage, DHS designated Haiti under the TPS program for 18 months – a designation that, as with Syria, was repeatedly extended.

How did the case now before the court start?

Then-DHS Secretary Kristi Noem announced last year that the Trump administration planned to end the TPS designations for both Syria and Haiti. In Syria, she indicated, the new government was attempting to “move the country to a stable institutional governance.” Moreover, she said, it would be “contrary to the national interest” for Syria’s TPS designation to remain in place. And with Haiti, Noem said she had determined that “there are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals … from returning in safety.” Here too, she indicated, “it is contrary to the national interest of the United States to permit Haitian nationals … to remain temporarily in the United States.”

Several Haitian nationals with TPS went to federal court in Washington, D.C., challenging Noem’s efforts to end the program; a group of Syrians who had benefited from the TPS program did the same in New York.

How did the lower courts rule on the challenges?

In both the Haiti and Syria cases, federal judges blocked the government from ending the TPS program. In Washington, U.S. District Judge Ana Reyes issued an order that prohibited the government from ending the TPS program for Haitians. In her view, it was “substantially likely” that Noem had ended the Haitian TPS designation “because of hostility to nonwhite immigrants.” The termination also violated the federal law governing administrative agencies, Reyes concluded, because Noem had failed both to consult with other federal agencies before ending Haiti’s TPS designation and to consider “the billions Haitian TPS holders contribute to the economy.”

The U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s request to put Reyes’ ruling on hold while it appealed. The majority acknowledged the Supreme Court’s orders freezing similar rulings involving TPS designations for Venezuela, but it characterized those cases as “meaningfully distinct” because – unlike Haiti – “the government had invoked ‘complex and ongoing negotiations with Venezuela’” as part of its argument for temporary relief.

In New York City, U.S. District Judge Katherine Polk Failla similarly barred the government from ending the program for Syria. She concluded that the challengers were likely to succeed on their claim that the decision to end the TPS designation for Syria violates the federal law governing administrative agencies. She noted that Noem had tried to end TPS not only for Syrians, but also “for virtually every country that has come up for consideration” – which, she wrote, in light of the different conditions and factors leading to the initial designations, suggested that the decisions to terminate TPS were not appropriate.

The U.S. Court of Appeals for the 2nd Circuit declined to block Failla’s order while the government appealed. It concluded that the government was unlikely to be able to show that Noem had engaged in the kind of inter-agency consultations required before ending the TPS designation.

How has the Supreme Court ruled on other efforts to end TPS?

In May 2025, the Supreme Court blocked a ruling by Senior U.S. District Judge Edward Chen that had temporarily prohibited the government from ending Venezuela’s TPS designation (as well as an extension of that designation). Only Justice Ketanji Brown Jackson dissented from the court’s brief, unsigned order.

The dispute over Venezuela’s TPS designation then returned to the lower court, where on Sept. 5 Chen issued a final decision holding that Noem had acted unlawfully in ending the 2023 designation and its extension. Chen acknowledged that the court had paused his earlier order, but he emphasized in a footnote that the first “order only concerns the preliminary relief ordered by this Court in postponing agency action.” That order did not, he contended, stop him “from adjudicating the case on the merits and entering a final judgment issuing relief.”

The Trump administration returned to the Supreme Court in September after the U.S. Court of Appeals for the 9th Circuit turned down the government’s request to block Chen’s order. Telling the justices that the case involved “the increasingly familiar and untenable phenomenon of lower courts disregarding this Court’s orders on the emergency docket,” U.S. Solicitor General D. John Sauer asked the court to put Chen’s final order on hold.

In a three-paragraph, unsigned order, the Supreme Court once again paused Chen’s order. “Although the posture of the case has changed,” the majority wrote, “the parties’ legal arguments and relative harms have not. The same result that we reached in May is appropriate here.”

Justices Sonia Sotomayor and Elena Kagan indicated that they would have denied the government’s request. Jackson dissented, describing the court’s ruling as “yet another grave misuse of our emergency docket.”

How did the Haiti and Syria cases get to the Supreme Court?

The Trump administration came to the Supreme Court in late February, asking it to pause Failla’s order in the Syrian TPS case. Sauer urged the justices to go ahead and hear oral arguments in the case now, without waiting for the 2nd Circuit to weigh in.

The government returned on March 11, seeking the same relief in the Haiti case. “The issues that” the government’s application in the Haiti case “presents are … common among the numerous challenges to” efforts to terminate the program for a variety of countries, “have been ventilated in litigation across the country, and cry out for immediate resolution,” Sauer contended.

Five days later, the court gave the Trump administration part of what it wanted: the justices agreed to hear oral arguments on whether DHS can end the TPS programs for Haiti and Syria. However, it left Reyes’ and Failla’s orders barring the government from doing so in place until the justices issue a final ruling. 

What are the Trump administration’s arguments?

The Trump administration argues first that courts cannot review DHS’ decision to end the TPS designations for Haiti and Syria. It points to a provision in the law establishing the TPS program indicating that “[t]here is no judicial review of any determination” of the DHS secretary “with respect to the designation, or termination or extension of a designation, of a foreign state.” This means, the government emphasizes, that if a lawsuit – like these – “is directed at a specific TPS designation, termination, or extension,” it “is unreviewable.” 

Even if courts could review claims that DHS violated the federal law governing administrative agencies when it ended the TPS designations for Haiti and Syria, Sauer continues, there is no violation here. Among other things, he writes, Noem did seek and consider advice from the State Department before ending those TPS designations, which is all that the TPS law requires. Moreover, he adds, her decisions in these cases are not undermined by similar conclusions for other countries. To the contrary, he contends, they reflect Noem’s “consistent view that the designations cannot satisfy statutory requirements—not presumptive malfeasance.”

Finally, Sauer argues that Noem’s decision to end TPS for Haiti does not violate the Constitution’s guarantee of equal protection. In Trump v. Hawaii, the 2018 decision in which the justices upheld President Donald Trump’s restrictions on immigration from eight countries, several of which were predominantly Muslim, the court made clear that such restrictions could pass muster as long as the government’s actions “plausibly relate to the Government’s stated objective.” Here, Sauer said, Noem’s decision to terminate Haiti’s TPS designation is “plausibly related to the national-interest and foreign-relations justifications” on which Noem relied.

What are the challengers’ arguments?

The challengers maintain that courts have the power to weigh in on these disputes. Federal law, they stress, only bars review of a “determination” with respect to a TPS designation, extension, or termination – that is, the DHS secretary’s conclusion on the merits about whether the criteria for those actions have been met. By contrast, they say, they are challenging the procedures that Noem used to make her decisions. Even if they prevail, they note, the new DHS secretary, Markwayne Mullin, could still end the TPS designations for Haiti and Syria as long as he complies with the requirements outlined in the TPS statute. If the government’s interpretation were true, they emphasize, it “would insulate flagrantly unlawful executive action from judicial review.”

The decision to end the TPS designations for Haiti and Syria, the challengers continue, violates the federal law governing administrative agencies. As an initial matter, they contend, Noem failed to adequately consult with other agencies before the terminations. In the case of Haiti, the challengers say, “the government has admitted that the only supposed consultation was a three-sentence email exchange between a DHS staffer and a State Department staffer” that was “devoid of substantive analysis.” For Syria, they argue, “it is undisputed that she did not consult with State (or any other agency) about conditions in Syria.” Moreover, they continue, although Noem contended that the “national interest” was at the heart of her decision to end the TPS designations, federal law only allows the DHS secretary to end the designations based on “conditions in the foreign state.”

The Haitian challengers also argue that the decision to end Haiti’s TPS designation violated the Constitution’s guarantee of equal protection because it was “driven by racially animated discriminatory intent. Just months before” Noem ended the TPS designation, they write, “President Trump slandered Haitian TPS holders, accusing them of eating the pets of American citizens, and vowed to end Haiti’s TPS designation.”

The Syrian challengers emphasize that the dispute is still in the preliminary stage, and that allowing the government to end the TPS designations while the litigation continues will result in the “immediate loss of work authorization, and potential detention, family separation, and removal to Syria—a country which remains extremely unsafe.” Such “catastrophic harm … cannot be undone” even if the challengers ultimately prevail, they say.

Who will argue the cases at the court?

Sauer will represent the Trump administration. He will go first and will have 40 minutes to argue. UCLA law professor Ahilan Arulanantham will argue for 20 minutes on behalf of the Syrian nationals, while Geoffrey Pipoly of the law firm Bryan Cave Leighton Paisner will do the same for the Haitian challengers.

When will the court issue its decision?

Because the case will be one of the last regularly scheduled arguments for the 2025-26 term, we almost certainly will not get a decision in the case until shortly before the justices leave for their summer recess – in all likelihood, late June or early July.

Week in Review

The court heard four arguments this week, during the first half of the April sitting. Here are the links to SCOTUSblog’s coverage.

• Sripetch v. Securities and Exchange Commission: Case Preview and Argument Analysis
• T.M. v. University of Maryland Medical System Corp.: Case Preview and Argument Analysis
• Federal Communications Commission v. AT&T, Inc.: Case Preview and Argument Analysis
• Blanche v. Lau: Case Preview and Argument Analysis

And on Wednesday, the court released its opinions in two cases: Enbridge Energy, LP v. Nessel and Hencely v. Fluor Corporation.

• In Enbridge Energy, the court unanimously held that a federal district court did not have the discretion to excuse the late removal of a case from state court to federal court.
• In Hencely, a 6-3 court – with Justices Samuel Alito and Brett Kavanaugh and Chief Justice John Roberts in dissent – held that a state-law tort claim filed by Winston Hencely, who was injured during a suicide bombing carried out by an Afghan employee of a federal contractor, was not preempted by federal law.

At the Court

Today, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from that conference are expected on Monday at 9:30 a.m. EDT.

Also on Monday, the justices will hear argument in Chatrie v. United States, on law enforcement’s use of geofence warrants, and Monsanto Company v. Durnell, on whether the federal law governing pesticide product labels supersedes state labeling requirements.

On Wednesday beginning at 9:30 a.m. EDT, we will be live blogging as the Supreme Court hears argument in Mullin v. Doe, on the Trump administration’s effort to end Syrians’ and Haitians’ participation in the Temporary Protected Status program.

Morning Reads

Most say Supreme Court avoids anti-Trump rulings: Survey

Ashleigh Fields, The Hill

A new survey from Marquette Law School showed that most respondents believe “the Supreme Court is going out of its way to avoid making a ruling that President Trump might refuse to obey,” according to The Hill. Fifty-seven percent of respondents overall held this view, including 79% of Democrats and 66% of independents. “Sixty-seven percent of Republicans disagreed.” The Hill noted that the poll also showed a partisan split in Supreme Court approval ratings. “Seventy percent of Republicans said they approve of the court, compared with 29 percent of independents and 19 percent of Democrats.”

New Marquette Law School Poll national survey finds partisan divides on most Supreme Court cases

Charles Franklin, Marquette University Law School

In its own coverage of its survey, Marquette University Law School highlighted additional partisan divides, including in responses to questions about cases that have been argued but not yet decided. For example, 46% of Republican respondents said the justices should rule that President Donald Trump’s executive order on birthright citizenship is unconstitutional, compared to 91% of Democrats. And 75% of Republican respondents said the court should strike down “a Mississippi law that allows counting of late-arriving absentee ballots so long as they were postmarked by Election Day and arrive within five days of the election,” compared to 19% of Democrats.

11th Circuit shoots down challenge to machine gun ban

Alex Pickett, Courthouse News Service

The U.S. Court of Appeals for the 11th Circuit declined on Tuesday “to overturn the conviction of a Florida man prosecuted for possessing a machine gun conversion device, ruling the longstanding ban on machine guns does not violate the Second Amendment,” according to Courthouse News Service. The 11th Circuit panel’s ruling was unanimous and “cit[ed] the landmark 2008 Supreme Court decision in District of Columbia v. Heller, which found a ban on the possession of handguns unconstitutional but allowed for the prohibition of ‘dangerous and unusual’ firearms ‘not typically possessed by law-abiding citizens for lawful purposes.’” “[M]achine guns are not protected by the Second Amendment as weapons in common use for lawful purposes,” Chief Judge of the 11th Circuit William Pryor wrote.

Tariff Refunds Are Coming. Just (Probably) Not for You.

Olivier Knox, U.S. News & World Report

Earlier this week, the federal government “launched a platform to process refund requests to comply with the Supreme Court ruling in late February that President Donald Trump’s signature tariffs were illegal.” But individual people are not eligible to make such requests, “because reimbursements are limited to ‘importers of record and authorized customs brokers’ – the people who paid the tariffs directly” to the government, according to U.S. News & World Report. “If a business passed that cost on to you in the form of a higher price, you may have paid for the tariff, but you did not pay it to the government.” Some companies, such as Costco, have promised to use tariff refunds to “lower prices,” but not to send customers “a direct cash payout.”

When Justices Stop Being Polite—And Start Getting Real

David Lat, Original Jurisdiction

In a post for his Substack, David Lat reflected on recent controversies involving the Supreme Court, including Justice Sonia Sotomayor’s “somewhat personal” and very public criticism of Justice Brett Kavanaugh during an appearance at the University of Kansas School of Law – a comment for which she has since apologized – and the leak to The New York Times of internal Supreme Court memos. The leaks, Lat wrote, “combined with the justices’ latest comments, paint a somewhat unflattering picture of the Court.” He suggested that the justices might be able to address this “optics problem” by repairing their personal relationships with one another.

On Site

Opinion Analysis

Justices reject certain protections for contractors in war zones

In Hencely v. Fluor Corporation, the court rejected the idea that military contractors have absolute immunity for negligent mistakes they make in an active war zone. “Perhaps the most surprising thing about the decision,” according to Ronald Mann, “is the split among the justices.” The majority opinion was written by Justice Clarence Thomas, and Chief Justice John Roberts and Justice Brett Kavanaugh joined a dissent by Justice Samuel Alito.

Opinion Analysis

Court holds that 30-day deadline for removing cases to federal court is mandatory

When a plaintiff files suit in state court – and a federal district court would have jurisdiction over the case had it been filed there – the defendant has 30 days in which to remove the case to federal court. On Wednesday, the court unanimously held that this 30-day deadline is mandatory, aside from the exceptions expressly set out in the statute addressing the deadline. 

Argument Analysis

Justices debate rights of lawful permanent residents against backdrop of Trump’s immigration crackdown

During approximately 90 minutes of oral argument on Wednesday in Blanche v. Lau, the justices considered a challenge to how immigration officers classify lawful permanent residents who have been accused but not yet convicted of committing a crime that puts them at risk of being removed from the country.

Case Preview

Justices to hear dispute over cancer warnings on pesticide labels

On Monday, the court will hear argument in a case that thrusts the justices into a battle involving over 100,000 lawsuits, “billions and billions” of dollars, the international scientific community, federal and state policymakers, and, if you ask Monsanto, the very future of U.S. agriculture and innovation.

Relist Watch

Seven relists walk into a bar

In his Relist Watch column, John Elwood revisited seven cases that have recently been “trimmed ... from the relist rolls,” including a religious freedom battle centered on Colorado’s universal preschool program that has been added to the 2026-27 oral argument docket. He also offered an overview of seven newly relisted cases, including a dispute between the NFL and one of its highest-profile Black coaches.

Podcasts

Advisory Opinions

Overturning Religious Precedent

Sarah Isgur and David French are live at the University of Denver answering questions on the case of a Catholic preschool challenging its exclusion from Colorado’s universal preschool program, the Supreme Court’s popularity, and whether Sen. Ted Cruz would make a great justice.

Amarica's Constitution

Popes and Presidents

Akhil Amar and Andy Lipka reflect on the relationship between church and state – and popes and presidents – in a democracy and continue their discussion with Sarah Isgur on her new book, Last Branch Standing.

A Closer Look:

Chief Justice Warren Burger

Chief Justice Warren Burger may be most famous for helping to end Richard Nixon’s presidency. In 1974, he wrote the unanimous opinion in United States v. Nixon, requiring Nixon to surrender the White House tapes – roughly 3,700 hours of secret audio recordings captured in the Oval Office and four other locations between 1971 and 1973 – to prosecutors (rejecting Nixon’s claim of executive privilege). Nixon resigned 16 days later; as part of this release, he had been compelled to produce the “smoking gun” tape that revealed he had ordered the CIA to impede the FBI’s Watergate investigation. It was, as former Burger clerk John Sexton said, the chief’s “signature moment.” But Burger’s mark on the court went well beyond the Watergate tapes, even if he was not always particularly well-liked or respected by his fellow justices.

The 15th chief justice was born in 1907 in St. Paul, Minnesota to a working-class family. To get through night school at the University of Minnesota, Burger sold insurance. The future chief justice graduated magna cum laude in 1931 from St. Paul College of Law (today, Mitchell Hamline School of Law), joined a Saint Paul law firm, and threw himself into Minnesota Republican politics. His most consequential political act (at least up until that point) came at the 1952 GOP convention, where he helped deliver the state’s votes to Dwight Eisenhower. The following year, he was appointed by Ike as assistant attorney general and, in 1955, to a seat on the U.S. Court of Appeals for the D.C. Circuit. Over a decade of conservative “law-and-order” judging later, Nixon nominated him on May 21, 1969, to replace the retiring Chief Justice Earl Warren. The Senate confirmed him 74-3. (It might be worth noting that yes, the new chief justice shared both a first and a middle name with his predecessor.)

Although Nixon may have expected Burger to serve as a “conservative constructionist,” the chief justice proved a bit more complicated. As some note, the Burger court did move the nation to the right (as compared to the Warren court) – but it also expanded protections for privacy, sex equality, and due process. Burger himself voted with the majority in Roe v. Wade in 1973 (indeed, three of Nixon’s four appointees joined the 7-2 ruling). The same year, Burger authored Miller v. California, which modified the court’s test for obscenity. The Burger court also issued a unanimous opinion supporting busing to desegregate schools, along with Lemon v. Kurtzman, which established a (subsequently much-criticized) test to determine if the establishment clause had been violated based on “excessive governmental entanglement with religion.” None of this improved Burger’s standing among his colleagues, who could find him “manipulative and aloof,” potentially miscounting his own conference votes to control opinion assignments. He has also been criticized for a lack of any discernible judicial philosophy.

Nevertheless, Justice Sandra Day O’Connor singled Burger out alongside William Howard Taft as one of the chief justices who “really deeply cared about judicial administration.” As Burger’s administrative assistant Mark Cannon recalled, “[t]he chief justice came to the court with lifelong desires to make everything work better. He was never content with the way things were if he thought there was a better way.” This led to some significant changes under his tenure – among other things, Burger discouraged justices from reading their full opinions or “lengthy summaries” aloud from the bench (estimating the practice wasted 300 hours of their time each year), cut the time allotted for oral arguments in half (from two hours to one), changed the physical bench to a U-shape (which reduced interruptions during oral argument), and began distributing written opinion summaries alongside decisions.

Burger retired in 1986, after 17 years on the court, to chair the Commission on the Bicentennial of the United States Constitution, which took up so much of his time that his wife reportedly asked whether he could simply get his old job back. He died on June 25, 1995, at 87, of heart failure, and is buried at Arlington National Cemetery. His professional papers are not yet available – with a release date of 2033. Per some scholars, the 1,200 cubic feet of papers could give us further insight into “Burger’s legacy and public reputation” and that of a court often “described as playing a transitional role between the liberal Warren Court and the conservative Rehnquist Court.”

SCOTUS Quote

“Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.”

— Justice Joseph McKenna in Weems v. United States  (1910)

The challenge was brought by Muk Choi Lau, a Chinese national who became a lawful permanent resident of the United States in September 2007. Just under five years later, in May 2012, Lau was arrested and charged in New Jersey for allegedly selling nearly $300,000 worth of counterfeit Coogi shorts. Shortly after, he briefly left the U.S., returning in June 2012. 

Typically, when lawful permanent residents, also known as green card holders, return to the U.S. after a short international trip, they are granted admission, meaning they are free to enter the country and stay indefinitely. The Immigration and Nationality Act states that their admission will only be in question under a limited set of circumstances, including when they have “committed” “a crime involving moral turpitude” – that is, a dishonest or immoral act, such as fraud or theft.

Immigration officers determined that Lau’s pending counterfeiting charge triggered that exception. And so, rather than being admitted, Lau was paroled, which enabled him to enter the country only temporarily “to face prosecution for his counterfeiting offense.” In June 2013, Lau pleaded guilty to trademark counterfeiting.

Because Lau had been paroled, the Department of Homeland Security was able to pursue Lau’s removal on the ground that he was ineligible for admission. If Lau had instead been admitted into the country in June 2012, DHS would have had to pursue deportation on the ground that he had been “convicted of a crime involving moral turpitude committed within five years” of his date of admission into the U.S. Among other differences, the burden of proof for the government is higher in deportation proceedings. 

During his removal proceedings, Lau contended that he had been “improperly classified” by the immigration officers who paroled him. An immigration judge and the Board of Immigration Appeals rejected that argument, but the U.S. Court of Appeals for the 2nd Circuit sided with Lau, holding that immigration officers must have “clear and convincing evidence” that a lawful permanent resident has actually committed a disqualifying crime – not just been charged with one – to deny him admission.

In January, the Supreme Court agreed to review that ruling and resolve a disagreement between the federal courts of appeals over under what circumstances immigration officers can deny admission to lawful permanent residents.

Sopan Joshi, an assistant to the U.S. solicitor general who argued on behalf of the federal government, noted on Wednesday that the “clear and convincing evidence” standard does not come from the text of the INA. Instead, it comes from a Board of Immigration Appeals decision addressing removal proceedings, and the BIA has “never” applied that standard at the border, Joshi said.

When pressed by Justice Ketanji Brown Jackson to explain what standard does apply at the border, Joshi contended that “the INA doesn’t speak directly to this issue or impose any kind of burden.” In the absence of clear guidance, he continued, “the standard would be the same standard that is longstanding and traditional in immigration law ... which is, when the sovereign controls who enters the country at the border, it’s the person arriving [who] has to establish to the satisfaction of the officer that they’re entitled to be let in.”

Justice Samuel Alito expressed surprise at this response, saying, “Well, Mr. Joshi, ... you’re swinging for the fences here.” Alito noted that the immigration officers speaking with Lau were aware that Lau had been “charged with a criminal offense.” That’s different, Alito implied, than if the officers had just thought Lau “look[ed] very shifty.” Joshi said the government could “certainly try and live with” needing to meet a higher evidentiary standard – such as probable cause – but emphasized that what matters for the purposes of abiding by the INA is the evidence the government presents to an immigration judge, not the evidence it has when a parole decision is made.

Shay Dvoretzky, who argued on behalf of Lau, questioned the government’s focus on “the requisite level of proof” during an interaction at the border, asserting that the debate between satisfaction, probable cause, and clear and convincing evidence was not the focus of the briefing. Instead, he continued, the case is focused on when the government most have clear and convincing evidence. “Even putting aside gamesmanship, the court shouldn’t decide the burden question without full briefing and a lower court decision,” Dvoretzky said. “The court thus should affirm on timing alone” or dismiss the case as improvidently granted.

As for timing, Dvoretzky went on to argue that immigration officers need clear and convincing evidence that the lawful permanent resident has committed a disqualifying crime at the time when they deny admission, explaining that this evidentiary standard can be met with a conviction or confession. Several justices questioned why the court should apply that standard at that time. For example, Justice Amy Coney Barrett noted that the section of the INA that addresses under what circumstances lawful permanent residents can be denied admission does not say “‘conviction.’ It says ‘committed.’” She also observed that holding immigration officers to the “clear and convincing evidence” standard might incentivize them to detain lawful permanent residents at the border to give themselves more time to “pony up evidence.”

Another consequence of imposing that standard, drawn out by Alito and Chief Justice John Roberts, is that immigration officers may not be able to deny admission to a lawful permanent resident even after, for example, receiving “an urgent message from the French police” that the individual had shot someone in France “just before he got on the plane.” “It just seems to me to be pretty bizarre to say that in that situation they couldn’t even be detained,” Roberts said. Dvoretzky responded that, under those circumstances, what might matter is grounds for arrest and extradition, not how to interpret immigration law.

Although President Donald Trump’s name was not uttered during the argument, his administration’s efforts to limit immigration and increase deportations seemed to loom large for at least Jackson and Justice Sonia Sotomayor. They raised concerns about letting immigration officers decide “willy-nilly” to refuse admission to people with green cards. “[Y]ou could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration,” Jackson said.

Joshi asserted that it’s not in the best interest of the DHS to unnecessarily parole lawful permanent residents and urged the justices not to “interpret the INA on the assumption that the entire executive branch is operating in bad faith.” Dvoretzky, on the other hand, echoed Jackson’s concern. “I think it is a very real risk that if the court rules in favor of the government in this case and gives the government that power that the power may be used for all it’s worth,” he said.

Alito pushed back against Dvoretzky, asking whether his argument depends on the court’s “acceptance of this conspiracy theory.” The justice again emphasized that, in Lau’s case, immigration officers based their parole decision not on mere suspicion but on a criminal charge in New Jersey. “I guess the State of New Jersey is in on this conspiracy?,” Alito asked.

Based on Wednesday’s debate, it seems possible that the court will split along ideological lines, with the six Republican-appointed justices siding with the government. The court’s decision is expected by early July.

The case arises from a 2016 suicide bombing at Bagram Airfield, then a U.S. military base in Afghanistan. The bombing was perpetrated by a former Taliban member working as an on-base employee of the defendant Fluor, a military contractor, and the suit reflects the view of the survivors that Fluor’s failure to follow the military’s rules about keeping track of its native employees made it responsible for the attack. As my post about the argument explained, the oral argument suggested general skepticism about the idea that Fluor’s status as a military contractor protected it from liability. What we now know is that it does not.

Thomas starts from the premise that the statement in the supremacy clause of the Constitution that federal law is “the supreme Law of the Land” means that “the state law must yield” whenever federal law contradicts state law. Granting that, he emphasizes that state law is not preempted “in vacuo, without a constitutional text or a federal statute.” Under that reasoning, the lack of preemption here is self-evident to Thomas: “No constitutional provision says [Hencely’s state law tort suit] is preempted … Nor does any federal statute preempt this suit.”

Thomas first considers the lower court’s conclusion that the contractor’s immunity can be derived from a 1988 Supreme Court case called Boyle v. United Technologies Corp. Boyle involved a suit against a contractor seeking to hold the contractor liable under state law for defective design even if it built a military helicopter as its contract with the government required. Thomas states that Boyle recognized “a defense because ‘the government [] directed the contractor to do the very thing that is the subject of the claim.’” In contrast, the conduct here “was not authorized by, but was even contrary to, federal instructions,” as military officials found that it “failed in its contractual obligations.” In summary, “[e]ven granting that there is a ‘uniquely federal interest’ in the regulation of military bases overseas, there would be no ‘significant conflict’ between that interest and state-law negligence liability premised on a contractor’s departure from military instructions.”

Thomas then turns to the contractor’s principal argument before the court, that “the Constitution’s structure [granting war powers to the federal government] implicitly preempts any suit against a military contractor operating in a combat zone.” For Thomas (and the majority), there is “no basis in the text of the Constitution or our precedent” for such a ruling. He acknowledges that the federal government “has ‘broad and sweeping’ war powers,” but sees no reason why that means that courts must “reject any tort claim connected to a war zone.” On the contrary, Thomas points to a variety of examples of “war-related tort suits” dating back to the conflict with France under President John Adams. The protections for contractors in those cases include rules against “‘directly regulat[ing] or discriminat[ing]’ against federal officers and agencies,” as opposed to “those who contract to furnish supplies or render services to the government.” When it comes to the contractors, though, the only defense Thomas sees is “when the contractor is being sued precisely for accomplishing what the Federal Government requested.” But that is not the case here.

Perhaps the most surprising thing about the decision is the split among the justices, as the dissent is by Justice Samuel Alito. Joined by Chief Justice John Roberts and Brett Kavanaugh, Alito took the position that since the Constitution “expressly excludes the states from” making war and conducting combat operations, “no state law, including state tort law, may intrude on [that].” Ordinarily, Alito and Thomas are closely aligned – voting together in more than 95% of merits cases last year. Indeed, this appears to be the first fully argued case this term in which the two have disagreed.

Given the ultimate outcome was not particularly surprising and is in line with the court’s prior precedent on sovereign immunity, I doubt that this case will make big waves.

* * *

The underlying dispute in Enbridge (as discussed in the case preview) concerns whether the state of Michigan can force Enbridge to shut down its “Line 5,” a pair of oil and natural-gas-liquids pipelines that run beneath the Straits of Mackinac. Because Line 5 supplies a substantial portion of the crude oil and propane consumed in Michigan, Ohio, Ontario, and Quebec, the economic and political stakes in that dispute are substantial. But that backdrop was immaterial to the question before the justices, which only concerned whether the case belonged in state or federal court.

In June 2019, Michigan Attorney General Dana Nessel sued Enbridge in Michigan state court. She asserted several state-law claims and sought an order requiring Enbridge to close Line 5. In December 2021 – following a series of events in a related case – Enbridge filed a notice of removal under Section 1446(b)(1), seeking to have the case heard in federal court. The district court held that, despite Enbridge’s filing its notice 857 days after the 30-day deadline had expired, the removal was timely. The district court reasoned that the 30-day deadline was subject to equitable tolling, and that such tolling was warranted here given the case’s “exceptional circumstances” – namely, the importance of the federal issues and the possibility of a “collision course” between this case and another (filed by Enbridge) that was already pending in federal court. On appeal, the U.S. Court of Appeals for the 6th Circuit reversed, concluding that the 30-day limit is not subject to equitable tolling.

In its unanimous, 14-page opinion, the Supreme Court agreed with the 6th Circuit, holding that the case must be remanded to state court. According to the court, no matter a case’s particular circumstances, Congress has deprived district courts of the discretion to extend Section 1146(b)(1)’s 30-day deadline based on equitable considerations.

Much of the briefing and oral argument addressed whether Section 1146(b)(1) constitutes a “statute of limitations,” such that (under well-established precedent) it is subject to a presumption in favor of equitable tolling. But the court brushed that question aside, reasoning that “even if §1446(b)(1) is a statute of limitations … the presumption is rebutted here because such tolling conflicts with §1446(b)(1)’s text, structure, and context.”

Sotomayor’s opinion for the court made three basic points. First, Section 1446(b)(1) “speaks in strict, mandatory terms.” It states that the “notice of removal … shall be filed within 30 days after the receipt” by the defendant of the complaint or summons. According to Sotomayor, while this “strict phrasing” is not necessarily determinative, it is “consistent with treating its deadline as mandatory.”

Second – and “most important” to the court – the structure of Section 1446(b)(1) “strongly indicates” that Congress did not intend to grant district courts the power to adorn the statute with “unmentioned, open-ended, ‘equitable’ exceptions.” Section 1446(b) already spells out several exceptions to its 30-day deadline in its text. For instance, Section 1446(b)(3) provides that when a case is not initially removable, the deadline for removal is 30 days from when the defendant receives “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Section 1446(c)(1) then states that, despite this extension, a case that is removable based on diversity jurisdiction cannot be removed “more than 1 year after commencement of the action.” Further, this one-year limit on Section 1446(b)(3)’s exception does not apply when “the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action” – an exception that is clearly grounded in equitable considerations.

To the court, this detailed structure of exceptions – along with others in Section 1441(b) (“[f]or actions against foreign states”), Section 1454(b)(2) (“for actions involving certain intellectual-property rights”), and Section 1441(e)(1) (“[f]or certain cases involving fatal accidents”) – shows that “Congress did not want equitable tolling under §1446(b)(1).” The explicit inclusion of such a specific list – including exceptions that take equitable concerns into account – demonstrates that Congress expressly considered and spelled out when the 30-day deadline should be extended, and allowing district courts the open-ended discretion to extend the deadline under other circumstances would thus contravene the scheme’s intended operation.

Third and finally, Sotomayor emphasized that a principal goal of federal removal statutes is to achieve “efficiency” and avoid “prolonged litigation on threshold nonmerits questions.” Subjecting Section 1446(b)(1)’s 30-day deadline to equitable tolling would undermine this “manifest interest in resolving threshold removal questions early and conclusively.” In cases like Enbridge, uncertainty as to whether the dispute might be moved to federal court (and start largely anew) could hang over the litigation for years.

* * *

Given the political controversy concerning the potential closure of Line 5, Enbridge came to the court with considerable fanfare. But it left with a whimper. As to the case itself, Enbridge and the Michigan attorney general are now left to renew their battle in Michigan state court. As to the broader legal question – whatever the circumstances of a particular case – Section 1446(b)(1) means what it appears to say: outside the statute’s explicit exceptions, a defendant’s notice of removal “shall be filed within 30 days,” full stop.

Since our last post, the Supreme Court has been busy pruning the relist garden. In one form or another, the court trimmed seven cases from the relist rolls.

First, the marquee stuff: The justices granted review in one-time relist St. Mary Catholic Parish v. Roy, a challenge to Colorado’s universal preschool program – but only on questions involving the application of existing law to this program, leaving for another day the petitioners’ invitation to reconsider Employment Division v. Smith (the court’s landmark holding that government actions generally do not violate the free exercise clause so long as they are neutral and apply to everyone). That said, you can expect the court’s resolution of those issues to affect the strength of Employment Division going forward. And in five-time relist Beaird v. United States, an in forma pauperis Second Amendment firearms case, the court granted review limited to the question whether after Kisor v. Wilkie (which somewhat curtailed deference to agencies’ interpretations of their own regulations) courts should defer to U.S. Sentencing Guidelines commentary even if the underlying guideline is unambiguous. That means that nine-time relist Poore v. United States – the paid petition by frequent filer Neal Katyal presenting the same issue – presumably awaits life as a hold. I’m just glad the court will be resolving the issue four-and-a-half years after I filed a petition on precisely this issue.

The court also summarily reversed in nine-time relist District of Columbia v. R.W., upholding the constitutionality of a police traffic stop and reminding lower courts once again in a per curiam opinion that Fourth Amendment reasonable-suspicion analysis requires looking at the whole picture, not snipping out facts for one reason or another. Justice Sonia Sotomayor noted that she would have denied review, while Justice Ketanji Brown Jackson dissented from the summary reversal, accusing the court of “wordsmith[ing] a lower court” over a highly factbound dispute.

The court granted, vacated, and remanded in Smith v. Scott, a qualified-immunity case involving officers’ use of bodyweight pressure to restrain a suspect which had been relisted a remarkable 17 times. Clearly, this is a case that launched a few memoranda. The court GVR’d for further consideration in light of the month-old summary reversal in Zorn v. Linton, another case involving mild (but unpleasant) physical force by police.

On the unhappy side of the ledger for petitioners, the court turned away three-time relist Castro v. Guevara, a Hague Convention case concerning the standard of reviewing determinations a child was “well settled” and thus shouldn’t be returned, with Sotomayor writing separately to say that the court should eventually resolve the circuit split over whether such findings are reviewed de novo or for clear error. Lastly, the court flatly denied review in Foote v. Ludlow School Committee, a case challenging a school’s gender transition policy, without noted dissent after 12 relists. For a case that spent five months in relist purgatory, that is an awfully quiet exit.

Onto new business. There are just 99 petitions and applications on the docket for this week’s conference, and seven of them have been relisted for the first time. So this week at least, the court is operating on a one-in one-out policy, just like my guitar collection supposedly is.

Article III review versus administrative adjudication for farm work

The H–2A visa program grants U.S. employers the privilege of “import[ing]” foreign workers into the United States for temporary agricultural work under special visas. As a condition of granting petitions to import foreign workers, federal law requires an employer to agree to comply with statutory and regulatory requirements governing workers’ living and working conditions. Congress has authorized the Secretary of Labor to impose monetary remedies to assure employer compliance with those “terms and conditions.”

In Department of Labor v. Sun Valley Orchards, LLC, the solicitor general asks the Supreme Court to resolve whether Article III bars the Department of Labor from using its own administrative process to impose civil penalties and back wages on employers accused of violating the H-2A program’s employment conditions. The case comes out of a 2015 investigation of a New Jersey farm that used H-2A workers and, according to DOL, essentially cheated its workers. An ALJ and then DOL’s administrative review board upheld roughly $211,800 in civil penalties and $344,945.80 in back wages. The district court sustained the scheme, reasoning that immigration involved matters of “public rights” that could be adjudicated in administrative tribunals. The U.S. Court of Appeals for the 3rd Circuit reversed, holding that after SEC v. Jarkesy the case had to be heard in an Article III court because DOL was effectively pursuing common-law-type claims for civil penalties and back wages, rooted in what the court described as a contractual job order, and because the particular disputes here (involving housing, meals, transportation, and wages) were employment-law questions too far removed from the historical immigration cases involving admission and exclusion of aliens.

The government’s pitch is that this is a straightforward public-rights case twice over: immigration is a paradigmatic public right, and participation in the H-2A program is a government-conferred benefit, so Congress can let DOL police the terms of that benefit through administrative adjudication, just as agencies historically could impose monetary exactions in immigration and customs matters. Sun Valley responds that the government is trying to smuggle ordinary wage-and-hour and contract disputes into the immigration exception by pointing out that some of the workers held visas, and on its telling the DOL seeks money for working conditions on a farm (for both H-2A and corresponding domestic workers). This seems like a pretty strong candidate for review. Both parties agree there is no need to hold this case for FCC v. AT&T, which involves a different administrative-penalty scheme and turned at argument on whether later proceedings cure any constitutional problem. Because Sun Valley lacks that same back-end structure, AT&T may not present much of a speed bump to review here.

Arbitrating pro football disputes

In New York Football Giants v. Flores, the NFL and three of its member clubs petition for certiorari from a decision of the U.S. Court of Appeals for the 2nd Circuit holding that the arbitration provision in the NFL Constitution is unenforceable under the Federal Arbitration Act. The case began when Brian Flores, a veteran NFL coach, filed a putative class action in 2022 alleging systematic racial discrimination in NFL hiring under 42 U.S.C. § 1981. When the NFL moved to compel arbitration under the NFL Constitution – which designates the league commissioner as the default arbitrator for disputes between clubs and their employees – the 2nd Circuit held, on a ground Flores had never raised in either court below, that the provision amounts to “arbitration in name only” and falls entirely outside the FAA’s protections, because it vests arbitral authority in the NFL’s own chief executive and leaves procedures for him to develop.

The Giants’ petition argues that parties are entitled to choose their arbitrator and procedures, sports leagues have long used commissioner arbitration, and the 2nd Circuit has effectively invented a free-floating federal unconscionability doctrine under which judges may invalidate arbitration clauses they find insufficiently fair. And they allege a circuit split.

Flores responds that the case is far narrower than the NFL says: no circuit has approved forcing statutory employment-discrimination claims into a forum controlled by the employer’s own chief executive, and the decision below merely recognizes that “arbitration” does not ordinarily mean asking one side’s boss to decide whether his own side discriminated. The Atlantic Legal Foundation and Washington Legal Foundation filed a joint amicus brief supporting the NFL.

The court that gave us Epic Systems v. Lewis and AT&T Mobility LLC v. Concepcion will likely be sympathetic to the NFL’s framing of this as judicial hostility to agreed-upon arbitration procedures, but it remains to be seen whether the justices will view pro-sports arbitration as among the 60 most important cases of the year.

Florida sues California . . . again

We have another original action filed directly in the Supreme Court presenting a dispute between states. Based on recent filings, the case appears to be the product of the newly established Florida Department of Lawsuits Against California. In Florida v. California and Franchise Tax Board of California, the Sunshine State seeks leave to file an original bill of complaint challenging a California regulation that excludes certain “substantial” receipts from “occasional” asset sales from the state’s single-sales-factor apportionment formula – while still taxing the resulting gain as business income. Putting the formula-laden footnotes (check out footnotes 13 and 14!) and jargon to the side, Florida says that tax formula systematically over-apportions income to California for companies with payroll and property elsewhere, effectively penalizing firms that leave California and choose to move to places like Florida. On Florida’s telling, that not only injures affected corporations, but also deprives Florida itself of tax and investment revenue and harms its citizens and businesses, in violation of the commerce clause, the import-export clause, and the due process clause. In a brief likely prepared by the California Department of Being Sued by Other States, California responds that this is not a real sovereign-vs.-sovereign quarrel so much as Florida volunteering to litigate the tax grievances of private corporations; that affected taxpayers already have ordinary administrative and judicial avenues to challenge the rule; and that Florida’s merits theory rests on abstractions rather than the sort of taxpayer-specific record state-tax cases usually require.

This is plainly more credible than the recent wave of original-jurisdiction audition tapes built around immigration, elections, marijuana, or vibes. Florida has identified an actual tax rule, actual taxpayer proceedings applying it, and an actual doctrinal framework for attack. A number of credible amici also support Florida, including the Chamber of Commerce and the American College of Tax Counsel. Even so, this may look like the sort of case the justices will regard as better suited to ordinary taxpayer litigation than to the Supreme Court’s already unloved original docket. The only real suspense is whether Justice Clarence Thomas or Justice Samuel Alito write separately to remind everyone that in their view the court is not supposed to treat “original jurisdiction” as optional.

Commenting on a defendant’s failure to testify

The court is also considering a pair of capital cases from Alabama – Alabama v. Sykes and Alabama v. Powell – that present the same issues. In Sykes, Brandon Sykes was convicted of capital murder and sentenced to death for killing his ex-wife Keshia. In the prosecutor’s rebuttal statement, he said, “[t]here’s only two people in the world that know what happened in that house. One of them’s dead, and the other one is sitting right there at the end of that table.” In Powell, Michael Powell was convicted of capital murder and sentenced to death for shooting gas-station clerk Tracy Algar during a robbery. After defense counsel noted the prosecution’s failure to produce the murder weapon, the prosecutor replied in rebuttal that “there is only one person in this room who knows where the gun is. One person, he is sitting over there.”

In both cases, the Alabama Court of Criminal Appeals reversed the convictions. In Sykes, that court held that the “only two people” remark was an impermissible comment on the defendant’s failure to testify under 1965’s Griffin v. California. Alabama argues that the court effectively treated the remark as requiring reversal without giving sufficient weight to context, prejudice, or plain-error principles. Sykes contends that the court did engage in contextual analysis under Alabama law and simply found the error sufficiently serious to warrant reversal. The Powell opinion likewise held that the prosecutor’s “one person in this room” remark was an improper comment on silence. Alabama says that court treated the error too mechanically and without the harmless-error analysis required by the Supreme Court’s cases. Powell argues that the state court permissibly applied Alabama’s own constitutional and statutory protections as well.

Alabama’s petitions present two questions: first, whether Griffin error requires automatic reversal without contextual analysis or a finding of prejudice; and second, whether Griffin should be overruled altogether. On the first question, Alabama argues that the decisions below are inconsistent with the 1988 case of United States v. Robinson, where the court held that “prosecutorial comment must be examined in context,” and the 1983 case of United States v. Hasting, which rejected a per se rule of reversal for Griffin errors. Sykes and Powell respond that Alabama’s lower courts actually did engage in a contextual analysis, applying Alabama’s longstanding framework for evaluating prosecutorial comments, and that the results were correct on the facts. On overruling Griffin, Alabama marshals critiques from Thomas and Justice Antonin Scalia describing the decision as lacking any basis in the Fifth Amendment’s text or history. Powell and Sykes responds that the decision was also required by the Alabama constitution, placing the error beyond the Supreme Court’s review.

A pro-life club’s flyer fight

E.D. ex rel. Duell v. Noblesville School District asks whether a public high school may treat a student club’s meeting flyer as effectively the school’s own speech and then sanitize it accordingly. E.D., a Noblesville High freshman, started Noblesville Students for Life, which the school initially approved as a “student-driven and student-led” student-interest club. She was allowed to promote the club at the activities fair with pro-life signs and a shirt reading “I Am the Pro-Life generation.” The trouble began when she sought to post flyers for the club’s first meeting in school hallways. The proposed flyers used Students for Life of America templates and included photos of students holding signs such as “Defund Planned Parenthood.” School officials told her the flyers could include only the club name and the meeting’s date, time, and location, not the pictures or political messaging; after a further meeting involving E.D. and her mother, Principal Craig McCaffrey temporarily revoked the club’s recognition (on the grounds that the parent’s presence suggested it was not actually “student-led”), later allowing it to reapply and return the next semester.

The U.S. Court of Appeals for the 7th Circuit held that Hazelwood School District v. Kuhlmeier (dealing with a school’s ability to “maintain editorial control over the content of a high school student newspaper that was school-sponsored, supported, and supervised”), not Tinker v. Des Moines Independent Community School District (which deals with whether a “substantial disruption” was caused by the student’s activities), governed because the flyers would have been posted on school walls, in common areas, with administrator approval, and thus could reasonably be seen as bearing the school’s imprimatur; it then upheld the school’s restriction as reasonably related to pedagogical concerns, especially maintaining neutrality on political controversies.

E.D.’s cert petition says the 7th Circuit deepened a 3-1-2 split over when Hazelwood applies: the petition places the U.S. Court of Appeals for the 5th, 10th, and now 7th Circuits in a broad “imprimatur” camp based on a “reasonable observer” standard; the 3rd Circuit’s in-between camp that applies the test to student speech that occurs in an “organized and structured educational activity” camp; and the 6th and 11th Circuits when the student speech is part of the “curriculum.” As always seems to be the case when Alliance Defending Freedom files a petition, there are scads of amicus briefs – 11 of them, including one filed by Kansas and 14 other states. The Noblesville School District answers that there is no real circuit split at all, because the other circuits also apply Hazelwood flexibly and because petitioners did not present their anti-Hazelwood theory below in the form they now press, and they say the outcome would be the same even under the petitioners’ preferred cases.

This case’s allure is obvious: a plausible circuit split about student speech. But it remains to be seen whether the justices think the case involves too many messy questions about unwritten school practices, the principal’s separate rationale that the club was no longer truly student-led, and indications that the school did allow considerable pro-life expression outside the hallway-flyer context.

Cold Cell, Hot Issue

Antonio Smith was an inmate at Green Bay Correctional Institution in Wisconsin who had been on a hunger strike for 45 days to protest prison conditions. Because Smith had refused a correctional officer’s order to exit his cell for a daily wellness check, for three days, officers entered Smith’s cell, assisted him into a wheelchair, and transported him to the prison’s health unit for a medical examination. But on the fourth day, apparently frustrated by Smith’s intransigence, Captain Jay Van Lanen resorted to pepper spray to force Smith out of the cell, despite knowing Smith had a medical contraindication to the spray (asthma). That triggered an asthma attack that left Smith struggling to breathe. Smith was then forced to strip naked and was placed in a “control cell” – designed for disruptive inmates – still naked. The cell had a vent blowing air from outside at temperatures that dropped as low as 25 degrees Fahrenheit. Smith asked Lieutenant Timothy Retzlaff for clothing, bedding, a mattress, or a transfer to a warmer cell. Retzlaff said he would check with Van Lanen and never returned. Smith remained naked in the frigid cell for 23 hours, unable to sleep, spending most of the time on his feet. Smith filed suit pro se, but the U.S. Court of Appeals for the 7th Circuit appointed pro bono counsel.

A panel of the 7th Circuit unanimously held that the evidence would support a finding that Van Lanen and Retzlaff were deliberately indifferent to Smith’s exposure to extreme cold in violation of the Eighth Amendment. But the panel majority nevertheless granted qualified immunity, concluding that it could locate no case that “squarely governs” the officers’ conduct, because the 7th Circuit had never held it unconstitutional “to house an inmate in a cell that ranged in temperature from 25 to 57 degrees over a 23-hour period without clothes or a way to keep warm.” Judge David Hamilton dissented vigorously, reasoning that deliberately “refrigerat[ing] a naked human being for hours” was obviously unconstitutional even without a case on all fours.

In Smith v. Kind, Antonio Smith argues the 7th Circuit has done exactly what the court’s decisions in Hope v. Pelzer and Taylor v. Riojas forbid: demand nearly identical precedent before treating an obvious constitutional violation as clearly established. Wisconsin’s brief in opposition responds that this is not one of those “obvious” cases at all, stressing both the temporary nature of the confinement and the officers’ claimed offers of a shower and a smock (on the condition that Smith cooperate with his health assessments), and portraying the case as a factbound dispute over qualified immunity with no real circuit conflict. Amicus briefs from the Constitutional Accountability Center and Cato Institute both use the case as a vehicle to criticize qualified immunity doctrine generally. My guess is that the case has a colorable chance on the “outrage docket,” blunted somewhat by some factual questions and the panel’s holding that the treatment alleged is unconstitutional going forward, which the justices may feel blunts the need for review since the dispute is now about backward-looking damages.

That’s all for this week. Tune in Monday to see whether these turn into grants or spend another week on the relist wheel.

New Relists

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

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

(Relisted after the Apr. 17 conference.)

New York Football Giants v. Flores, 25-790

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

(Relisted after the Apr. 17 conference.)

Alabama v. Sykes, 25-847

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

(Relisted after the Apr. 17 conference.)

Alabama v. Powell, 25-848

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

(Relisted after the Apr. 17 conference.)

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

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

(Relisted after the Apr. 17 conference.)

Smith v. Kind, 25-943

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

(Relisted after the Apr. 17 conference.)

Department of Labor v. Sun Valley Orchards, LLC, 25-966

Issue: Whether Article III of the Constitution precludes Congress from assigning to the Secretary of Labor the initial adjudication of proceedings to collect monetary remedies from employers who violate the terms and conditions of participating in the H–2A visa program.

(Relisted after the Apr. 17 conference.)

Returning Relists

Fields v. Plappert, 23-6912

Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)’s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.

(Relisted after the Dec. 5, Dec. 12, and Jan. 9 conferences; now being held for consideration of response to Fields’ rehearing petition.)

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

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

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

Duncan v. Bonta, 25-198

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

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

Viramontes v. Cook County, 25-238

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

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

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

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

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

Grant v. Higgins, 25-566

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

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

Reinink v. Hart, 25-179

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

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

Whitton v. Dixon, 25-580

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

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

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

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

(Relisted after the Mar. 20, Mar. 27, Apr. 2, and Apr. 17 conferences.)

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

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

(Relisted after the Mar. 20, Mar. 27, Apr. 2, and Apr. 17 conferences.)

But we’ll get to all that. First, let’s talk about Roundup weedkiller.

Roundup is a popular line of herbicide products manufactured and distributed by Monsanto. Its main active ingredient is glyphosate, which is used around the world to kill weeds without harming crops. Glyphosate “is so effective,” according to one pesticide expert, “that it is estimated to have saved farmers a staggering ‘$21 billion’ annually.”

The Environmental Protection Agency first reviewed and registered glyphosate-based pesticides in 1974. Since then, it has regularly evaluated the safety of these products and investigated whether glyphosate exposure causes cancer, concluding each time that it does not pose a public health risk. Over the same period, the EPA has repeatedly approved Roundup product labels that did not include a cancer warning.

However, in 2015, a working group of the International Agency for Research on Cancer, part of the World Health Organization, came to a different conclusion. After conducting a broad review of research on links between glyphosate and cancer, it classified the herbicide as “probably carcinogenic to humans.”

The IARC’s report set in motion a “tidal wave of litigation” against Monsanto as Americans who had been diagnosed with non-Hodgkin’s lymphoma after using Roundup sought to hold the company liable for failing to warn them about the potential risks of glyphosate exposure. One such lawsuit was filed by John Durnell in Missouri in 2019, and it is his lawsuit that is now in front of the Supreme Court.

Before the trial court, Durnell, who believes that Roundup use caused him to develop cancer, argued that Monsanto was liable under Missouri law for defective design, failure to warn, and negligence. Monsanto countered – as it had done in related lawsuits across the country – that he could not bring any of those claims because state rules for pesticide labels are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, a federal law that regulates the use, sale, and labeling of pesticides. Specifically, the company pointed to the part of FIFRA that addresses state authority, which says that states “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required” under federal law, and it emphasized that the EPA had not required it to include a cancer warning on Roundup labels.

The trial court denied Monsanto’s motions for a directed verdict in its favor, and the jury went on to side with Durnell on the failure-to-warn claim, awarding him $1.25 million in compensatory damages.

In February 2025, the Missouri Court of Appeals affirmed the judgment, holding that Monsanto had failed to show that Missouri’s labeling rules are at odds with FIFRA’s rules. “The record contains no evidence that Monsanto either informed the EPA of the justifications for a change to its warning label or that the EPA has informed Monsanto it would not approve such a warning,” the court explained. According to the court, it is not enough to argue, as Monsanto did, that “the regulatory history of glyphosate constitutes ‘clear evidence’ the EPA would not approve a cancer warning on Roundup’s label.”

After the Missouri Supreme Court declined to weigh in, Monsanto turned to the Supreme Court, noting that the Missouri Court of Appeals’ decision had deepened a disagreement involving both other state courts and federal courts of appeals over whether states can require warnings about glyphosate when the federal government does not. In an amicus, or “friend of the court,” brief filed at the Supreme Court’s request, U.S. Solicitor General D. John Sauer urged the justices to take up the case and offered support for Monsanto’s position. In January, the court added the case to its oral argument docket.

In its brief on the merits, Monsanto contended that lawsuits like Durnell’s are both expressly and impliedly preempted by FIFRA. The federal law expressly, or explicitly, bars such state claims, according to the company, by declaring that states cannot impose label requirements “in addition to or different from” federal requirements. And it impliedly, or implicitly, preempted these suits because, under FIFRA, Monsanto cannot add a cancer warning to its product labels without the EPA’s approval, and the EPA “has determined—repeatedly—that glyphosate does not cause cancer in humans.” Moreover, the company noted that the EPA has directly reviewed the IARC’s findings, examining “all relevant evidence IARC collected, and numerous studies IARC failed to consider.” The agency “concluded that ‘[t]he strongest support’ was for classifying glyphosate as ‘not likely to be carcinogenic to humans.’”

It defies both “Congress’ will and common sense,” Monsanto continued, to allow “lay juries” in states across the country to reject EPA’s extensive research when considering lawsuits over the product labels it has approved. Congress carefully crafted FIFRA to ensure that the agency had the authority “to evaluate health risks and decline to register pesticides that lack necessary health warnings.” In doing so, the EPA “strike[s] a balance” between educating the public about potential health risks and promoting pesticide use and development in the service of strengthening the food supply. Suits like Durnell’s threaten that balance, Monsanto contended, adding that “[t]he threat is not just to existing products, but to the incentives to develop the next generation of even better pesticides.” “[T]here is no such thing as a no-risk pesticide. And if the ultimate result of exhaustive research-and-development efforts is equally exhaustive state-court litigation under the varying laws of 50 states, then the whole game is not worth the candle.”

In a friend-of-the-court brief filed after the Supreme Court agreed to take up Monsanto’s case, the federal government (which will also be arguing before the court) again supported Monsanto’s position, asserting that FIFRA’s uniformity requirement clearly bars states from requiring cancer warnings on labels that the EPA does not require. To hold otherwise, Sauer wrote, would be to create a “State-by-State cacophony.” “If States can compel” Monsanto “to add a cancer warning—contrary to EPA’s scientific judgments—States could drown EPA’s approved warnings in a sea of local health and environmental concerns.”

In his brief on the merits, Durnell acknowledged that the EPA has significant authority under FIFRA to review and register pesticides for sale and distribution in the U.S. The law instructs judges to defer to the EPA’s registration decisions if the agency shows its decisions were “based on substantial evidence.” However, Durnell contended, this registration authority does not give the EPA “ultimate power” over pesticide labels. While FIFRA makes it clear that the agency should consider a product’s label during the registration process, it does not say that its label assessments must be accepted in courtrooms nationwide. “There is ... no provision of FIFRA that requires judges or juries to defer to the Administrator’s determination that a pesticide complies with (or violates) the misbranding prohibition,” Durnell said.

Durnell further argued that Missouri’s effort to hold manufacturers accountable for failing to warn customers about health risks is consistent with FIFRA’s misbranding prohibition and thus does not run afoul of the portion of the law that prevents states from “impos[ing] any requirements for labeling or packaging” that add to or differ from federal requirements. “State law forbids the sale of a pesticide without a truthful and ‘adequate warning.’ Federal law prohibits selling a pesticide with a misleading or ‘inadequate warning[].’ Barring an outright copy-and-paste, it would be hard to have less daylight escape between the legal standards established.” Those similarities are what matter here, Durnell emphasized, not the jury’s and the EPA’s contrasting conclusions about the health risks posed by glyphosate.

In its reply brief, Monsanto described Durnell’s argument as a “remarkable submission” that “is flawed on multiple levels.” Because Congress intended “to ensure ‘uniformity’ in labeling,” the court should not hold “that pesticide manufacturers have no way to know whether a pesticide is misbranded until they see what comes out of a particular jury box,” the company wrote.

As noted above, Monday’s argument in Monsanto Company v. Durnell will take place against the backdrop of a much broader battle over the future of Monsanto and, indeed, of glyphosate. In February, President Donald Trump issued an executive order on glyphosate, which stated that its continued production and use are critical to national security. That same month, Monsanto’s parent company, Bayer, announced a proposed $7.25 billion settlement aimed at resolving “current and future cancer lawsuits over its Roundup weedkiller,” including lawsuits that would be foreclosed by a Supreme Court ruling in Monsanto’s favor. Experts have noted that the settlement agreement would soften the blow for Monsanto if the Supreme Court rules against it and do the same for its challengers if a majority reaches the opposite result.

The Supreme Court’s decision is expected by early July.

In case you missed it, yesterday we launched our redesigned website. Read this post to learn more about the new look, and, as always, feel free to reach out to scotusblog@thedispatch.com with questions or concerns. Thank you for your readership and all your help in keeping SCOTUSblog alive and thriving!

At the Court

On Wednesday morning, the court released two opinions. In Enbridge Energy, LP v. Nessel, the court unanimously held that a federal district court did not have the discretion to excuse the late removal of a case from state court to federal court. In Hencely v. Fluor Corporation, a 6-3 court – with Justices Samuel Alito and Brett Kavanaugh and Chief Justice John Roberts in dissent – held that a state-law tort claim filed by Winston Hencely, who was injured during a suicide bombing carried out by an Afghan employee of a federal contractor, was not preempted by federal law.

After the opinion announcements, the justices heard argument in Blanche v. Lau, on the rights of lawful permanent residents who have been accused of committing a crime that puts them at risk of being removed from the country.

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

Morning Reads

Trump bashes Supreme Court’s ‘Republican’ justices, says they’ve ‘gone weak, stupid, and bad’

Sophie Brams, The Hill

In a lengthy Truth Social post on Wednesday, President Donald Trump criticized Republican-appointed justices for not “stick[ing] together” and for “giv[ing] the Democrats win after win,” including in the tariffs case. “[C]ertain ‘Republican’ justices have just gone weak, stupid, and bad, completely violating what they ‘supposedly’ stood for,” the president wrote. As The Hill noted, “Trump has chided the Supreme Court often in recent months, directing much of his frustration toward Justices Neil Gorsuch and Amy Coney Barrett, both of whom he appointed to the bench.” In Wednesday’s post, Trump also said that the court “probably will” “rule against our Country on Birthright Citizenship” and referred to Justice Ketanji Brown Jackson, without naming her, as “that new, Low IQ person, that somehow found her way to the bench.”

Breyer Defends Supreme Court as Shadow Docket Scrutiny Grows

Jordan Fischer, Bloomberg Law

During an appearance on Tuesday at the Harvard Graduate School of Education, retired Justice Stephen Breyer “defended his former colleagues on the US Supreme Court, saying he doesn’t believe any justice is serving to advance a political agenda,” according to Bloomberg Law. “I do not think there’s some kind of plot involved within the court to get this or that decided,” he said. Breyer specifically addressed the controversy surrounding the court’s unexplained emergency docket rulings, contending that offering explanations “could lock justices into early views before the factual record is fully developed.” “Once you’ve written, you are wedded—not a hundred percent, but pretty much,” Breyer said.

Scoop: DeSantis "begging" Trump for prime role in administration

Marc Caputo, Axios

Citing six unnamed sources, Axios reported on Tuesday that “President Trump has told confidants that Florida Gov. Ron DeSantis is ‘begging’ for a job in Trump’s administration — including attorney general.” DeSantis, who will leave office in January, “also has expressed interest in being secretary of defense and even a spot on the U.S. Supreme Court.” One source told Axios that “DeSantis and conservative Justice Clarence Thomas ... ‘almost have a father-son relationship.’” A spokesperson for DeSantis told Axios that “[s]ome in the media prefer to focus on fake rumors rather than the many accomplishments of Florida’s partnership with the Trump administration.”

Texas can require public schools to display Ten Commandments in classrooms, court rules

Jamie Stengle, Associated Press

The U.S. Court of Appeals for the 5th Circuit on Tuesday ruled that “Texas can require the Ten Commandments to be displayed in public schools,” holding that such displays do not violate the religious freedom of parents or students, according to the Associated Press. “No child is made to recite the Commandments, believe them, or affirm their divine origin,” said the 9-8 ruling, which “reverse[d] a lower federal court ruling that had blocked about a dozen Texas school districts ... from putting up the posters” printed with the Ten Commandments. “The American Civil Liberties Union and other groups that challenged the Texas law on behalf of parents said in a statement that they anticipate appealing the ruling to the U.S. Supreme Court.”

US appeals court calls 158-year-old home distilling ban constitutional, creates split

Jonathan Stempel, Reuters (paywalled)

In a 2-1 ruling on Tuesday, the U.S. Court of Appeals for the 6th Circuit “upheld the constitutionality of a nearly 158-year-old federal ban on home distilling, 11 days after a different appeals court came to the opposite conclusion,” according to Reuters. The 6th Circuit “called the ban a ‘necessary and proper means’ of collecting federal excise tax on distilled spirits,” noting that “Congress had ample reason to conclude that many at-home distillers would not pay the tax.” The U.S. Court of Appeals for the 5th Circuit, on the other hand, “had said [the ban] actually reduced revenue by preventing distilling in the first place.” Lawyers for the challenger in the 6th Circuit case “said he will appeal Tuesday’s decision to the U.S. Supreme Court, which could resolve the circuit split.”

On Site

Case Preview

Court to hear argument on law enforcement’s use of “geofence warrants”

The Supreme Court will hear oral argument next week in Chatrie v. United States, which concerns a Virginia man who was convicted of bank robbery. Okello Chatrie contended in the lower courts that the government violated the Fourth Amendment when it obtained his location from his cellphone records, which put Chatrie in the vicinity of the robbery. The lower courts rejected that argument, but now the justices will weigh in.

Contributor Corner

The emergency docket’s mistaken birthday

In her Ratio Decidendi column, Stephanie Barclay reflected on The New York Times’ publication over the weekend of “a trove of internal Supreme Court memoranda from February 2016,” noting that reporters and some commentators have referred to the decision addressed in those memos as “the birth of the court’s modern ‘shadow docket.’” Those proclamations are “wrong,” Barclay contended, as the court had blocked “an executive branch regulatory program” over two years earlier on its “shadow docket.”

The New York Times

Supreme Court weighs police use of geofence warrants

By Adam Liptak

The justices heard arguments Wednesday over whether broad location-data warrants — which sweep up phone records from every device in a given area — can be reconciled with the Fourth Amendment's particularity requirement.

A Closer Look:

Broadnax v. Texas

This Closer Look expands on the case description Kelsey wrote for her article on recent petitions for review involving public figures.

Last fall, a growing debate in legal circles over using rap lyrics as evidence spilled over into public view when a federal judge weighed in on the high-profile rap battle between Drake and Kendrick Lamar. In dismissing Drake’s effort to hold their shared record label accountable for defamation and harassment, U.S. District Judge Jeannette A. Vargas emphasized that claims made in diss tracks are purposely “heated,” “loaded,” and contain “violent imagery,” and should be treated as “nonactionable opinion.”

Drake has since appealed that decision to the U.S. Court of Appeals for the 2nd Circuit, prompting legal scholars from across the country to file amicus, or “friend of the court,” briefs in recent weeks urging the 2nd Circuit to affirm the lower court and, in that way, prevent rap lyrics from becoming key courtroom evidence. They warned that treating them as such risks promoting “racial bias and prejudice” because rap lyrics in general – not just diss tracks – are often written by Black artists.

As the 2nd Circuit considers those arguments, the Supreme Court is weighing similar assertions made by rappers who are urging the justices to hear the case of James Garfield Broadnax, a death row inmate in Texas.

Broadnax was convicted in 2009 for the murders of music producers Stephen Swan and Matthew Butler. During the sentencing phase of his trial, prosecutors introduced “over 40 pages of his handwritten rap lyrics” to the predominately white jury, arguing that the lyrics showed his propensity toward violence.

In his petition for review, Broadnax describes the lyrics as “racially inflammatory” and inappropriately prejudicial evidence, and he accuses prosecutors of “exploit[ing] racial stereotypes commonly associated with rap lyrics and the Black community to transform Mr. Broadnax’s artistic expression into a death warrant.” Broadnax asks the justices to take up his case and hold that the introduction of the lyrics rendered his sentencing “fundamentally unfair.”

Last month, two friend-of-the-court briefs were filed in support of Broadnax by hip-hop artists, including Travis Scott, T.I., and Killer Mike, and several music scholars. The rappers explained that, although rap is incredibly popular, it’s often misunderstood. “[R]ap music’s characteristics as a genre, divorced from context, uniquely position it to be abused by prosecutors against criminal defendants and increase the likelihood that juries will be influenced to convict or inflict harsher sentences on improper grounds,” Scott contended. In an interview about the briefs with The New York Times, Killer Mike said that violent lyrics are “an interpretation of the human spirit ... not an admission of guilt.”

In their brief in opposition to Broadnax’s petition for review, Texas officials contended that the Supreme Court does not have the authority to consider his case, because “[t]he court below dismissed the claims for which Broadnax seeks review on an adequate and independent state-law ground without reaching the merits.” Even if his case was within the Supreme Court’s jurisdiction, they continued, “nothing Broadnax presents warrants” the justices’ attention.

The petition for review in Broadnax v. Texas is expected to be addressed during the justices’ private conference on Friday. Broadnax’s execution is scheduled for April 30.

SCOTUS Quote

MR. DVORETZKY: “And, look, I'm not going to be the lawyer who stands here and tell – tells you what the Court will or won't do in an April argument, but I think this would be an – an appropriate case in which to DIG [dismiss the case as improvidently granted] –”

(Laughter.)

JUSTICE KAGAN: “You should have been here yesterday.”

(Laughter.)

MR. DVORETZKY: “An appropriate case in which to DIG rather than take on these questions.”

CHIEF JUSTICE ROBERTS: “Just to be clear, we will take appropriate action without regard to –”

(Laughter.)

CHIEF JUSTICE ROBERTS: “– without regard to the calendar.”

— Blanche v. Lau (2026)

The case has its roots in a 2019 robbery of a federal credit union in Midlothian, Virginia, in the Richmond suburbs. Because the robber, who made off with $195,000, appeared to be speaking on his cellphone when he entered the bank, law enforcement officials served a “geofence warrant” on Google, which directed the tech company to provide location data for cellphone users who were near the bank at the time of the robbery.

The process of obtaining data from Google moved forward in three steps. The warrant initially created a “geofence” with a 150-meter radius around the bank for the 30 minutes before and after the robbery. Google gave law enforcement officials an initial list of accounts linked to devices that were in the area during that time period, although it did not provide the names of the users of those accounts. At the second step, based on the initial list, law enforcement officials asked Google for information about several accounts that were in the area during a two-hour period. And at the third step, a detective asked for, and received, the names and information for three accounts – one of which was the defendant, Chatrie. Law enforcement did not seek a warrant when conducting the latter two steps.

Based on the information that the government had obtained from Google, Chatrie was charged with (among other things) bank robbery. He asked a federal district court in Virginia to bar prosecutors from using evidence obtained as a result of the geofence warrant against him, arguing that it violated the Fourth Amendment. The district court agreed with Chatrie that the warrant in his case did not have the kind of probable cause that the Fourth Amendment requires, but it nonetheless allowed the government to use the evidence on the ground that law enforcement had acted in good faith.

Chatrie then pleaded guilty to bank robbery and gun charges, although he reserved the right to appeal the district court’s denial of his motion to suppress the evidence obtained through the geofence warrant. He was sentenced to 141 months in prison, followed by three years of supervised release.

A divided panel of the U.S. Court of Appeals for the 4th Circuit affirmed the denial of Chatrie’s motion to suppress. In the majority’s view, the government had not conducted a “search” for purposes of the Fourth Amendment because Chatrie could not reasonably expect two hours’ worth of location data, which he had voluntarily allowed Google to have, to be kept private. The case then went to the full court of appeals, which upheld the panel’s ruling in a deeply splintered decision.

Chatrie subsequently came to the Supreme Court, which agreed in January to take up his case.

In his brief on the merits, Chatrie makes several different arguments assailing the use of the geofence warrant to find his location data. First, he contends, the use of the warrant resulted in a “search” for purposes of the Fourth Amendment. This is so, he says, for two reasons. It infringed on his property interest in his location data, and he had a reasonable expectation of privacy in that data. In particular, he notes, geofence warrants “present serious privacy concerns” because the government can use them to determine when someone makes a visit that they might want to keep discreet – for example to a plastic surgeon or a psychiatrist. Chatrie also tells the justices that the “third-party doctrine” – the idea that someone gives up a reasonable expectation of privacy over information that he voluntarily discloses to someone else – does not apply here because it only involves business records, which location data is not.

Second, Chatrie argues, although the government may have had a warrant for its search, the geofence warrant was still unconstitutional because it was the kind of “general warrant” that the Fourth Amendment was intended to protect against – “instruments that allowed the government to search first and develop suspicions later. A geofence warrant operates on precisely that principle.” The warrant was also unconstitutional in any event, Chatrie contends, because it did not identify any specific accounts to be searched or provide probable cause to believe that any of those accounts would have evidence relevant to the bank robbery.

The government offers a very different view of the case. It emphasizes first that Chatrie did not have any reasonable expectation of privacy in his location data, both because he “affirmatively opted to allow Google to collect, store, and use” it and because the warrant merely sought information that would have been “visible to anyone near” him at the time of the robbery. And although, according to the government, Chatrie cannot make his property rights argument at all, because he did not make it in the lower court, the government contends that it too fails because “‘American law has generally refused to recognize property rights in data’ as such” and because any property rights would be Google’s, rather than Chatrie’s.

The government also pushes back against Chatrie’s suggestion that the warrant used by the government in this case resembles a “general” warrant. U.S. Solicitor General D. John Sauer stresses that, unlike a general warrant, the warrant in this case did not give law enforcement officials “free rein to rummage through Google’s database.” To the contrary, he suggests, “the warrant simply directed Google to locate and turn over the necessary information, such that investigators themselves saw only a minuscule slice of data in Google’s database.” “At bottom,” Sauer posits, Chatrie’s “arguments seem to imply that no geofence warrant, of any sort, could ever be executed.”

It is not clear how broad the impact of the court’s decision in the case will be, because Google now stores location data on mobile devices themselves, rather than in its own database. Additionally, even if the court ultimately determines that the search violated the Fourth Amendment, the government contends that the evidence against Chatrie can come in based on the the lower court’s finding that law enforcement acted in good faith in obtaining the location data from Google.

But as one “friend of the court” brief, filed by the Cato Institute, points out, the court could still clarify a variety of issues related to cellphones, technology, and the Fourth Amendment – for example, whether Americans have a property interest in digital records, even if they are stored with tech companies like Google, and when the government must obtain a warrant if it seeks to search digital records.

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

Last Saturday, the New York Times published a trove of internal Supreme Court memoranda from February 2016 and declared that the five-day deliberation over President Barack Obama’s Clean Power Plan marked the birth of the court’s modern “shadow docket.” Stephen Vladeck, writing before the leak and again after it, made the same claim: the Feb. 9, 2016 rulings were, he wrote, “the birth of what we might call the modern emergency docket.” Jack Goldsmith, pushing back against the broader Times framing, narrowed the point but did not abandon it – the 2016 order, on his account, “fairly marks the beginning of the Court’s modern active engagement with presidential initiatives via interim orders.”

Each of these accounts locates the emergency docket’s initial engagement with presidential initiatives on a single winter evening in 2016. Each is wrong. An earlier interim order blocking an executive branch regulatory program as applied to a large group of challengers was not entered by Chief Justice John Roberts. It was entered by Justice Sonia Sotomayor, acting alone, more than two years before the Clean Power Plan application landed at the court. And her approach was adopted not long after by a unanimous Supreme Court.

What the reporting claims

The Times story is thorough, but the framing is unmistakable. Jodi Kantor and Adam Liptak describe the February 2016 orders as the birth of a secretive track the court has since used to make many “major decisions” on presidential power. The court’s five-day rush, on their account, was a rupture. Justice Elena Kagan expressed the following concern in her private memo: “As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.” Vladeck’s February anniversary piece, which the Times quotes, had made the same point. Prior to 2016, Vladeck wrote, the court had “virtually no examples of full Court emergency relief respecting national (or even non-election-related state) policies prior to the Clean Power Plan orders.” Goldsmith, writing on Sunday in Executive Functions, called the Times reporting “tendentious” but acknowledged the precedent-setting function of the CPP orders in narrower terms: they marked the beginning of the court’s “modern active engagement with presidential initiatives via interim orders.”

These are different versions of the same claim. On all of them, the emergency docket’s engagement with major presidential initiatives began on Feb. 9, 2016.

The problem with the claim

The claim fails even on its narrowest formulation. By the time West Virginia’s application reached Roberts’ desk, the Supreme Court had been enjoining significant applications of executive branch regulatory programs for at least two years. The court had been doing so in exactly the procedural posture the Clean Power Plan application would later present: a very short interim order, issued before any appellate court had reached the merits, in response to a brief procedural stay denial below.

A key early order came from a Democratic appointee. And a subsequent order was ratified by the full court without a recorded dissent.

Sotomayor’s New Year’s Eve

On Sep. 24, 2013, the Little Sisters of the Poor sued the Department of Health and Human Services in the District of Colorado. At issue was no peripheral rulemaking. The Affordable Care Act was Obama’s signature domestic achievement, and the contraceptive mandate had emerged as one of its most politically contested features – litigated, protested, and debated in the presidential campaign cycle then just concluded. Fifteen months earlier, the court had narrowly upheld the ACA’s individual mandate in NFIB v. Sebelius. By late 2013, dozens of challenges to the contraceptive mandate were pending in the lower courts. The Little Sisters argued that the mandate, promulgated by regulation rather than required by the ACA itself, forced them to facilitate the provision of coverage they understood as a grave violation of Catholic moral teaching.

The district court denied their preliminary injunction motion on December 27. The U.S. Court of Appeals for the 10th Circuit denied a request for an emergency injunction pending appeal on December 31. Enforcement was set to begin at midnight.

Sotomayor, as circuit justice for the 10th Circuit, received the Little Sisters’ emergency application that evening. She granted it within hours, before she herself led the ball drop in Times Square that New Year’s Eve. Her order was only one paragraph long and issued without merits briefing, oral argument, or explanation.

It enjoined the federal government from enforcing a premier presidential regulatory initiative before the 10th Circuit had ruled on whether the district court had correctly denied preliminary injunctive relief. The New York Times editorial board immediately criticized the ruling as “perplexing,” arguing that Sotomayor had granted an “audacious” request. The criticisms focused in part on the fact that “[a] federal trial court denied a preliminary injunction . . . and a federal court of appeals declined to issue an injunction pending appeal” because they found interim relief unnecessary. Yet Sotomayor’s ruling went the other way.

The HHS contraceptive mandate was, in every relevant sense, a presidential initiative of a piece with the Clean Power Plan that would arrive at the court two years later. (And in fact, the Clean Power Plan, when it arrived two years later, would command nothing close to this level of political salience or legal traffic.) Congress had not directed the contraceptive mandate’s imposition. The ACA did not require coverage of contraceptives; that requirement was added by HHS through an interim final rule and then enforced against religious nonprofits whose objections the administration refused to accommodate. The regulation threatened fines that would have bankrupted the Little Sisters before any appellate court could adjudicate their claims – the same mootness-by-compliance problem that would animate the chief justice’s memo about the Clean Power Plan in February 2016. The Sotomayor order prevented that outcome. Indeed, the New York Times also published another article at the time explaining that Sotomayor had blocked the contraception mandate on insurance in a suit involving the nuns.

The impact of the court’s action here was not limited to a single justice. Three weeks later, on Jan. 24, 2014, the full court extended the injunction. The order was unsigned. It provided no merits reasoning. It enjoined the federal government from enforcing the mandate against the Little Sisters and against more than 400 additional Catholic organizations receiving benefits through the same Christian Brothers plan while their appeal was pending before the 10th Circuit. There were no recorded dissents. Justices Ruth Bader Ginsburg, Stephen Breyer, Sotomayor, and Elena Kagan – the four Democratic appointees then sitting – concurred in the court’s unsigned, unexplained order freezing a major application of an executive branch regulatory program before any appellate court had issued any thoroughly reasoned order or reached a final merits judgment.

By any metric the Times applies to the February 2016 orders, this was a modern emergency docket decision. An unsigned order. No merits briefing. No oral argument. An intervention ahead of the 10th Circuit’s full appellate resolution. A major decision limiting enforcement of a signature presidential initiative. And – a feature the 2016 orders notably lack – unanimity across the court’s ideological divisions.

Wheaton and Zubik

The line did not end with the Little Sisters. On July 3, 2014, the court granted an injunction pending appeal to Wheaton College, again before the U.S. Court of Appeals for the 7th Circuit had addressed the merits of Wheaton’s religious liberty claim. Sotomayor, joined by Ginsburg and Kagan, dissented. Breyer did not.

On April 15, 2015 – the same day the 3rd Circuit had denied a stay pending cert, and nearly seven months before cert was granted – the court recalled and stayed a mandate in Zubik, one of a set of seven religious nonprofit cases that would eventually be consolidated for Supreme Court review.

So by the time the Clean Power Plan application reached Chief Justice Roberts in January 2016, the court had already issued at least three of these interim orders (of which I’m aware). The February 2016 orders differed in the policy area involved and in the scale of the regulatory program they touched. But they did not differ in procedural kind. Kagan’s private complaint in 2016 – that second-guessing the D.C. Circuit without full briefing or a prior merits ruling was unprecedented – was, as a matter of the court’s actual practice, incorrect. The court had done it repeatedly, and she had joined such orders without dissent.

Some might say that these types of orders are different from the Clean Power Plan case, because they enjoin or stay the president’s rule as to many challengers, rather than invalidating the entire rule. But the New York Times’ description of the birth of the modern emergency docket hasn’t been limited to that context. It discusses “major decisions” affecting national power. Vladeck described the Clean Power Plan as unprecedented because there are “virtually no examples” of “emergency relief respecting national . . . policies.” And Vladeck and other critics haven’t been shy about lambasting the court’s more recent uses of the emergency docket that enjoined some but not all aspects of government policies. So, such a distinction would really be beside the point.

What actually drives these interventions

What has been unprecedented about the last decade is less about the court’s engagement on the emergency docket. That engagement has been a response. What has been unprecedented is, among other things, the executive action to which the court has responded – regulatory programs and enforcement actions designed, through their fine structures or compliance timelines, to impose the costs of capitulation before any court could reach the merits, rendering any merits review after the fact a nullity. Roberts voiced this exact concern in his Clean Power Plan memo, noting that the court had learned from recent experience showing that the EPA had found ways to “effectively implement an important program we held to be contrary to law.” The continuity in the court’s doctrinal response tracks that pattern, not partisan alignment.

The HHS mandate raised that problem in an acute form. The government had structured the regulation and its penalty regime so that compliance costs would accrue daily from the moment of enforcement. For a small religious nonprofit, the effect was to force capitulation or bankruptcy before any appellate court could adjudicate its religious claims. Justice Samuel Alito’s private 2016 memo, concerned that voluntary compliance with the Clean Power Plan would render merits review “a mere postscript,” voiced a concern that had been addressed – without dissent – in 2014.

The same structural concern has driven the court’s engagement with the current Trump administration. When the executive branch attempted to remove alleged Tren de Aragua members under the Alien Enemies Act on a timeline calculated to foreclose any judicial testing of the removals’ lawfulness, the court enjoined the removals on an emergency basis. When the administration sought to federalize and deploy the Illinois National Guard on contested statutory grounds, the court denied its stay application. When the administration sought emergency relief to remove a Federal Reserve governor, the court declined to resolve the application on the emergency docket and deferred it for full oral argument.

The Times reporting mentions none of these orders. Rather, its operative claim is that the Roberts court uses the emergency docket to empower presidents its majority favors and to rein in those it opposes. But that claim cannot be reconciled with the rulings above, which together have denied the current administration some of the emergency relief it has sought most aggressively. Nor can it be reconciled with the 2013-2015 orders in the Little Sisters line, which reach further back than the Times’ chosen starting point and begin with a Sotomayor order against a Democratic president.

The procedural posture of these cases may have some unique elements, but the principle behind them is not. What Abbott Laboratories recognized in 1967, and Ex parte Young in 1908, is that constitutional and statutory rights mean little if a regulated party must comply with a legal command in order to earn the privilege of contesting it – particularly where the costs of compliance are significant and the penalties for noncompliance are ruinous. Abbott permitted pre-enforcement review of FDA regulations whose compliance costs would otherwise have accrued before any court could test their validity. Young permitted federal injunctive relief against state enforcement of railroad rate laws whose penalties were calibrated to deter any carrier from contesting them in the first place. All of these cases share the same premise: that meaningful judicial review requires, at some point, the ability to pause enforcement before irreparable harm has already been done. The emergency docket’s interim injunctions against executive action are a modern application of that premise, not a departure from it. When the executive’s aggressive new tactics are designed to foreclose merits review, the longer legal tradition is often on the side of court intervention.

The real novelty

Even more unprecedented than the executive action that has driven the court’s engagement over the last decade is the leaking of the court’s deliberations in response. What is genuinely new about this episode is not what the court decided in February 2016. It is that the memoranda in which the justices debated what to decide are now in the newspaper.

The “shadow” papers are the third major trove of internal Supreme Court material the Times has published in two years, following the 2023 reporting on the court’s 2021 deliberations in the Texas abortion case and the 2024 reporting on the presidential immunity case. As Professor Stephen Sachs has written at Divided Argument, the May 2022 Dobbs leak led directly to an assassination attempt on Kavanaugh at his home the following month – aimed, Sachs argues, at preventing the draft opinion from securing his vote for the necessary majority. The identity of the current leaker remains unknown. What is known is that, somewhere inside a small institution, someone is feeding the press the private work product of justices who win internal arguments, with the evident purpose of exposing and punishing their reasoning.

The current commentary cycle is focused on the deliberations the leaks exposed. But how these materials are reaching print, and what that pattern will mean for the court’s capacity to function as a deliberative institution – has attracted far less attention. When any tentative vote or draft passage can be weaponized the moment it displeases someone with access, justices and their clerks cannot deliberate candidly. And a democracy that depends on their candor is the weaker for it.

What the papers actually show

The story the “shadow papers” tell, read alongside the cases the Times chose not to include, is not one of a court that stumbled into something novel on Feb. 9, 2016. It is one of a court that has been responding, for more than a decade, to a new and recurring problem: executive action, and at times lower-court action, whose design or pace would render ordinary merits review a formality.

That problem took one form when the HHS mandate threatened to bankrupt a small order of nuns before the 10th Circuit could reach their religious liberty claim. It took another when the Clean Power Plan aspired, in its own administrator’s words, to be baked into the system before the D.C. Circuit could rule. It took others when the current administration sought to remove deportees before any court could test the removals, to deploy the National Guard in the absence of a clear statutory predicate, and to remove a Federal Reserve governor without waiting for merits resolution. In each instance, the court intervened. Sometimes the court granted relief, and sometimes it denied relief. But it did so on the basis of the same underlying concern about whether judicial review would mean anything if the executive were permitted to act first and answer later.

The 2016 Clean Power Plan orders sit in the middle of that line. They do not begin it. An earlier emergency docket intervention against a presidential regulatory initiative in the modern era came on New Year’s Eve 2013, and it came from Justice Sotomayor. That is an inconvenient fact for the story the Times has chosen to tell. It is also the fact that best explains one of the important functions the emergency docket has actually been playing for the past decade – a check on executive overreach, across presidents of both parties.

At the Court

Yesterday, the justices heard argument in Federal Communications Commission v. AT&T, Inc., on whether the FCC violates the Seventh Amendment’s guarantee of a right to a jury trial when it imposes fines for violations of federal communications laws. For more on the dispute, see the On Site section below.

Also on Tuesday, the court denied a request for a stay of execution from Chadwick Willacy, who was sentenced to death in Florida for the 1990 killing of Marlys Sather. His execution took place hours later.

As noted above, the court has indicated that it may announce opinions this morning at 10 a.m. EDT. We will be live blogging beginning at 9:30 a.m.

After the possible announcement of opinions, the justices will hear argument in Blanche v. Lau, on the rights of lawful permanent residents who have been accused of committing a crime that puts them at risk of being removed from the country.

Morning Reads

Trump says ‘I’ll remember’ companies that don’t seek tariff refunds

Dan Mangan and Gabrielle Fonrouge, CNBC

During a Tuesday appearance on CNBC, President Donald Trump said “he will gratefully ‘remember’ U.S. companies that do not seek refunds for the tariffs he unilaterally imposed, which the Supreme Court later ruled were illegal.” “He was asked about a number of large companies, among them Apple and Amazon, that have not filed requests for refunds for the tariffs they paid, potentially because they are worried about ‘offending’ Trump.” “Actually, if they don’t do that, they’ve got to know me very well,” the president said. Trump also complained about the tariffs ruling during the interview, contending that the court should have made it clear that refunds were not required. “So, I’m not happy with the Supreme Court, I’ll be honest with you,” he said.

New Alito book reveals details on Jan. 6 case, flag controversy

Maureen Groppe, USA Today

In May 2024, The New York Times reported that an upside-down American flag was flown outside Justice Samuel Alito’s Virginia home after the 2020 presidential election, noting that upside-down flags had also been “brandish[ed]” by some of those who swarmed the U.S. Capitol on Jan. 6, 2021. In the wake of the Times report, Alito “rejected calls from critics that he recuse himself from cases involving the Jan. 6, 2021, attack,” but “he did give up authorship of the court’s opinion that prosecutors had gone too far in bringing obstruction charges brought against some Capitol rioters,” according to USA Today’s coverage of a new book on Alito by Mollie Hemingway, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. “Alito told Chief Justice John Roberts it would be better for the court if he did not write that opinion.”

Judge dismisses National Guard mobilization suit after Trump’s loss at Supreme Court

Hannah Meisel, Capitol News Illinois

On Monday, U.S. District Judge April Perry “officially closed the book on a lawsuit filed against the Trump administration last fall when the White House ordered 500 National Guard troops to Chicago,” according to Capitol News Illinois. “Perry, whose Oct. 9 temporary restraining order restricted any true deployment of the guardsmen to the streets of Chicago, declined to grant the state of Illinois’ and city of Chicago’s joint motion to keep the case alive in order to protect against any future National Guard mobilization orders from the administration.” The Supreme Court upheld Perry’s Oct. 9 order just before Christmas, holding “that the Trump administration had ‘failed to identify a source of authority that would allow the military to execute the laws in Illinois.’”

Supreme Court sinks wrongful death suit against Andrew Cuomo for COVID nursing home fatalities

Charles Creitz, Fox News

The Supreme Court on Monday denied a petition for review addressing former New York Gov. Andrew Cuomo’s policies for nursing homes during the early days of the COVID-19 pandemic. The “wrongful death case” was “brought on appeal by a Brooklyn man who blamed the Democrat’s COVID-era nursing home orders for his father’s 2020 death,” because the policies required nursing homes to accept transferees from hospitals regardless of whether or not they had COVID-19, thereby increasing residents’ risk of exposure, according to Fox News. A federal district court “dismissed the suit on qualified immunity grounds, which generally state that public officials cannot be prosecuted for actions taken in their official capacity,” and the U.S. Court of Appeals for the 2nd Circuit affirmed that decision.

Aftershocks from ‘The Shadow Papers’

Adam Liptak, The New York Times (paywalled)

In his newsletter for The New York Times, Adam Liptak discussed reactions to the Time’s publication over the weekend of “a trove of confidential memos from the justices.” Responses from law professors, Liptak noted, “have been all over the map. Some said the article shed much-needed light on what critics call the court’s shadow docket, in which the justices use truncated procedures to issue consequential rulings with scant or no reasoning. Others said we had merely confirmed their educated guesses” about how the court came to the decision discussed in the memos. Liptak specifically pointed to reactions from Will Baude and Steve Vladeck, who agreed that the leak of the memos was a big deal even though they disagreed on whether the content was surprising (Liptak described Baude as “The Skeptic”).

On Site

Argument Analysis

Court appears skeptical of right to jury trial in FCC proceedings

The Supreme Court on Tuesday heard oral arguments in a challenge by telecommunications carriers AT&T and Verizon to the constitutionality of fines that the Federal Communications Commission imposed against them for violations of federal communications laws. During nearly 80 minutes of argument, some justices were sympathetic to the companies’ plight, but they also appeared receptive to the FCC’s argument that the orders notifying the companies of the penalties are not binding until the Department of Justice brings a lawsuit to enforce them.

Argument Analysis

Justices seem receptive to SEC’s use of disgorgement in securities enforcement

Monday’s argument in Sripetch v. SEC suggested the possibility of something that has not happened in a lot of the court’s recent cases – a Supreme Court decision rejecting a challenge to the Securities and Exchange Commission’s exercise of certain of its powers.

Contributor Corner

What the New York Times got wrong – and right – about the emergency docket

In her debut In the Interim column, Taraleigh Davis reflected on the Supreme Court memos obtained and published by The New York Times over the weekend and how the Times presented them. While she agreed that the ruling discussed in the memos was significant, Davis argued that “the emergency docket was long in effect” before that case and that “the nature of the court’s deliberations on it were hardly unprecedented.”

Contributor Corner

Justice Thomas’ wrong-headed attack on progressivism

In his Courtly Observations column, Erwin Chemerinsky explored Justice Clarence Thomas’ speech last week at the University of Texas, explaining why he believes it was “wrong-headed.” “A conservative Supreme Court justice broadly condemning progressive ideas, and claiming they are responsible for the worst atrocities of the last century, is the antithesis of helping to find common ground,” Chemerinsky wrote.

Podcasts

Advisory Opinions

The Chief Justice Didn’t Hate President Obama

Sarah Isgur and David French push back against The New York Times’ reporting on the birth of the shadow docket, discuss Justice Sonia Sotomayor’s apology after criticizing a fellow justice in personal terms during a speech at the University of Kansas School of Law, and interview Oklahoma Gov. Kevin Stitt about McGirt v. Oklahoma.

A Closer Look:

SCOTUSblog’s New Look

As you may have noticed, the SCOTUSblog website looks a little – well, OK, a lot – different today. We have entirely redesigned it to better showcase our expansive coverage of the Supreme Court.

So what did we do? Many things. But here are some examples:

• Perhaps most obviously, we’ve dramatically improved the user experience, both aesthetically and structurally. Our prior homepage was wonderful but getting … dated. The new homepage reads more like a magazine than a blog; that is, it allows readers to locate our expanded content not only based on what was recently published but in a much more intuitively appealing way.
• We’ve differentiated between News and Commentary. Many of you are interested in straight-up court news and developments from Amy and the team. Others are interested in analyses and opinions from our top-notch recurring columnists. And many of you are interested in both. The website now reflects this along the top Navigation Bar – separating out these distinct types of content while making it easier to navigate between them.
• We’ve expanded our calendar and live coverage, making SCOTUSblog the one-stop shop for any upcoming arguments, announcements, or notable events at the Supreme Court.
• We’ve created handy landing pages for almost everything, whether for podcasts, authors, series, or recurring columns.
• We have substantially improved our case pages. These feature all the relevant data for each case, the proceedings below, and additional information for practitioners and casual SCOTUSblog readers alike.
• We have set up the infrastructure to significantly enhance our statistics, which we will roll out in the coming weeks. Specifically, this will allow readers to track how each justice votes and what coalitions they vote in and provide a host of other key court metrics not available anywhere else.
• And we have vastly improved our mobile user experience – which we’ve not only worked to make more visually appealing but easier for readers to scroll through and quickly locate whatever aspect of the court they are interested in.

We look forward to hearing from you about what you think we’ve done right, what can be improved, and any other features you feel would make for a further improved site. Oh, and as with any website alteration, there will be bugs – especially as we all really get to know the new site.

As always, thank you for your readership and all your help in keeping SCOTUSblog alive and thriving!

SCOTUS Quote

CHIEF JUSTICE ROBERTS: “… So again, if you had to decide right now do you go through the anti-Bush crowd or the pro-Bush crowd? Guns are going off, explosions. Which way do you go?”

MR. WILKER: “I truly don't know the answer to your question because I'm not –”

CHIEF JUSTICE ROBERTS: “Really?”

MR. WILKER: “– a security expert. I don't know where the guns are coming from. I don't know what the –”

JUSTICE SCALIA: “You're the farthest thing from a security expert if you don't know the answer to that one.”

— Wood v. Moss  (2014)

But before we go there, a bit of background. When the folks at The Dispatch acquired SCOTUSblog in April of last year, they pledged to help us “double down on rigorous reporting and analysis” in terms of what we do best: making the Supreme Court more accessible. We think that has been a success.

Among other developments:

• We’ve dramatically expanded our coverage of the court. We are once again covering every case argued before the justices. Additionally, we’ve recruited nearly 20 new recurring columnists offering a variety of perspectives on the court’s most important rulings and the latest developments surrounding them. And we are now live blogging at least one argument every sitting and every opinion release day.
• SCOTUSblog has a daily newsletter on all things SCOTUS that’s sent out each weekday to over 80,000 subscribers. (And if you haven’t signed up for it, please do so here!) 
• We’ve dramatically expanded our offerings. For example, the podcast Advisory Opinions now sits fully under the SCOTUSblog umbrella, joined by podcasts Divided Argument and Amarica’s Constitution, as part of an expanding podcast network.
• For the first time, SCOTUSblog has flagship events. Last year’s inaugural summit featured Justice Amy Coney Barrett – and we’re expanding to multiple events in 2026, including a Decision Season forum in July and a Term Preview summit in September. 
• We’ve reintroduced our Stat Pack, a statistical analysis of the court’s work, as well as introduced the only such analysis on the court’s controversial interim docket – catnip for Supreme Court aficionados and legal nerds everywhere. 
• We’ve debuted cutting-edge explainer videos on the court’s most important decisions, for both a general audience and SCOTUS experts.
• Behind the scenes, we’ve also repaired and restored much of the site’s infrastructure, including its case pages and petition analyses.

And now we’re introducing the next phase of SCOTUSblog: an entirely redesigned website.

So what have we done (and what will we be doing)? A lot. But here are some examples:

• Perhaps most obviously, we’ve dramatically improved the user experience, both aesthetically and structurally. Our prior homepage was wonderful but getting … dated. The new homepage reads more like a magazine than a blog; that is, it allows readers to locate our expanded content not only based on what was recently published but in a much more intuitively appealing way.
• We’ve differentiated between News and Commentary. Many of you are interested in straight-up court news and developments from Amy and the team. Others are interested in analyses and opinions from our top-notch recurring columnists. And many of you are interested in both. The website now reflects this along the top navigation bar – separating out these distinct types of content while making it easier to navigate between them.
• You can log in and create an account to track your newsletters (though this is not necessary to access the site).
• We’ve expanded our calendar and live coverage, making SCOTUSblog the one-stop shop for any upcoming arguments, announcements, or notable events at the Supreme Court.
• We’ve created handy landing pages for almost everything, whether for podcasts, authors, series, or recurring columns.
• We have substantially improved our case pages. These feature all the relevant data for each case, the proceedings below, and additional information for practitioners and casual SCOTUSblog readers alike.
• We have set up the infrastructure to significantly enhance our statistics, which we will roll out in the coming weeks. Specifically, this will allow readers to track how each justice votes and what coalitions they vote in and provide a host of other key court metrics not available anywhere else. 
• Next Tuesday, April 28, Advisory Opinions will be launching a newsletter, designed for people who want to keep up with each episode more easily, return to the key arguments later, and have the most important points, cases, and questions gathered in one place.
• And we have vastly improved our mobile user experience – which we’ve not only worked to make more visually appealing but easier for readers to scroll through and quickly locate whatever aspect of the court they are interested in.

This only scratches the surface.

We look forward to hearing from you (scotusblog@thedispatch.com) about what you think we’ve done right, what can be done better, and any other features you feel would make for a further improved site. Oh, and as with any website alteration, there will be bugs – especially as we all really get to know the new site.

As always, thank you for your readership and all your help in keeping SCOTUSblog alive and thriving! 

Two years ago, the court ruled in SEC v. Jarkesy that the Securities and Exchange Commission’s imposition of fines in its administrative proceedings as a penalty for securities fraud violated the Seventh Amendment, which guarantees a right to a jury trial in “suits at common law” – that is, lawsuits seeking legal remedies, such as money, rather than a remedy (known as equitable relief) that orders a defendant to do something or to stop doing something – in which $20 or more is at stake.

The dispute before the court on Tuesday, FCC v. AT&T, stems from a pair of in-house proceedings in which the agency concluded that AT&T and Verizon had violated a provision of the Telecommunications Act of 1996 that requires telecommunications carriers to protect confidential customer data – here, information about customers’ locations. AT&T and Verizon received notices from the FCC advising them that the agency believed they had violated the law and assessing penalties – $57 million for AT&T and $46.9 million for Verizon. They had the chance to file written responses to the notices, but they did not have a hearing or a trial before the agency issued an order, known as a “forfeiture order,” directing them to pay the penalties within 30 days.

Under the Communications Act, when a carrier receives a forfeiture order, it has two choices. First, it can pay the fine and then seek review in a federal appeals court, which will apply a fairly deferential standard. Second, it can refuse to pay the fine; if it does so, the Department of Justice has five years in which to file a lawsuit in a federal district court to enforce the order and collect the fine. In such a proceeding, the carrier would be entitled to a jury trial.

Both companies opted to go to federal court, where they argued that imposing the fine in an in-house proceeding violated their Seventh Amendment right to a jury trial. The U.S. Court of Appeals for the 5th Circuit agreed with AT&T and threw out the fine. Judge Stuart Kyle Duncan wrote that, “in this process, which was completely in-house, the Commission acted as prosecutor, jury, and judge.”

The U.S. Court of Appeals for the 2nd Circuit upheld the fine assessed against Verizon. Writing for that court, Judge Alison Nathan said that “[n]othing about the Commission’s proceedings … transgressed the Seventh Amendment’s jury trial guarantee.”

Representing the carriers, Jeffrey Wall emphasized that the FCC had imposed more than $100 million in civil penalties on the carriers without giving them any way to obtain a jury trial. That, he said, is a “straightforward violation” of the Seventh Amendment. Although the government characterizes the forfeiture orders as merely an “invitation[] to pay,” he said, the language in the federal statute allowing the government to “assess[] and impose[] penalties” is “not voluntary language.” Indeed, he noted, the government itself treats the orders as binding, requiring the recipients to pay the penalties “by a particular date.”

Wall also contended that the forfeiture orders violated a principle known as the unconstitutional conditions doctrine – the idea that the government cannot use coercion to get people to give up their constitutional rights. Here, he said, the government uses the forfeiture orders since “they know that legitimate parties pay 100% of the time,” because they do not want to wait to see whether the government ultimately brings an enforcement action due to the negative implications of having an outstanding unpaid penalty. It’s “hard to imagine a clearer case of penalizing the exercise of a fundamental constitutional right,” Wall concluded.

By contrast, Vivek Suri, the assistant to the U.S. solicitor general who argued on behalf of the FCC, stressed that the forfeiture orders issued by the FCC are not binding. Unlike in Jarkesy, he noted, where the SEC had its own tools to recover penalties that it had assessed, the FCC can only collect the penalties by filing an enforcement suit, “where you do get a jury trial.” Moreover, he continued, in those enforcement suits for the FCC, the jury trial determines “whether you violated the law in the first place.” And interest on the penalties only accrues after the jury trial, he told the justices, because the penalty is not owed until then.

Several justices seemed to agree with the government’s suggestion that the forfeiture orders are non-binding and, therefore, the Seventh Amendment is not implicated. Chief Justice John Roberts wondered aloud whether the orders merely created a “PR problem” because they indicated that the carriers “did something bad.” “In terms of the substantive legal issue,” Roberts suggested, “you are not obligated to pay until you get a jury.”

Wall resisted that characterization, telling Roberts that there is a difference between owing a penalty and when you have to pay it. But Roberts pushed back, comparing the penalties in the forfeiture orders to parking tickets. If you don’t pay those, he observed, you get a legal proceeding.

Both Justices Amy Coney Barrett and Ketanji Brown Jackson echoed Roberts’ thinking. Barrett asked Wall whether, if a forfeiture order is not binding, it can violate the Seventh Amendment. And Jackson queried whether, if the forfeiture order is “just a statutory prerequisite for the DOJ to bring … its lawsuit, then don’t you lose?” “I don’t understand the Seventh Amendment to be involved,” she told Wall, “because, when DOJ brings its lawsuit, you will have a jury trial.”

Wall emphasized that the forfeiture orders “have huge consequences” for the carriers, which were “branded an egregious lawbreaker.” The government can’t now simply “slap a non-binding label” on the forfeiture orders, he said, particularly when carriers have consistently paid them for the last half-century.

The potential consequences for the carriers of a forfeiture order, even if labeled “non-binding” by the government, did appear to be a concern for several of the court’s more conservative justices, such as Justice Neil Gorsuch, who pressed Suri about what repercussions, if any, the orders or the failure to pay the penalties assessed in the orders could have for the carriers. Suri assured the justices that the only legal consequences for a failure to pay the penalty would be an enforcement action by the DOJ. Facts in a penalty order, Suri said, do not carry “any special weight” in future proceedings. Instead, he told the justices, “if the same fact happens to be relevant again, it can be tried again” – a response that seemed to mollify them.

In his rebuttal, Wall warned that construing the forfeiture orders as non-binding but allowing the government to use the facts would create a “domino problem”: “We couldn’t get a jury in the first instance, so we had to pay or hold out and not get a jury. Now you’re going to use it again in this order, and we won’t be able to get a jury there either. If you disagree with us again, we’ll have to sit and wait,” Wall said. He urged the Supreme Court to “avoid all” of the potential problems by holding that the scheme violates the Seventh Amendment. “But, at a minimum,” he concluded, “these orders shouldn’t be worth anything more than the paper they’re printed on, and we ought to get our money back.”

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

The facts of the case illustrate the issue well. Ongkaruck Sripetch pleaded guilty to selling unregistered securities, for which he was sentenced to 21 months’ imprisonment. It is difficult to know exactly how much the securities violations cost his customers, which depends on whether they would have bought the stocks if he had complied with securities laws and how much profit or loss they made on them. But the SEC could prove that he made $6 million in profits from the unlawful transactions, and on that basis the lower courts obligated Sripetch to pay $6 million to the SEC under a recently enacted statute authoring the SEC to seek “disgorgement” from wrongdoers.

At argument, most of the justices who spoke to the topic seemed to think that the recovery fell within the plain meaning of the term “disgorgement,” as they repeatedly emphasized that the SEC’s order did nothing more than require Sripetch to turn over his “ill-gotten gains.” Daniel Geyser (representing Sripetch) argued that the justices should regard the recovery as a “penalty” beyond the scope of the “disgorgement” that the statute authorizes if the SEC could not prove that he had harmed his customers, but that argument gained little traction. As Justice Ketanji Brown Jackson commented, “I could see a fine or a punishment if the defendant is actually paying out of his pocket some money that was rightfully his. That’s a punishment. But if we’re just disgorging his ill-gotten gains, … I’m not sure I understand why that’s a punishment.” In almost the same words, Justice Amy Coney Barrett asked, “[i]f all you’re taking away is the ill-gotten gains, so they’re the proceeds that the wrongdoer isn’t entitled to in the first place, … why would that necessarily be a penalty?”

The justices also pressed Geyser on how to reconcile his position with traditional equitable principles about what “disgorgement” might include. Jackson, for example, commented that she “didn’t see any case … that suggests that pecuniary harm was a requirement [under traditional equitable principles].” Similarly, Justice Sonia Sotomayor, the author of Liu v SEC, the most recent case in the area, characterized Geyser as arguing that the “slew of common law cases … where lost profits were [a] measure … that those were all wrong?” Apparently taking the same view, Justice Brett Kavanaugh offered Geyser an opportunity “to respond to the amicus brief of Professor [Douglas] Laycock and the other[ ] [remedies scholars] … Because they say you’re really quite wrong about the first principles.”

It wasn’t all smooth sailing for Malcolm Stewart (arguing the case for the SEC). Justice Neil Gorsuch in particular seemed quite opposed to the idea that the SEC could collect this type of remedy without a jury trial unless it was going to return the money to the victims. Still, Gorsuch did seem to agree that the jury problem is neither presented nor even particularly relevant to the questions for decision in this case.

Perhaps Sotomayor will want to write the opinion, having written the latest ruling on this subject. But whether or not she writes, it is difficult to see a majority reversing the SEC’s recovery here.

At the Court

On Monday, the court added two cases to its oral argument docket for the 2026-27 term. One is a religious liberty case concerning a Catholic preschool challenging its exclusion from a Colorado “universal preschool” program. The other is a Texas man’s challenge to his sentence for possession of a gun. The court also summarily reversed, over the objections of Justices Sonia Sotomayor and Ketanji Brown Jackson, a decision from Washington, D.C.’s highest court that had thrown out the convictions of a teenage driver over the actions of the arresting officer. For other takeaways from Monday’s order list, see the On Site section below.

Also on Monday, the justices heard argument in two cases: Sripetch v. SEC, on whether the Securities and Exchange Commission can use disgorgement to force a wrongdoer to turn over its profits to the government without showing directly that the wrongdoer’s activities harmed its customers; and T.M. v. University of Maryland Medical System Corp., on whether the Rooker-Feldman doctrine, which limits lower federal courts’ authority to review state-court judgments, applies when such judgments remain subject to further review in state courts.

Today, the justices will hear argument in Federal Communications Commission v. AT&T, Inc., on whether the FCC violates the Seventh Amendment’s guarantee of a right to a jury trial when it imposes fines for violations of federal communications laws.

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

After the possible announcement of opinions, the justices will hear argument in Blanche v. Lau, on the rights of lawful permanent residents who have been accused of committing a crime that puts them at risk of being removed from the country.

Morning Reads

Trump Administration Takes Steps to Refund $166 Billion in Tariffs

Tony Romm and Ana Swanson, The New York Times (paywalled)

On Monday, two months after the Supreme Court released its tariffs ruling, the federal government began accepting requests for tariff refunds. “For some U.S. businesses, the highly anticipated refunds could be substantial, offering critical if belated financial relief,” according to The New York Times. And although the process for “submitting documentation to the government to recover what they paid in illegal tariffs” was working as expected on Monday, some business leaders are still feeling uncertain about how quickly they’ll receive a refund – or if they’ll receive one at all. “I wouldn’t say I’m at all optimistic that they are going to come in a timely manner,” said Cassie Abel, the founder and chief executive of the clothing company Wild Rye. The Times noted that U.S. Customs and Border Protection has said “it expected it would take 60 to 90 days to issue a refund once it accepts an importer’s filing.”

Supreme Court justices turn children’s books into big paydays

Julian Mark, The Washington Post

In May, Justice Neil Gorsuch “will release his first children’s book,” “an illustrated storybook about America’s Founding Fathers, timed to the nation’s 250th birthday.” In doing so, Gorsuch will further a trend toward writing for younger audiences that’s sweeping through the Supreme Court, according to The Washington Post. “Justice Sonia Sotomayor has published five books for younger audiences,” and “Justice Ketanji Brown Jackson released a young-adult version of her memoir, ‘Lovely One.’” The article explained that justices “can make tens of thousands of dollars from diving into kid lit,” noting Sotomayor “has reported receiving more than $870,000 in total in advances and royalties from 2017 to 2024, a period in which she published three children’s books and one for young adults.”

Snohomish firefighters petition Supreme Court over COVID shot mandate

Paige Cornwell, The Seattle Times

Eight firefighters who sued their employer for religious discrimination in 2022 after being placed on leave over their refusal to be vaccinated against COVID-19 “have asked the U.S. Supreme Court to hear their case,” according to The Seattle Times. The firefighters allege that Snohomish Regional Fire & Rescue “violated Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination, and Washington’s Law Against Discrimination” by refusing to make reasonable accommodations that would have allowed them to remain unvaccinated while continuing to work. They are seeking “backpay for the time they were on unpaid leave, and unspecified damages.” A federal district court in Washington and the U.S. Court of Appeals for the 9th Circuit sided with the fire agency.

Kalshi’s fight over sports betting is hurtling toward the Supreme Court—and the future of gambling is at stake

Jeff John Roberts, Fortune (paywalled)

As Kalshi – a prediction market that offers user-to-user event contracts rather than traditional bets and thus seeks to be regulated like a stock market – has become more popular, “state governments and Native American tribes ... have filed a flood of legal challenges” against the company, alleging that “Kalshi is running an unlicensed gambling operation,” according to Fortune. “Judges in at least three states have agreed with this argument, but others have sided with Kalshi and held instead that its sports wagers are a unique type of contract allowed by federal law.” The U.S. Court of Appeals for the 3rd Circuit recently became the first federal appeals court to weigh in and ruled for Kalshi, but the U.S. Circuit Court of Appeals for the 9th Circuit is expected to rule against the company later this year. “If that occurs, or if another appeals court rules against Kalshi, the issue will be teed up for the Supreme Court by next year, according to gaming industry lawyers, who believe this is a likely outcome.”

Dems Aren’t Buying Reports of Alito Staying Put

Lauren Egan, The Bulwark

In a column for The Bulwark, Lauren Egan explored Democrats’ response to reports that Justices Samuel Alito and Clarence Thomas are not planning to retire this year, noting “a liberal judicial advocacy group” called Demand Justice is “treating the reports as smokescreens” and “plow[ing] forward with a major campaign” aimed at making a possible confirmation “fight as painful ... as possible.” “The group will conduct polls and focus groups in battleground states in the coming weeks with the goal of finalizing messaging that resonates with not just their base voters, but independents and Republicans,” such as that whoever Trump would next appoint to the Supreme Court would champion “the billionaire and the corporate class” and “not be a reliable vote on the Court for everyday people.”

On Site

From the SCOTUSblog Team

Supreme Court will hear religious liberty case on Catholic preschools and LGBTQ families

The justices on Monday morning agreed to take up the case of a Catholic preschool challenging its exclusion from a Colorado “universal preschool” program. They also agreed to review a Texas man’s challenge to his sentence for possession of a gun, although they declined to weigh in on the constitutionality of the conviction itself. These are among the takeaways from Monday’s order list, which included several other notable updates.

Argument Analysis

Justices debate the relationship between state and federal courts

The justices on Monday considered the proper relationship between state and federal courts and wrestled with confusion surrounding a doctrine addressing that relationship as they heard oral argument in T.M. v. University of Maryland Medical System.

Contributor Corner

Why the Supreme Court’s birthright-citizenship decision may depend on the meaning of “domicile”

In his Immigration Matters column, César Cuauhtémoc García Hernández revisited the oral argument in the birthright citizenship case, highlighting the significance of the legal concept of domicile and how this may be pivotal to how the justices resolve the case.

A Closer Look:

Justices and Mental Illness

It is believed that over 20% of U.S. adults suffer from some form of mental illness. Justices – like everyone else – have not been spared from this.

The first mention of a justice experiencing a mental health crisis was Chief Justice John Rutledge, who served on the court in the 1790s. After Rutledge’s wife passed away in 1792, he reportedly suffered intermittent episodes of depression, compounded by his mounting financial troubles. After the Senate rejected his nomination as chief 14-10 (he had been recess appointed by President George Washington), a despondent Rutledge attempted to drown himself off a Charleston dock, but was rescued by two enslaved people who spotted him in the water. He then withdrew from public life until his death in 1800.

Justice Henry Baldwin also reportedly suffered from mental illness. In December 1832, reports described how Baldwin – appointed to the court by President Andrew Jackson in 1830 – had been "seized today with a fit of derangement," and Supreme Court advocate Daniel Webster shortly thereafter told a friend of “the breaking out of Judge Baldwin's insanity.” Baldwin apparently wrote incoherent legal opinions, acted erratically in court (and elsewhere), and even sometimes had violent outbursts. Baldwin missed the entire 1833 term after being hospitalized for "incurable lunacy,” and in May of that year, his colleague Justice Joseph Story wrote to a circuit judge that “I am sure he cannot be sane. … [T]he only charitable view, which I can take of any of his conduct, is, that he is partially deranged at all times.” Nonetheless, Baldwin returned the following year and served 11 more years on the court until his death in 1844.

Justice Frank Murphy, who was nominated by President Franklin Roosevelt in 1940 (and is well known today for his dissent in Korematsu v. U.S., which held that the government acted constitutionally in forcing certain Japanese-Americans to move to relocation camps during WWII) became dependent on sleeping pills following several hospitalizations, although consultations with a psychoanalyst reportedly helped his mood. Unfortunately, Murphy later became addicted to the painkiller Demerol, and some believed that he “was regularly purchasing illegal drugs.”

Appointed by President Dwight Eisenhower in 1957, Justice Charles Whittaker agonized for months over how to vote in Baker v. Carr, a landmark reapportionment case. He found himself “paralyzed by indecision,” and in the spring of 1962 suffered a nervous breakdown and was hospitalized. Shortly after, he resigned from the court.

Chief Justice Charles Evans Hughes, a prolific opinion writer for the court throughout FDR’s New Deal battles, suffered from depression and anxiety. At times, he needed a day in bed after a stressful workday and “[a]t least once” received “electroshock treatments” for the condition. However, Hughes kept his condition hidden from the public, given that it would have ended his career (decades later, a senator withdrew from the vice-presidential race after his electroshock therapy treatment became public).

Of course, other justices likely also dealt with mental illness – but either suffered in silence or were able to keep their conditions discreet.

SCOTUS Quote

MS. BLATT: “[S]o, no, you're not going to overrule Rooker. I mean, sorry, I don't think you're going to do that.”

(Laughter.)

“Not in an April case. Not happening.”

(Laughter.)

JUSTICE ALITO: “Don't – don't dare my colleagues.”

(Laughter.)

MS. BLATT: “Okay. I'm sorry. A little too much.”

— T.M. v. University of Maryland Medical System Corp.  (2026)

In a speech on April 15 at the University of Texas, Justice Clarence Thomas said that the rise of progressivism since the beginning of the 20th century has caused great harm. Specifically, in what was ostensibly about the 250th anniversary of the Declaration of Independence, Thomas said, “At the beginning of the twentieth century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them the 28th president, Woodrow Wilson, called it progressivism.” Thomas then went on to blame progressives for the worst crimes of the 20th century, insisting that “Stalin, Hitler, Mussolini, and Mao” were all “intertwined with the rise of progressivism,” as was “racial segregation,” “eugenics,” and various other evils. As Thomas summarized, “progressivism seeks to replace the basic premises of the Declaration of Independence, and hence our form of government.”

To be clear, I see no problem with justices and judges expressing their views off the bench. Although, of course, they should not speak about cases pending or likely to be pending before them, they still retain the right to speak on other matters. And I believe they should speak to help inform people about the law and the legal system. As a lawyer, I also prefer to know the views of the judges I am appearing before, rather than pretend that they are blank slates.

At the same time, I (perhaps naively) would hope that justices would look for ways to unite our country at a time when we are so deeply polarized. But a conservative Supreme Court justice broadly condemning progressive ideas, and claiming they are responsible for the worst atrocities of the last century, is the antithesis of helping to find common ground.

As an initial matter, it is wrong to think of Stalin, Hitler, and Mussolini as progressives by any definition of that term, and though Mao considered himself a progressive revolutionary, his actions had no resemblance to what we considered progressivism in the United States. It is also wrong to say that progressives reject the principles of the Declaration of Independence. Above all, the 27 grievances in the Declaration of Independence were about abuses of executive power by the King of England. Especially at the current moment, it is progressives, far more than conservatives, who are challenging strong executive control over our government. In light of Thomas’ continual votes in favor of broad executive power – in cases ranging from Hamdi v. Rumsfeld (where he alone voted in favor of the president’s authority to detain enemy combatants without due process) to Trump v. United States (where he supported complete immunity for the president from criminal liability for official acts taken in office) – it is odd to see him criticizing progressives for being the ones to abandon a document concerning the profound dangers of executive overreach.

Certainly, the history of progressivism is not spotless. Some progressives did champion eugenics, which led to horrific consequences. But one need not defend everything progressives have advocated to see the flaws in Justice Thomas’ unequivocal and emphatic condemnation of everything progressive.

Consider some of the actions of the Supreme Court since the turn of the 20th century that unquestionably would be regarded as progressive. Would Thomas, or anyone, really claim that these made our country worse?

Racial justice. Thomas suggests that the country began to go wrong early in the 20th century with the presidency of Woodrow Wilson. It is true that Wilson considered himself a progressive. But, on race issues, he was among our least progressive presidents, barring Black individuals from the federal civil service.

And it was progressives, led by the NAACP and Thurgood Marshall, who successfully challenged the Jim Crow laws that imposed apartheid through much of the country and culminated in Brown v. Board of Education. It was also progressives who finally succeeded in Loving v. Virginia, written by Chief Justice Earl Warren, in declaring unconstitutional laws prohibiting interracial marriage. It was progressives who ultimately overcame strong and sustained conservative opposition to enact the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Our country still has a long way to go to achieve racial equality, but that is not the fault of progressives. In the area of education, it was two 5-4 Supreme Court decisions, with conservatives in the majority, San Antonio Board of Education v. Rodriguez and Milliken v. Bradley, that contributed greatly to separate and unequal schools. In Rodriguez, which was decided in 1973, the court held that disparity of school funding does not violate equal protection. In Milliken, decided the following year, the court ruled that there generally cannot be desegregation efforts that cross school district boundaries. The result in virtually every major metropolitan area is city school systems that are overwhelmingly comprised of students of color spending much less on education than wealthier, largely white suburban school districts.

Application of the Bill of Rights to the states. One of the most important changes in constitutional law occurred in the 20th century, and especially the 1960s, with the Supreme Court holding that most of the Bill Rights is incorporated into the due process clause of the 14th Amendment and applies to state and local governments. It is unthinkable today that state and local governments – where most governing is done – could ignore the Bill of Rights. But it was not until 1925 that the First Amendment’s protection of freedom of speech was applied to the states in Gitlow v. New York. It was not until 1932 that the right to counsel was applied to the states in capital cases in Powell v. Alabama, and not until 1963 that the right to counsel was applied to the states in any case where a criminal defendant faced a possible prison sentence in Gideon v. Wainwright. It was the Warren Court that ultimately found most of the Bill of Rights’ provisions to be incorporated.

And it was the more progressive justices – Earl Warren, William Douglas, Hugo Black – who led this effort. In fact, Thomas has repeatedly taken the position that he does not believe that the establishment clause applies to state and local governments. Simply put, the application of the Bill of Rights to state and local governments was an enormous expansion in the protection of freedom and it was the result of progressive advocacy and decisions.

Freedom of speech. There were not major Supreme Court cases protecting freedom of expression until well into the 20th century. The initial Supreme Court cases about freedom of speech – such as Schenck v. United States, Debs v. United States, and Abrams v. United States, all decided in 1919 – ruled in favor of the government and gave it great latitude to regulate speech. In the 1951 case of Dennis v. United States, the court – over the strong objections of progressives Black and Douglas – upheld convictions of those who had taught the works of Marx, Lenin, and Engels.

The most significant Supreme Court cases advancing freedom of speech were progressive victories. In 1964’s New York Times v. Sullivan, the Supreme Court unanimously, in an opinion by Justice William Brennan, stressed that the First Amendment must be understood “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The court held that civil liability can infringe the First Amendment and limited the ability of public officials to sue for defamation. It is a hugely important decision advancing freedom of speech. (Thomas has called for it to be overruled.)

And in 1971’s New York Times v. United States (the Pentagon Papers case), the court ruled 6-3, over the dissents of three conservative justices, that the government could not enjoin publication of the Pentagon Papers, a history of America’s involvement in the Viet Nam War. It is a crucial case that limited the power of the government to censor the press.

Conclusion.

I selected just three examples where the progressive position prevailed in the Supreme Court and where few would deny that the decisions made the country better. I could give many more examples, such as the expansion of voting rights, the application of equal protection against discrimination based on sex and sexual orientation, the protection of the rights of criminal suspects and defendants, and plenty of others where the progressive position advanced liberty and equality.

My position, of course, is not that progressives have always been right and conservatives always have been wrong. That would be as absurd as Thomas’ unqualified attack on progressivism. My point is that contrary to what Thomas said in his speech at the University of Texas, history has vindicated so many of the positions that progressives have taken. Does Thomas really believe that we were better at the start of the 20th century when women could not vote and racial discrimination was endemic? Does he really believe that progressives have done little to advance the promise of the Declaration of Independence that all people are created equal and that people possess fundamental rights?

Speeches by Supreme Court justices understandably attract a great deal of attention. But I cannot think of a recent talk by a justice that I disagree with more than Thomas’ speech at the University of Texas.

Jodi Kantor and Adam Liptak of the New York Times recently obtained and published the internal memos behind the Supreme Court’s February 2016 order staying President Barack Obama’s Clean Power Plan, the signature environmental policy of his administration. The reporting is significant: this was the first time on the emergency docket that the Supreme Court halted such a major executive regulatory action before an appellate court ruled on it. And the leaked memos offer a rare look at the justices’ private deliberations in doing so.

As someone who has spent considerable time examining the emergency docket, I want to offer some additional context about what the memos show and what they don’t. The New York Times is correct that the court’s ruling – to halt such a pivotal executive action on its emergency docket – was something new. But the emergency docket was long in effect – and the nature of the court’s deliberations on it were hardly unprecedented.

What was actually new in 2016

In October 2015, the EPA finalized the Clean Power Plan, the first federal rule to limit carbon emissions from existing power plants. These were the country’s single largest source of carbon emissions, and the rule was the centerpiece of the Obama administration’s climate agenda. It required states to cut power-sector carbon emissions 32% below 2005 levels by 2030. The Senate had voted twice to kill the rule.

Upon its implementation, 27 states and industry groups immediately challenged the rule in the U.S. Court of Appeals for the D.C. Circuit and asked that court to block it from taking effect while the case was litigated. The D.C. Circuit denied the stay on Jan. 21, 2016. The applicants then turned to the Supreme Court and asked the justices to halt the rule while the D.C. Circuit was still considering the case. On Feb. 9, 2016, by a 5-4 vote, the Supreme Court granted the stay.

The New York Times piece frames this as the moment the court took a wrong turn. In their telling, the justices “bypassed time-tested procedures and opted for a new way of doing business.” The Times treats nearly everything about the 2016 decision as a break from the court’s prior operation: the speed, the secrecy, the lack of a written opinion, the partisan 5-4 split, and the court acting in advance of any appellate court ruling.

The Times is wrong about most of this.

What the Times got right

There was a new aspect of things, and it was significant: nobody had previously asked the court to halt such a major executive regulatory action before any appellate court had ruled on it. And, accordingly, the court had never agreed to do so. West Virginia’s own solicitor general, Elbert Lin, put it plainly in an interview with the Times: “This had never been done.” And as Justice Elena Kagan noted in her memo, it would have been unprecedented for the court to second-guess the D.C. Circuit’s decision that a stay was not warranted without the benefit of a prior judicial decision. That is all accurate: Going back through my dataset of emergency applications to 2000, the court had not granted or denied a stay pending consideration of a major executive regulatory action in that specific posture. In that way, and in that way alone, this was a striking development of the court’s modern emergency docket.

But the deliberative process is not new

Although Kantor and Liptak are thus correct that the nature of what the court was being asked to do was different, they further describe the memos as “nothing like the court’s usual painstaking work.” In support of this claim, they refer to the order being justified in the memos by a blog post and a television interview; point to the justices’ using their first names to refer to one another; and describe expressions of irritation between the justices.

None of those things were novel. Rather, the justices responded deliberately, over five days, through exactly the kind of collegial back and forth that has characterized the emergency docket deliberations for decades.

In February 2026, I examined Justice John Paul Stevens’ papers at the Library of Congress, including his files on emergency applications. What I found was the same process the New York Times describes in 2016. The circuit justice wrote a detailed memo laying out the facts and a recommendation, colleagues responded with their own memos, and votes sometimes changed before the final order issued.

Of the factors Kantor and Liptak cite, none of these were unusual either. First, the justices cited outside sources in their memos. In the 2002 emergency application in Forrester v. New Jersey Democratic Party, for example, which asked the court to block the substitution of candidates on the New Jersey Senate ballot, Stevens circulated a memo to the conference that quoted at length from a New York Times article on the New Jersey ballot fight as evidence that “it is well recognized in New Jersey that strict compliance with election deadlines is not required when there is no significant impingement on the election process.”

(II:881, John Paul Stevens Papers, Manuscript Division, Library of Congress, Washington, D.C.)

A review of the Stevens’ papers also shows that justices signing their first names was entirely standard practice across decades of emergency docket deliberations. Justice Sandra Day O’Connor signed “Sandra,” Justice Antonin Scalia signed “Nino,” and Justice Ruth Bader Ginsburg signed “Ruth.”

(II:833, John Paul Stevens Papers, Manuscript Division, Library of Congress, Washington, D.C.)

A first name signature may simply indicate that the justice signed the memo personally rather than having a clerk do so.

Finally, and of seeming greater importance, the New York Times emphasizes as unusual the justices’ tones throughout their memos. Specifically, Kantor and Liptak describe the chief justice circulating “a blast of a memo,” characterize him as acting like a “bulldozer,” and suggest that he “sound[ed] irritated” by Breyer’s proposed alternative order, which would have denied the stay but allowed the applicants to return to the court if circumstances changed. The article claims that Roberts’ arguments for halting the president’s executive action were “forceful, quick, and filled with confident predictions,” and that he “weighed no potential downsides of his proposal and considered no alternatives.”

But, again, the justices handled this case the way they handled prior ones on the emergency docket. In Moore v. Texas, a 2002 capital case in which Curtis Moore sought a stay of execution pending the court’s decision in Atkins v. Virginia, Justice Antonin Scalia wrote to his colleagues that “John” (Justice Stevens) “greatly overstate[d]” the evidence of Moore’s intellectual disability, that “[Stevens’] theory is mistaken,” and that Stevens’ reading was “surely not the law.” That is considerably more pointed and personal than anything Roberts wrote in his memos.

(II:859, John Paul Stevens Papers, Manuscript Division, Library of Congress, Washington, D.C.)

Perhaps most significantly, the legal standards invoked in 2016 were no different than in years past. On the emergency docket, the circuit justice always writes the initial memo, lays out the facts, and applies the four-factor framework on granting a stay: whether there is a reasonable probability of cert, a fair prospect of reversal, the prospect an applicant will suffer irreparable harm, and a balancing of the equities. Roberts did exactly that.

Reading Roberts’ memos without that context might make the EPA case seem like an outlier. But, in that regard, it most certainly was not.

So what was different?

What is likely driving the reaction to Roberts’ memo is not its tone but its substance and the outcome. As described earlier, the stay stopped Obama’s signature environmental policy. In the memo, Roberts argued irreparable harm on behalf of the coal industry, citing cost estimates as high as $480 billion and warning that compliance with a regulation later found unlawful would be irreversible. That analysis looks very different in the current moment, when the same framework has been applied in ways that increasingly favor executive actions by President Donald Trump.

The question of whether irreparable harm is being assessed consistently, regardless of who is asking and what they are asking for, is a legitimate and important one. But that is a conversation about how the legal standards have been applied over time, not about whether the chief justice was a “bulldozer” in these memos.

Lastly, the New York Times acknowledges that “it is not known whether the other members of the conservative wing, Justices Antonin Scalia and Clarence Thomas, prepared memos. Likewise, it is not known whether the court’s fourth liberal, Justice Ruth Bader Ginsburg, circulated her own memo.” That acknowledgment deserves more attention than it receives in the piece.

In every case I examined in the Stevens’ papers, every participating justice circulated a memo, even if just a single sentence: “I vote to grant the stay.”

(II:881, John Paul Stevens Papers, Manuscript Division, Library of Congress, Washington, D.C.)

Given this, what the New York Times has published is not a complete record, and conclusions about the tenor, balance, or reasoning of the full conference remain partial.

In other words, none of this answers the ultimate question: why did the justices grant relief in this unprecedented posture? The New York Times frames this narrative as a clash between Roberts and Obama, or as between the chief justice’s institutional instinct to rein in executive action and a president who had promised to act with or without Congress. It is a compelling story, but the memos themselves cannot carry it. Whatever you think of the outcome, they do not show a court plucking a result out of the air. They show justices citing precedent, applying the four-factor framework, and debating whether to wait for the D.C. Circuit to act. Of course, one can disagree with the precedents the justices invoked or with how they applied them. But the deeper question, why the court granted the ask and why at that moment, the memos do not resolve.

What the memos actually show

The New York Times casts the 2016 stay as the origin point of the modern emergency docket, the moment the justices “bypassed time-tested procedures and opted for a new way of doing business.” That framing is too simplistic. The procedures were not bypassed: the memos, the back-and-forth, the circuit justice recommendations, the confident predictions, the engagement with colleagues by name – this had long predated February 2016.

What was genuinely new was the question the court was asked to answer: whether to halt a sweeping federal regulatory program before any appellate court had reviewed it. And, admittedly, the court’s answer mattered. The justices could have denied the application and waited for the D.C. Circuit to rule. By doing otherwise, they established that this kind of relief was available, and litigants have been asking for it ever since. That is a significant development in the emergency docket’s history. But the court did not stumble into it. It deliberated carefully, in exactly the way it always had.

The dispute began approximately three years ago, when a Maryland woman, identified only as T.M., was involuntarily admitted to Baltimore Washington Medical Center after experiencing a psychotic episode. Over the next three months, T.M. and her family filed several state and federal lawsuits against the hospital, challenging doctors’ treatment plan and seeking to secure her release. Most relevant to the Supreme Court case is the petition she filed in Maryland state court in May 2023, in which she alleged that her involuntary commitment was unlawful.

While that petition was pending, T.M., her family, hospital staff, and attorneys negotiated a settlement agreement that outlined conditions under which T.M. could be released, including that she would continue taking medicine prescribed by the hospital and begin seeing a new psychiatrist. In June 2023, the state judge assigned to T.M.’s case entered this agreement as a consent order, and T.M. was released from the hospital.

Once home, T.M. filed a new federal lawsuit against Baltimore Washington Medical Center, the University of Maryland Medical System, and leaders of those institutions over the consent order, alleging that she had agreed to it under duress and that it “violates the Maryland Declaration of Rights and the Due Process clause of the Fourteenth Amendment and is therefore unconstitutional, unenforceable, and void.” T.M. also appealed the order to Maryland’s intermediate appellate court.

On Monday, the Supreme Court considered whether T.M.’s federal lawsuit can proceed or if – as a federal district court in Maryland and the U.S. Court of Appeals for the 4th Circuit held – lower federal courts do not have the authority to review it under a legal principle known as the Rooker-Feldman doctrine. That doctrine bars lower federal courts from hearing “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments,” as Justice Ruth Bader Ginsburg summarized in a 2005 case called Exxon Mobil Corp. v. Saudi Basic Industries Corp.

The specific question before the justices on Monday was whether the Rooker-Feldman doctrine applies when the state-court judgment at issue – here, the consent order – remains subject to further review in state courts.

Lisa Blatt, who argued on behalf of the hospital and health system, asserted that a ruling for her clients would not undo the court’s effort to narrow the application of the Rooker-Feldman doctrine in Exxon. In Exxon, the court held that “Rooker-Feldman almost may never apply,” Blatt said, but that doesn’t mean it never applies, and “it happens to apply” to T.M.’s case.

Blatt emphasized that Congress explicitly said it “wanted no federal review of state court judgments until the state’s highest court has had the opportunity to correct any errors” in the federal statute that provides a basis for the Rooker-Feldman doctrine. She contended that allowing lower federal courts to review a judgment that’s still under review in the state courts would “damage[] the integrity of the state appellate process.”

Elizabeth Prelogar, who argued on behalf of T.M., offered a different take on that federal statute, which provides that “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court.” Prelogar contended that this addresses the Supreme Court’s ability to review state-court judgments, not the work of all federal courts. “Section 1257 says nothing at all about district court jurisdiction when there’s no final judgment of a state high court,” she said.

Although several justices noted that lower courts struggle to apply the Rooker-Feldman doctrine, they questioned whether embracing T.M.’s vision of the doctrine would actually do anything to clear things up. For example, Justice Samuel Alito said that he doesn’t “really see a rational basis for drawing a distinction between a case where the state court proceeding has concluded and a case where the state court proceeding is ongoing.” And Justice Elena Kagan observed that “[t]here are a lot of things that have confounded the lower courts on Rooker-Feldman, but I’m not sure that this question necessarily is one of them.”

Justices Sonia Sotomayor and Brett Kavanaugh pressed Prelogar on the “value,” as Sotomayor put it, of “having a federal district court and a state appellate court simultaneously reviewing a state court judgment.” Prelogar responded that “there is a significant value in ensuring that federal courts are available to vindicate federal rights, including when state court judgments themselves give rise to that kind of constitutional violation.”

Whether to overrule the Rooker-Feldman doctrine altogether was not a question presented in the case, but multiple justices nonetheless brought up that possibility during Monday’s debate. Prelogar emphasized that the court does not need to overrule the doctrine in order to side with T.M., but she also described it as “egregiously wrong” and “out of sync with modern precedent about how the Court articulates jurisdictional rules.” She noted that overruling Roe v. Wade was not a question presented in Dobbs v. Jackson Women’s Health Organization, the 2022 case in which the court overturned the constitutional right to abortion. “So the Court has sometimes, when it’s delved into a doctrine, decided that it makes sense to reconsider precedent,” Prelogar said.

For her part, Blatt asserted that “[t]his is not Dobbs” and “[t]his is not Roe v. Wade,” and she urged the court not to overrule the Rooker-Feldman doctrine. Indeed, Blatt went so far as to proclaim that the justices are “not going to overrule Rooker” but then apologized and adjusted her statement to “I don’t think you’re doing to do that” “in an April case.” Several of those present at the argument laughed long and hard at Blatt’s comments before Alito responded, “Don’t dare my colleagues.”

The court’s ruling is expected by early July.

***

In St. Mary Catholic Parish v. Roy, the court granted a petition for review filed by a Catholic preschool in Littleton, Colorado, which argues that its exclusion from Colorado’s universal preschool program is a form of religious discrimination in violation of the First Amendment, because Colorado will not provide it with an exemption from rules that would require it to admit everyone – including LGBTQ children and children with LGBTQ parents.

The U.S. Court of Appeals for the 10th Circuit rejected the preschool’s argument. In its view, the state’s conditions were neutral and generally applied to every preschool, regardless of relgion – the kind of government actions, the Supreme Court held in 1990 in Employment Division v. Smith, that normally do not violate the Constitution.

The preschool came to the Supreme Court last fall, asking the court to take up the case. Although the justices on Monday turned down the preschool’s request to reconsider Employment Division v. Smith, they will hear oral arguments in the case .

The court also granted review in Beaird v. United States, in which Kendrick Beaird was convicted of being a felon in possession of a gun. Beaird challenged (among other things) the constitutionality of his conviction, arguing that it violated the Second Amendment, but the court agreed only to take up his challenge to an enhancement to his sentence based on his possession of a magazine classified under commentary to the U.S. Sentencing Guidelines as a “large capacity magazine.” The justices on Monday agreed to decide whether a 1993 case on how courts should deal with commentary to the Sentencing Guidelines still governs.

***

In District of Columbia v. R.W., the justices summarily reversed a ruling by the D.C. Court of Appeals – Washington, D.C.’s highest court – that had thrown out the convictions of a teenaged driver, known in court papers as R.W., for (among other things) unauthorized use of a vehicle.

R.W. was arrested in 2023 when a police officer, responding to a call to “check out a suspicious vehicle at a suspicious address,” saw two people running from a parked car. When the car then began to back up, with its rear door still open, the police officer blocked the car from going any further, got out of his own car, told the driver – R.W. – to put his hands in the air, and drew his gun.

R.W. argued that the arresting officer did not have reasonable suspicion to stop him, and he asked the trial court to exclude all of the evidence that the police acquired after he was told to put up his hands. The trial court rejected that request, and R.W. was adjudicated to be delinquent and sentenced to one year of probation. R.W. appealed the denial of his request to the D.C. Court of Appeals, which reversed.

The D.C. Court of Appeals agreed with R.W. that the police officer did not have reasonable suspicion to stop him. It reasoned that the trial court should not have considered the radio call that the officer received, which dispatched him to investigate a “suspicious vehicle.” First, the court observed, the police officer did not know why the call was made or why the vehicle was considered suspicious. Second, the court continued, the radio call instructed the officer “to look only for a suspicious vehicle” – a direction that “was so broad as to be useless.”

The D.C. Court of Appeals also held that the trial court should not have relied on the flight by the two other passengers as the police officer arrived on the scene. “Because here the only fact associating R.W. and the other two occupants of the vehicle at the time of the seizure was their altogether mundane presence in the same car,” the police officer could not reasonably infer that R.W. and those occupants “were associated in a suspicious manner.”

The District of Columbia came to the Supreme Court in late August, asking the justices to weigh in. In a six-page, unsigned opinion, the court reversed. The key question, in the court’s view, was whether the officer “had a reasonable suspicion that R.W. was engaged in criminal wrongdoing” before he told R.W. to put his hands up. And for the court, the answer to that question was yes. Even if it weren’t enough that the officer had seen “every person in R.W.’s car respond strangely to an approaching police car,” the court wrote, R. W.’s conduct after that – backing up with the door open – “strongly suggested that he was (like them) engaged in unlawful conduct he wished to hide from police.” “Pretending that the most revealing aspect of the encounter did not happen is incompatible with the totality-of-the-circumstances approach required by our precedents,” the court concluded.

Justice Sonia Sotomayor indicated, without more, that she would have denied the District’s petition.

Justice Ketanji Brown Jackson dissented from the court’s decision, in a three-page opinion. In her view, the court should not have intervened, much less done so without additional briefing and oral argument. The D.C. Court of Appeals, she suggested, had applied the right test; the Supreme Court was simply quibbling with how it had done so. “Even if I would have assigned more heft to a particular fact in my own first-instance assessment,” she concluded, “I would not word-smith a lower court in this fashion.”

***

Additionally, the court declined to hear the case of Castro v. Guevara, arising from the Hague Convention on the Civil Aspects of International Child Abduction. Sotomayor wrote a statement regarding the court’s denial of review in that case. Under the convention, children who are wrongfully removed from their “country of habitual residence” are generally returned to that country so that any custody disputes can move forward there. The convention carves out several exceptions, however, including when the parent seeking the child’s return does not file a petition with the court for more than a year after the child’s removal and the child is “well settled” in the new country.

The case has its roots in efforts by Jose Leonardo Brito Guevara to have his then-3-year-old daughter returned from the United States, where her mother took her without his permission in November 2021, to Venezuela. Brito began those efforts soon after she left Venezuela, but his attempts to work through diplomatic channels moved slowly and ultimately proved fruitless, as did his endeavors to reach an agreement with the child’s mother, Samantha Estafania Francisco Castro.

Brito then went to federal court in Texas to seek the child’s return under the Hague Convention. The case eventually moved to a different district court in Texas, which did not hold a trial until March 2024 – more than a year after Brito filed his petition for her return and nearly two-and-a-half years after the child’s abduction to the United States.

The district court denied Brito’s request for the child’s return. Although Brito had provided enough evidence that the child had been wrongfully taken from Venezuela that she should normally be returned, the court ruled, she should stay in the United States because she was well settled there.

A divided U.S. Court of Appeals for the 5th Circuit reversed that ruling. The majority concluded that it was “not persuaded that” the child had “formed such deep or enduring ties to her new environment that returning to her home in Venezuela would contravene her best interests.”

Castro then came to the Supreme Court in December, asking the justices to decide whether the court of appeals had applied the correct standard of review – specifically, whether it properly reviewed the district court’s decision “de novo” – that is, starting from a clean slate – or whether it should have instead determined only whether the lower court was clearly wrong.

After considering the case at four consecutive conferences, the court turned down Castro’s petition for review without comment. In a four-page statement, Sotomayor emphasized that the question at the center of the case “warrants this Court’s attention,” particularly because the 5th Circuit’s ruling “may be erroneous.” But, she said, this case might not be the right one to take up the issue because the child returned to Venezuela (following an order by the Supreme Court on its interim docket) in January. Given that, if the court were to grant review in this case, she observed, the determination of whether she is “well settled” in the United States “would look very different.”

***

Finally, the court turned down a request to decide whether a Massachusetts school district violated a couple’s parental rights when it encouraged their child to socially transition over their objections and also hid that fact from them.

The question came to the court in a federal civil rights lawsuit filed in 2022 by Stephen Foote and Marissa Silvestri, who contended that the Ludlow School Committee followed a protocol that directed school staff to use a student’s preferred name and pronouns without notifying that student’s parents. In so doing, the couple argued, the school district violated their parental rights under the Constitution, including both their right to direct their child’s upbringing and education and their right to make medical and mental health decisions for their child.

The lower courts rejected that argument, prompting the parents to come to the Supreme Court in July. They told the justices that the parental rights question is “urgent” and emphasized that “[m]ore than 1,000 public school districts have adopted secret transition policies, resulting in dozens of lawsuits and harming countless children.”

The school district countered that the protocol that the parents claim the school district followed “does not exist.” Instead, it said, the school staff simply tried to apply state law and regulations, along with guidance from the state department of education, to the child in this case. And even if the protocol did exist, it continued, the parents’ challenge is a narrow one, because they are not challenging the state law and regulations on which it would be based.

After considering the case at 13 consecutive conferences, the justices turned the couple’s petition for review down without comment. The order came less than two months after the justices granted a similar request on their interim docket from California parents. The majority in that case explained that those parents were likely to prevail on their claim that California’s policies violate the parents’ right to freely exercise their religion and their right to “direct the upbringing and education of their children.”

The future of President Donald Trump’s executive order attempting to limit access to birthright citizenship is now positioned for a final decision from the Supreme Court. Questioning from the justices, during approximately two hours of oral arguments in Trump v. Barbara, suggests an icy reception for the Justice Department’s claim that the constitutional guarantee of citizenship turns on an innovative interpretation of the legal concept known as “domicile.” Without acceptance of that interpretation by the court, the Trump administration is unlikely to successfully defend the president’s directive.

***

Trump’s executive order, which he issued on January 20, 2025, claims that the 14th Amendment grants U.S. citizenship to children born in the United States depending on the citizenship or immigration status of their parents. The amendment’s citizenship clause provides that a person becomes a citizen “of the United States and the state wherein they reside” if they are born in the United States and are “subject to the jurisdiction thereof.”

To successfully defend the constitutionality of Trump’s order, U.S. Solicitor General D. John Sauer will have to convince a majority of justices on three fronts. First, that “subject to the jurisdiction thereof” means a person is “domiciled” in the United States. Second, that domicile should be interpreted to require legal permission to live in the United States indefinitely as a permanent resident, the most privileged form of immigration status, rather than temporarily or altogether without the federal government’s permission. Third, that children born in the United States acquire citizenship at birth only if their mother was domiciled in the country at the time of the child’s birth.

The text of the citizenship clause does not use the term domicile, but the Trump administration argues that it is implied. Sauer, who is the federal government’s lead attorney before the Supreme Court, argued that “reside,” which does appear in the citizenship clause (in terms of state citizenship), “means domicile in the Constitution.” For children to acquire U.S. citizenship at birth, the constitutional provision “presupposes domicile,” he told the justices. Though none of them openly embraced Sauer’s effort to read domicile into the 14th Amendment, none explicitly rejected his argument either.

Where several justices instead displayed skepticism was in the government’s proposed definition of domicile. The term generally refers to where a person lives and intends to continue living. As the court explained in a 1983 decision, domicile describes a person’s “permanent home and place of habitation. It is the place where he intends to remain, and to which he expects to return when he leaves.” This broad definition emphasizes an individual’s decision to make that person’s home in a particular location and continue doing so into the future. By contrast, Sauer claimed that domicile requires legal permission to live in a particular location, and that permission is dictated by immigration law. As he told the justices, domicile “is lawful presence with the intent to remain permanently.”

During oral arguments, several of the justices signaled their disagreement with Sauer’s definition of domicile. Without mentioning a lawful-presence component, Justice Samuel Alito stated that “a person’s domicile is the place where he or she intends to make a permanent home.” Meanwhile, Justice Neil Gorsuch seemed to directly reject Sauer’s inclusion of a lawfulness requirement. Gorsuch suggested that the legality of a person’s presence in the United States is irrelevant to domicile because in 1868, when the 14th Amendment was added to the Constitution, there were few federal laws regulating migration. Unlike today, when a complex series of federal immigration laws impose stringent restrictions on migrants and prospective migrants, “we really didn’t have laws like that” in 1868, Gorsuch told the solicitor general, “so why wouldn’t we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial”?

Sauer disagreed, arguing that the citizenship clause incorporates immigration restrictions enacted by Congress. Justice Ketanji Brown Jackson also clearly took issue with this claim. According to Jackson, the 14th Amendment was added to the Constitution “to prevent future Congresses from being able to affect citizenship.” (Sauer responded just as plainly, saying, “no, I don’t think so.”)

Whatever definition of domicile the justices accept, if they agree with the Trump administration that domicile is a required component of birthright citizenship’s constitutional analysis, they will need to then address whose domicile matters. No one disputes that domicile requires assessing where a person chooses to live, so it’s not surprising that they also agree that a child who is too young to decide where to live can’t form a domicile. Instead, a child’s domicile necessarily depends on a parent’s domicile. Responding to questions from Gorsuch, Sauer argued that historical sources don’t distinguish “between mother or father.”

There are two problems with Sauer’s claim that domicile doctrine treated mothers and fathers equally. First, it conflicts with Trump’s own executive order, which emphasizes the mother’s immigration status. According to the president’s interpretation of the 14th Amendment, a child born in the United States does not acquire citizenship at birth if the mother was not domiciled in the United States because she was living in the country unlawfully or with temporary authorization. Sauer likewise claimed that “it’s really the mother’s domicile, I think, that would matter.” Second, Sauer’s assertion at oral arguments clashes with the Justice Department’s written argument. Swiss jurist Emmerich de Vattel, whose The Law of Nations the government discusses repeatedly in its brief, left no doubt that legal doctrine treated the father’s status as more important than the mother’s. As Vattel explains in a section that the Justice Department’s brief cites, “children follow the condition of their fathers.”

Thus, the administration faces an uphill battle. It must not only convince the court to adopt its definition of domicile, but convince a majority of justices that the mother’s domicile is what counts despite no mention of this in the 14th Amendment. The oral argument suggests the government won’t succeed. But we will only know for sure when the court releases its opinion, which likely won’t be before late June.

At the Court

On Friday, the court released its unanimous opinion in Chevron USA Inc. v. Plaquemines Parish, Louisiana, holding that oil and gas companies can move a lawsuit seeking to hold them liable for damage to the Louisiana coast back to the federal courts. For more on the decision, see the On Site section below.

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

Later on Friday, the court indicated that it may announce opinions on Wednesday at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30 a.m.

As noted above, today is the start of the April sitting. The justices will hear argument this morning in two cases: Sripetch v. SEC, on whether the Securities and Exchange Commission can use disgorgement to force a wrongdoer to turn over its profits to the government without showing directly that the wrongdoer’s activities harmed its customers; and T.M. v. University of Maryland Medical System Corp., on whether the Rooker-Feldman doctrine, which limits lower federal courts’ authority to review state-court judgments, applies when such judgments remain subject to further review in state courts.

Tomorrow, the justices will hear argument in Federal Communications Commission v. AT&T, Inc., on whether the FCC violates the Seventh Amendment’s guarantee of a right to a jury trial when it imposes fines for violations of federal communications laws.

And on Wednesday, the justices will hear argument in Blanche v. Lau, on the rights of lawful permanent residents who have been accused of committing a crime that puts them at risk of being removed from the country.

Morning Reads

The Inside Story of Five Days That Remade the Supreme Court

Jodi Kantor and Adam Liptak, The New York Times (paywalled)

The New York Times obtained memos exchanged between the justices over five days in the winter of 2016, when the court was addressing “President Barack Obama’s Clean Power Plan, his signature environmental policy.” The memos reveal the justices’ debate and how they came to their ultimate (and previously unexplained) decision to halt Obama’s program by a 5-4 vote, “act[ing] before any other court had addressed the plan’s lawfulness.” “‘I recognize that the posture of this stay request is not typical,’” the chief justice wrote when “warned … that he was proposing an unprecedented move.” “But he argued that the Obama plan, which aimed to regulate coal-fired plants, was ‘the most expensive regulation ever imposed on the power sector,’ and too big, costly and consequential for the court not to act immediately.”

The night the justices released their decision, according to the Times, “marks the birth, many legal experts believe, of the court’s modern ‘shadow docket,’ the secretive track that the Supreme Court has since used to make many major decisions, including granting President Trump more than 20 key victories on issues from immigration to agency power.” And the papers obtained by the Times “expose what critics have called the weakness at the heart of the shadow docket: an absence of the kind of rigorous debate that the justices devote to their normal cases.”

The Times published the papers in full, as well as a breakdown of key parts.

Supreme Court Justices Alito and Thomas not planning to retire this year, sources say

Jan Crawford, CBS News

CBS News reported Friday night that neither Justice Samuel Alito nor Justice Clarence Thomas will retire this year, citing sources close to the two men. “That indicates that this year, with the midterm elections on the horizon, President Trump will not be able to plan on an opportunity to make his fourth nomination to the Supreme Court. … Trump was able to fill three seats on the court during his first term, nominating Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.”

Kagan screamed so loudly at liberal ally after Dobbs leak the ‘wall was shaking' book claims

Ashley Oliver, Fox News

A forthcoming book on Justice Samuel Alito, set for release on Tuesday, claims that “Justice Elena Kagan’s frustrations boiled over in the aftermath of the Dobbs opinion leak in 2022, leading her to allegedly scream ‘so loudly’ at Justice Stephen Breyer that the ‘wall was shaking,’” according to Fox News. “The Supreme Court’s deep division on abortion was clear at the time, but the book reveals that a typically unified liberal bloc was also fractured” over how to respond to Alito’s request “to speed up writing their dissent because of security threats.” Author Mollie Hemingway wrote that the screaming incident happened when Kagan was trying to convince “Breyer not to accommodate the majority” by quickly finalizing the dissent.

This tariff-refund portal is about to be America's hottest website

Alina Selyukh, NPR

On Monday, U.S. Customs and Border Protection will launch the first phase of its tariff refund process, a process that became necessary when the Supreme Court struck down President Donald Trump’s signature tariffs. “U.S. Customs has estimated that it owes a total of $166 billion in tariff refunds, and the agency’s legal filings suggest that the initial phase would tackle the majority of affected imports. On Tuesday, a Customs official told a judge that the vast majority of eligible importers signed up for electronic payments, as the agency is requiring, and that group is owed about $127 billion,” according to NPR.

Transgender athlete focuses on what may be her last track season as Supreme Court ruling looms

John Raby, Associated Press

As the Supreme Court prepares its ruling in two cases on state laws barring transgender athletes from competing on women’s and girls’ sports teams, one of the challengers in the cases, Becky Pepper-Jackson, “the only trans person who has sought to compete in girls sports in West Virginia,” spoke with the Associated Press about her high school track season and what it’s like waiting for the justices’ decision. “I can’t make their decisions for them, so I just have to wait and see what they’ll say,” Pepper-Jackson said. “I try not to look at it [as] if this could be my last season.” The AP noted that “Pepper-Jackson has won both the discus and shot put in her first two meets” this season.

On Site

Opinion Analysis

Court unanimously sides with oil and gas companies in suit over damage to Louisiana coast

The Supreme Court on Friday sent a lawsuit seeking to hold oil and gas companies liable for damage to the Louisiana coast back to the federal courts by a vote of 8-0, with Justice Samuel Alito not participating because he owns stock in the parent company of one of the defendants in the case.

Case Preview

Court to consider rights of lawful permanent residents accused of committing a crime

During oral argument on Wednesday in Blanche v. Lau, the justices will consider the rights of lawful permanent residents who have been accused of committing a crime that puts them at risk of being removed from the country.

From the SCOTUSblog Team

The Brazilian Federal Supreme Court

For SCOTUSblog’s series on different supreme courts around the world, Zachary Shemtob spoke with Professor Diego Werneck Arguelhes, dean of the law faculty at the Insper Institute for Education and Research, about the Brazilian Federal Supreme Court.

A Closer Look:

Justice Thomas at UT Austin

Last week, Justice Clarence Thomas gave an address at the University of Texas at Austin to celebrate the 250th anniversary of the signing of the Declaration of Independence, and in doing so remarked on the role of the court, government, and courage – or the lack thereof – to live out what he sees as the founders’ ideals.

The longest-serving justice on the court was welcomed by a standing ovation from students, conservative lawmakers, judges (including UT Law alumna Judge Edith Jones), and Republican megadonor Harlan Crow. Meanwhile, some UT students protested outside the venue, holding signs like “Stop the cuts” (a reference to UT’s consolidation of certain departments and programs) and “Clarence Thomas out of UT!”

The appearance was also notable for being in person. In late February, Thomas appeared virtually at a legal conference after security concerns prompted a last-minute switch from an in-person appearance.

Thomas led with his Georgia childhood, describing how “articles of faith,” such as the principles of the Declaration of Independence, were not merely matters of academic debate to the Black community he grew up in. “They were the holy grail, the north star, the rock, immovable and unquestioned.” Even under Jim Crow, he said, the adults around him – including his grandfather, who had no formal education – understood that equality came from God, not from governments who could then withdraw it. “Others with power and animus could treat us as unequal,” he said, “but they lacked the divine power to make us so.”

Thomas then turned to progressivism, which he described as a threat to those principles. President Woodrow Wilson, Thomas said, drew on the model of Otto von Bismarck’s Germany and dismissed natural rights as “a lot of nonsense.” “[Progressivism] holds that our rights and our dignities come not from God, but from government,” Thomas added. “It requires of the people a subservience and weakness incompatible with a constitution premised on the transcendent origin of our rights.” From this premise, Thomas spoke on Plessy v. Ferguson and Buck v. Bell and their connections to eugenics. Thomas remarked that “Stalin, Hitler, Mussolini, and Mao all were intertwined with the rise of progressivism and all were opposed to the natural rights on which our Declaration are based.”

Perhaps of greatest interest to court watchers, however, were Thomas’ remarks on collegiality among the justices. Responding to a student question following his speech about the “warmth and friendship among Supreme Court justices,” Thomas conceded that things have changed. “Oh, I don’t know … when I said a lot of that, it was when I first went to the court, and that was a different court. That was the World War II generation,” he said. “There were people on that court like Sandra Day O’Connor, who I think gets way too little credit for what she did. These are people who respected – they were more in that tradition of a civil society, and who would listen to different points of views.”

Thomas added that in his 47 years in D.C., he has seen many people claiming to be principled but then abandoning this once in positions of power. He credited such changes to being “petrified by criticisms” or seduced by praise and retreating into “the tall grass of big words and eloquent phrases.” One example, he said, pertained to the court itself: “It could not possibly have taken my court 60 years to know that Plessy was a hideous wrong.” Justice John Marshall Harlan’s lone dissent, Thomas noted, made the right answer “obvious, as it so often is … [p]erhaps what stood in the way was cowardice.” Thomas continued that Plessy-era justices, he said, “made American children like me grow up in a racial caste system because it was easier to do nothing than to do the right thing.”

Thomas ended his speech with a direct appeal to the students present. “Nothing in the Declaration of Independence, I now realize, matters without that final sentence,” he said, referring to its closing that “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” “Courage, like cowardice, can be habit forming,” Thomas concluded, “and it will become a part of who you are.”

SCOTUS Quote

“Because I joined the court that dealt with differences as friends, as we respected each other. And I don’t know how that civility – I don’t know how you bring it back in the current environment with social media and name calling and all people accusing each other of various things and animus.”

— Justice Clarence Thomas at University of Texas at Austin

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[Are.na embed — view on SCOTUSblog]

The federal law at the center of the case is known as the “federal officer removal statute.” It gives federal courts the power to hear state court cases filed against “any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.”

More than a decade ago, the parishes, along with state officials, filed lawsuits in state court against oil and gas companies whose predecessors had produced crude oil along the Louisiana coast during World War II. They argued that the companies had violated state environmental laws by either failing to obtain the proper permits or violating the terms of any permits that they did obtain. Moreover, they claimed, the companies’ activities before 1980 were not covered by the laws’ prior clauses protecting them because they did not follow prudent industry practices. The parishes sought to have the companies pay damages, including to restore the areas where the oil companies were operating.

Citing the federal officer removal statute, the companies sought to transfer the case to federal court. They argued that two of Chevron’s predecessors had been federal contractors that had contracts with the federal government during World War II to produce aviation gasoline, known as “avgas,” which (among other things) required them to refine crude oil.

The U.S. Court of Appeals for the 5th Circuit agreed with the companies that, for purposes of the first prong of the federal officer removal statute, they were “acting under” a federal officer. But, the divided three-judge panel concluded, the companies could not show that the lawsuit was “for or relating to” its acts. Although the parishes’ claims “target Defendants’ oil production and exploration practices,” the panel majority reasoned, there is nothing in the companies’ refinery contracts about oil production, and the federal government’s wartime regulation of crude oil production was “minimal,” the majority concluded. Rather, the majority wrote, the companies’ contracts with the federal government gave them “‘complete latitude . . . to forego producing any crude and instead to buy it on the open market.’”

By a vote of 7-6, the full 5th Circuit declined to rehear the case. The oil and gas companies came to the Supreme Court last year, asking it to weigh in – which it agreed to do in June.

In an opinion by Justice Clarence Thomas, the court rejected the 5th Circuit’s reasoning. In his 12-page ruling, Thomas noted that “[t]he phrase ‘relating to’ sweeps broadly,” so that a defendant seeking to transfer his case from state court to federal court is not required to “show that his federal duties specifically required or strictly caused the challenged conduct.” At the same time, Thomas cautioned, the phrase’s “ordinary meaning” “is not ‘so broad that it is meaningless.’” Instead, he wrote, the phrase “requires a connection that is not ‘tenuous, remote, or peripheral.’”

“Chevron’s case,” Thomas concluded, “fits comfortably within” that range because the lawsuit “implicates acts by Chevron that are closely connected to the performance of its federal duties.” “Much of the crude oil that Chevron produced in” the oil field at the center of the dispute “was ultimately used for its own avgas refining.” Moreover, Thomas continued, the parishes’ “suit will challenge Chevron’s actions that allowed it to increase its production of crude oil in” that field “during wartime.”

Justice Ketanji Brown Jackson agreed that the companies could transfer their case to federal court, but for a different reason. In a separate concurring opinion, she argued that it is not enough for there to be an “indirect relationship between the conduct targeted by the lawsuit and the asserted federal duties.” Instead, she contended, the federal officer removal statute requires a cause-and-effect relationship between the duties and the conduct – a test that the oil companies can satisfy here, she concluded.

Professor Arguelhes is Dean of the Law Faculty at the Insper Institute for Education and Research, in São Paulo, Brazil. He obtained his LL.B. and M.A. from the State University of Rio de Janeiro, and his LL.M. and J.S.D. from Yale Law School.

First of all, it seems that Brazil has numerous high courts. Can you help differentiate between these?

Brazil has several high courts: the Federal Supreme Court (STF), the Superior Court of Justice (STJ), the Superior Labor Court (TST), the Superior Electoral Court (TSE), and the Superior Military Court (STM). The Constitution grants each of them ultimate authority within their specific domains. While the latter three are more narrowly specialized, the STF and the STJ have a wider scope. The STJ settles issues of interpretation and application of federal statutes (including criminal law, which, in the Brazilian federation, is necessarily federal law). The STF wields ultimate authority on the interpretation and application of the Constitution. Article 102 of the Constitution establishes that the STF “has, essentially, responsibility for safeguarding the Constitution.”

In Brazil, like the U.S., all judges (including in the STJ and the other high courts) can decide not to apply a statute they consider to be incompatible with the Constitution. But, whenever constitutional review is involved, the final authority belongs to the STF. For example, a criminal case would thus typically end at the STJ, just as a labor law case would end at the TST – but both cases could reach the STF if the respective parties persuaded that court that there is a constitutional issue at stake. Since the STF is the ultimate arbiter of what is a constitutional issue, it has significant room to decide whether to include cases in its jurisdiction or not.

Focusing on the Federal Supreme Court then, how many judges are on this body? How are these judges selected?

According to the Constitution, the STF “is composed of eleven Justices, chosen from among citizens over thirty-five and under seventy years of age with notable legal knowledge and unblemished reputation.”The same article also establishes that the justices “shall be appointed by the president of the Republic, after their nomination has been approved by an absolute majority of the Federal Senate.”

After conducting a public hearing (called a sabatina) in which they interview the presidential nominee, the senators vote using a secret ballot. The appointment procedures have remained stable for more than a century, and the last time the Senate rejected a nominee was in the late 19th Century. However, there is evidence that the Senate’s preferences have been relevant in shaping ex ante the president’s choice, as they consider its political viability. Moreover, in recent years the senators have become more aggressive in this regard. In 2021, the Judicial Affairs Committee dragged its feet and took months to schedule a hearing after President Jair Bolsonaro submitted the nomination of his Solicitor-General André Mendonça (Mendonça was ultimately confirmed). Now, after much deliberate delay the Senate finally scheduled a hearing for the current Solicitor-General Jorge Messias, who was nominated by President Luiz Inácio Lula da Silva in November 2025. It would not be surprising if, in the next decade, we see a presidential nominee being rejected, or at least a president withdrawing a nomination.

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

There is no life tenure in the Brazilian judiciary. All judges, including the STF justices, serve until the mandatory retirement age of 75 (raised from the original text’s 70, by amendment, in 2015). There are no general fixed terms of office. Since 1988, some justices served for half a dozen years, while others have been on the court for decades.

Is this court an appellate body? Or are its cases mostly matters of original jurisdiction?

The STF’s appellate and original jurisdiction are both very relevant. Like the Indian Supreme Court, it has a massive docket, receiving dozens of thousands new cases per year and issuing roughly the same number of decisions. The main force driving these numbers is the STF’s appeals docket. According to the court’s official data, between 2000 and 2025 the STF issued more than 2.9 million decisions, 2.3 million of which were on appeal. Between 2010 and 2025 it received more than 503,000 appeals of different kinds, accounting for around 63% of its docket.

These astonishing numbers must be understood in the context of the rejection of vertical stare decisis, which has been a feature of Brazilian constitutionalism for more than a century. This led to many “repeat cases” reaching the STF on appeal. In 2005, a constitutional amendment gave the STF a couple of important tools to deal with this problem: first, the Sumula Vinculante, the possibility of creating a binding interpretation of a statute or the constitution (by a vote of 2/3 of its justices); and second, a mechanism (Repercussão Geral) that allows the court to decide a single case that involves a question of broad legal relevance and is representative of other appeals in the lower courts – and then have the lower courts decide the pending cases using the “paradigm” ruling created by the court.

In the last five years, probably due in part to the effects of these mechanisms, the numbers have stabilized around 35,000 new appeals per year – still a massive docket when compared to the SCOTUS.

I’ve seen the phrase “abstract review” used – what is that?

The core of the court’s original jurisdiction are its multiple abstract review procedures, designed in the Constitution with unprecedented access and scope. Abstract review allows courts to perform constitutional review detached from any specific, concrete case or controversy. In Brazil, these procedures can be used to challenge a wide set of norms and even omissions by state agents, sometimes just a few hours after their enactment or occurrence. They can be triggered by an expansive list of entities, including all political parties with at least one seat in Congress and some civil society organizations. In this system, it is expected that any relevant political issue will be brought before the court.

As you noted, the STF has the power of judicial (and abstract) review. What other powers does it have?  From what I’ve read, the STF also has the ability to issue warrants and involves itself in trials of politicians – can you tell me about this?

This is a central question to understand the STF’s role in Brazilian politics. While its constitutional review competences are expansive, its arguably most singular feature is its original criminal jurisdiction. As you may know, the STF convicted hundreds of people (including ex-President Bolsonaro) in connection with the January 8, 2023, invasions of the buildings of the three branches of government. In those cases, the court was not just reviewing decisions made by trial judges below. It was acting as the trial court – presiding over investigations, deciding questions of fact, analyzing testimony and documental evidence, issuing injunctions to impose restrictions on the defendants, and issuing a verdict on the merits.

Those cases fell under the STF’s jurisdiction because Bolsonaro himself was one of the defendants. According to the Constitution, the STF has sole, original, and final jurisdiction over criminal investigations and trials of all members of Congress, all members of the president’s cabinet, and the president himself, amounting to more than 600 federal authorities.

These very wide criminal competences have a clear textual basis in the original 1988 constitutional text. But they were also expanded over time, both by formal amendments and by the justices’ own interpretations of their powers. The most important expansion involved establishing that, whenever there is an attack on the court, on the justices, or even on democratic institutions more generally, the chief justice can initiate investigations sua sponte and assign one of their colleagues to preside over them. This expansion was invoked in decisions rendered by the chief justice in 2019 and was confirmed by the full bench court in 2020. This allows a single STF justice to (i) initiate investigations without a request by law enforcement agencies or prosecutors and (ii) still preside over them and even vote on the merits of the case.

This combination creates problems both of separation of powers and excessive judicial prerogatives, as well as impartiality concerns. These expanded criminal competences were a key tool for the court in dealing with mass disinformation and attacks on the justices and the electoral system during the Bolsonaro era (2019-2022) and were originally expected by some to remain limited to that volatile, exceptional period. But, unfortunately, the STF’s power to initiate investigations has now become normalized. The investigations on attacks on democracy initiated in 2019 are still open to this day, and there were other instances, even in recent years, of proceedings being promoted sua sponte by STF justices.

Are cases decided by a simple majority?

Cases that are selected for collective deliberation are decided by the plenary court of 11 justices, which necessarily decides all abstract review cases; or by one of the two five-justice chambers, which focus more on appeals, criminal proceedings, and habeas corpus petitions. These two bodies decide by a majority vote, although there are some specific rules. For example, decisions like prospectively overruling a case require a 2/3 majority.

Historically, however, an average of 90% of STF decisions every year are made by individual justices. This is a traditional, but troublesome feature of the STF. Such delegation appeared as a mechanism to cope with the overwhelming workload – both to screen out repetitive or absurd cases and allow the plenary and chambers to better focus their limited attention on relevant cases, and to allow for the issuing of emergency injunctions before an overworked court could find the time to decide collectively. Over time, however, it became clear that this delegation could (and often was) used even in high profile cases, especially via emergency injunctions. Consider, for example, that a single justice of the STF suspended the appointment of Lula to the cabinet of President Dilma Rousseff in 2016, a decision with clear political implications for her then-ongoing impeachment trial. Individual STF justices loom large in Brazilian politics, regardless of whether their views represent a majority within the court. In my view, this is the main institutional dysfunction in our system.

How is the opinion writer assigned?

The STF is a seriatim court: there is no “opinion of the court,” only individual opinions, similarly to the Supreme Court of the United Kingdom [and the U.S. Supreme Court in its early years]. The final decision is a sum of individual position; there is no institutional requirement to even try to write an opinion representing the shared views of a majority. In recent years, the justices began to collectively agree to “theses” when deciding – general statements consisting of the rule or interpretation being adopted by the majority in that case. These theses, however, still fall somewhat short of a true collective opinion, since they reflect a shared outcome more than a shared reasoning and ratio decidendi.

Still, one justice will have a specific role in writing the final decision. They will write the ementa – a summary of the decision that obtained a majority within the court – and their individual opinion will be the first one in the full text of the published decision. That justice is either the case rapporteur, if he is in the majority, or the first justice in the majority who disagreed with the rapporteur. It might sound confusing to a U.S. audience to speak of the “first” to disagree, so I need to get into some detail here.

Unlike in the U.S. Supreme Court, a rapporteur is immediately assigned when a case enters the STF’s docket and has discretion to decide when the case is ready for judgment, presenting to their colleagues a summary of the facts and arguments as well as their opinion on the case when judgment begins.

Moreover, all judgments in Brazil are public – not just the oral arguments, but the formal deliberations between the justices themselves. Anyone can attend sessions and see them deliberating live. This is a constitutional requirement. But the STF took publicity a step further: since 2002, it broadcasts all its deliberations live on a public channel (TV Justiça) and, since 2006, on its official Youtube channel as well.

When a judgement begins, justices announce their opinions according to a fixed voting order – beginning with the case rapporteur and then proceeding in order of reserve seniority. The chief justice (a position in which the justices rotate every two years) is the last to vote. Since 2020, both in the plenary court and in chambers the justices can adopt an alternative procedure to decide – the “virtual plenary.” The VP is an online, asynchronous voting platform in which judge upload their opinions within a certain time frame, with no fixed voting order, no public interaction or deliberation between them.

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

Strictly speaking, since there is no “opinion of the court,” all opinions issued by the individual justices are either concurrences (if they converge on the winning outcome) or dissents (if they endorsed a defeated outcome). There have been a couple recent attempts by the justices to present collectively written opinions, but this practice is not yet institutionalized.

Dissenting is not seen as exceptional, and it does not necessarily imply strong internal disagreement or outspoken criticism of the majority. Still, it is overall less common than in the SCOTUS. According to a recent study, analysing over 423,00 collective decisions between 1988 and 2023, more than 380,000 (90%) were unanimous and 33,000 (8%) had a single dissent. When looking just at the 70,000 plenary decisions, 74% were unanimous. Of the 26% non-unanimous rulings, 19% had a single dissent, and around 1% were “close” decisions, in which the result would be different if a single judge changed their position.

When looking at those numbers, we should keep in mind the sheer size of the STF’s docket. Unlike the SCOTUS, which only decides cases that involve real legal controversy or political magnitude, the STF’s plenary and especially the two chambers often decide cases that would be considered “easy,” and perhaps should not have reached the court. According to the STF’s official data, in around 27% of the more than 8,600 abstract review decisions made since 1988 there was no decision on the merits, typically due to procedural irregularities. This shapes the overall dissent rates described above, as many of the cases were relatively uncontroversial. In contrast, in cases that the legal community would consider “hard,” dissents are not uncommon.

What were some major issues recently decided by the STF?

In 2019, the STF expanded the boundaries of the crime of “racism” so as to include homophobia and transphobia. Racism was already considered a crime in the Constitution and in statutes, but the latter two forms of discrimination were not, and the STF decided that the lack of a statute criminalizing homophobia and transphobia was an unconstitutional legislative omission. Judicial review of legislative omissions is in principle something the court is empowered to do, under some circumstances, in our constitutional system.

Also in 2019, the STF reversed itself on a key issue affecting Brazilian politics. A 2016 precedent allowed jail sentences to begin after a court of appeal confirmed the conviction but before all appeals had been exhausted. That rule had made it possible for former President Lula to begin serving jail time a few months before the 2018 elections; then, in 2019, the STF’s change of heart allowed him to wait on his appeals outside of jail.

In 2020, during the COVID-19 pandemic, the court voided a presidential decree prohibiting states and municipalities from adopting social distancing measures without prior authorization from the federal executive. That was the initial salvo in a series of cases in which Bolsonaro lost in the court on issues regarding public health and the Brazilian federation.

In 2025, the STF established a detailed set of rules for the liability of digital platforms regarding user-posted content that qualifies as disinformation, hate speech, or threats to democracy – issues that had not yet been specifically regulated by Brazilian laws on platform governance. It did so quite openly as rulemaking, not just adjudication, even though the justices emphasized the new rules were valid only until Congress legislated on the topic.

I have chosen just a few of the court’s high-profile cases from the last few years. As you can see, the justices have been far from shy in tackling controversies of extreme political and social relevance.

What have been some particularly controversial issues decided by this court historically?

In the 1990s, the STF was much more restrained. It had almost no fundamental rights cases. But even that “shy” court took the unprecedented step of intervening in the impeachment proceedings against President Fernando Collor [de Mello], in 1992. Accepting a petition by the president arguing that congressional rules of procedure gave him too little time to prepare his defense, the STF ordered it to expand the deadline. Collor petitioned the court again after he was convicted by the Senate and lost the right to run for office for eight years, despite having resigned from office just before the verdict. But here the STF sided with the Senate, upholding the restriction on Collor’s political rights. Two decades later, in 2015 and 2016, the court would once again reshape congressional procedures on impeachment, now during the trial of President Rousseff.

In the last two decades, the court decided, for example, that representatives who changed parties between elections would lose their mandate (2007); that the amnesty law enacted by the military dictatorship (which prevented the prosecution of crimes of torture committed by government personnel, for example) was compatible with the Constitution (2010); that the Constitution directly guaranteed the right of same-sex couples to enter a civil union (and ultimately convert it into marriage, for all legal purposes) (2011); that a woman or her physician could not be punished for performing an abortion in cases where the fetus had anencephalia (2012); and that race-based quotas in admissions to higher education were constitutional (2012).

The Supreme Court of the United States is often seen as partisan. Does the STF have a partisan reputation (especially with regard to curbing political corruption)?

I see the STF as a very political court – although not in the sense of being partisan. From an empirical perspective, despite some evidence of ideological voting in the STF, focusing simply on the appointing president (or the appointing president’s party) does not explain much in terms of how the justices vote. This is probably due, at least in part, to the fact that we have a multiparty presidential system, in which no single party holds a majority in Congress and therefore all governments must build a coalition to approve their initiatives in the legislature – including their STF appointments, who are therefore less likely to perfectly correspond to the preferences of the governing party.

But the justices are closely attuned to the political winds, responding sometimes to even the smallest changes in current affairs. Several justices are directly engaged with political disputes on a daily basis beyond court procedures. Some issue comments on current affairs and meet daily with politicians to discuss bills or policies – and sometimes even appointments to lower courts, public companies, and other bodies.

Moreover, the court has visibly adjusted its caselaw on high-profile issues with an eye on the current political scenario and public opinion, as it was the case with the short-lived precedent that allowed Lula to begin serving jail time even before his appeals were exhausted in 2018. I think these features of intense, real-time attunement to current politics are becoming more visible to the public. For example, a national survey in 2021 found that almost half of the respondents agreed with the idea that “the STF Justices are just like other politicians” – and that was a time when the court was at the peak of its popularity, due to its important decisions during the covid-19 pandemic.

I think I know the answer to this one, but would you say the STF is considered a particularly powerful institution – say, compared to the president of Brazil or the National Congress?

Definitely. The STF is an extremely powerful institution, and its individual justices are powerful political players by themselves. The court does not and could not “rule the country” (contrary to what some of its critics claim), but it does much more than simply ensuring politicians stay within the boundaries of the Constitution (contrary to what its justices often assert). It holds its ever-expanding criminal jurisdiction over the heads of politicians. It quite openly enacts policy and rules on several issues, acting like a co-legislator and sometimes the primary lawmaker. It shapes the political and electoral arena itself, in real time. Politicians develop their plans and electoral strategies under the shadow of the individual powers of its justices. Consider that, for most of his time in office, Bolsonaro consistently attacked the court and several of its individual judges. He turned the 2022 elections into something like a national referendum on the STF, and lost. Four years later, he was tried and convicted by that court for orchestrating a coup d’état attempt. How many courts in the world have survived a sustained showdown with the most powerful political actor in the country – and then sent him to jail?

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

The mandatory retirement age, while inferior to having a fixed term for all justices, is in my view better than life tenure. Another feature is the STF’s broad abstract review jurisdiction. It tends to force the court to focus on the merits of a constitutional challenge, instead of having to invest time and effort in discussing standing technicalities. It also helps ensure that relevant constitutional questions will be reviewed by the country’s highest court, making access easier and more straightforward. I also have a positive view of the STF’s public deliberations, but here I am in the minority in Brazilian constitutional law.

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

Writing a collective majority opinion (or least being expected to try to do so) is very helpful for providing guidance to lower courts and to society in general.

Additionally, I think what judges cannot do is as important as what they can do. There are things that the U.S. justices cannot do, in contrast to the STF ones, that help create a relatively better design in the SCOTUS. The first I have already mentioned: expansive individual decision-making powers by the Brazilian justices that I have argued elsewhere to be unjustifiable. The SCOTUS, like most supreme or constitutional courts, is an institution in which internal majorities rule. Even the “rule of four” standard that is adopted for granting cert petitions, while technically a sub-majority rule, helps to constrain more extreme or idiosyncratic views within the court.

Finally, there’s a feature I haven’t yet mentioned. Although the SCOTUS has discretion in choosing what it will keep in its docket, it is expected to announce, within the same judicial year, whether it will decide the case and the decision itself. The STF, in contrast, has no deadline to decide. In fact, it is under no deadlines at all. It can keep a case on its docket for 5, 10, 15 years, and then suddenly “resurrect” it, out of nowhere, creating for itself the opportunity to rule on an issue that has become politically relevant. So here is another thing that the STF can do, but that I think it should not be able to do: to simply remain silent on a case for years and years, not saying even if it will be decided on the merits. As my colleague Ivar Hartmann and I have argued (here and here), this gives the justices too much unaccountable discretion.