The Trump administration came to the Supreme Court on Friday, asking the justices to allow construction of the new White House ballroom to continue while a challenge to the project continues in the lower courts. The request came one week after a federal appeals court in Washington upheld a ruling by a federal district court that temporarily blocked construction, while at the same time giving the federal government 14 days to go to the Supreme Court.

The Trump administration urged the justices to put the order by Senior U.S. District Judge Richard Leon on hold, calling it “extraordinary and unlawful.” It “will halt the ongoing construction of the integrated military complex, including a totally secure ballroom space, at the East Wing of the White House, which is vitally required by national security,” U.S. Solicitor General D. John Sauer wrote.

Sauer sought to pause Leon’s order to give the government time to file a petition for review at the Supreme Court. He also asked the justices to immediately issue an administrative stay, which would temporarily block the order while the court considers the government’s request.

The dispute began in October 2025, when the Trump administration tore down the East Wing of the White House, which had housed (among other things) the offices of the First Lady and her staff, to build a 90,000-square-foot ballroom – just slightly smaller than one-and-a-half football fields.

The National Trust for Historic Preservation, a private nonprofit that describes itself as having “led the movement to save America’s historic places” “[f]or more than 75 years,” filed a lawsuit in federal court in Washington, D.C.

Leon’s order temporarily blocked the construction of the ballroom above ground but allowed construction – of, for example, bomb shelters and bunkers – to continue underground, along with any above-ground construction necessary for safety and security. Leon’s ruling never went into effect, however, because the U.S. Court of Appeals for the District of Columbia Circuit issued an administrative stay while the Trump administration’s appeal was pending.

On Friday, Aug. 7, a divided three-judge panel of the D.C. Circuit upheld Leon’s ruling.

Judges Patricia Millett and Bradley Garcia concluded that Congress, rather than the president, “has exclusive authority to regulate the construction and demolition of White House structures,” and it has not authorized any money for the ballroom construction. They agreed with the trust that if the construction is not put on hold and the ballroom is built, it will inflict permanent harm (another criterion in considering whether to grant temporary relief) on the trust’s members because of the “irreversible historical-preservation, architectural, and visual damage” that the new structure will cause.

Judge Neomi Rao dissented. She contended (among other things) that the National Trust for Historic Preservation did not have a legal right to sue, known as standing, to stop the ballroom construction. Moreover, she added, the president has the power to make improvements to his residence, which likely includes the ballroom.

Millett and Garcia put their order on hold for 14 days to give the Trump administration time to go to the Supreme Court. On Friday, Sauer did exactly that. He first contended that the trust does not have a legal right to sue, known as standing, because its claims rest on a member’s “dislike” for the new construction. Such a “subjective preference” does not create the kind of injury that would allow the lawsuit to go forward, he contended. To the contrary, Sauer suggested, “[m]any strongly disagree with her, as one” White House official indicates in a declaration attached to the Trump administration’s application: Joshua Fisher, the director for White House Management and Administration, wrote that “[t]his building is already being adjudged to be one of the most beautiful of its kind, anywhere in the country.”

Sauer pushed back against the conclusion by the D.C Circuit majority that Trump lacked the power to bulldoze the East Wing and initiate the new construction. “Congress,” he wrote, “has authorized the Project twice over” – by authorizing Trump and other presidents “to make ‘alteration[s]’ and ‘improvement[s]’ to the White House” and because it “broadly authorized the Executive to construct buildings in national parks.”

Sauer also noted that because Leon’s order has never gone into effect, “construction has since proceeded …, with a 250-person crew working 20 hours a day, 7 days a week to keep the Project ahead of schedule and under budget. Today, the Project is 65% complete in its entirety, and moving quickly toward total completion.”

Indeed, Fisher added in his declaration, “[q]uite frankly, if the building were tragically ordered to be taken down, or even altered, by the court, there would be no way to do so.” According to Fisher, among other things, the concrete that has been used in the project is “the type used in nuclear power plants” and is “virtually impossible to deconstruct.”

The court instructed the National Trust for Historic Preservation to file a response to the government’s request by 12 p.m. EDT on Tuesday, Aug. 18.

The legal dispute in Wassily, which has divided the federal courts, dates back to unclear language in the Refugee Act of 1980. The Refugee Act laid the framework for the modern asylum system and defined legal standards for asylum officers, immigration judges, and other immigration adjudicators. The act used precise, detailed language in crafting the refugee process for noncitizens outside of the United States, but Congress left internal asylum procedures more undefined, with less statutory guidance. Over time, asylum claims increased dramatically, making unclear statutory gaps more and more troublesome.

Indeed, that lack of statutory clarity is front and center in Wassily. The Refugee Act specified that refugees processed outside the United States could only obtain a permanent resident green card if their refugee “admission has not been terminated.” By contrast, the act was unclear whether that same requirement also applied to asylees who had obtained asylum status from within the United States. For asylees applying to “adjust” to permanent resident status, as codified at 8 U.S.C. § 1159(b), the Refugee Act did not mention termination at all. Instead, the act only said that the immigration official “may” grant the green card for “any alien granted asylum” who met the admissibility requirements. The act did not say whether “granted asylum” meant anyone who previously had been granted asylum or whether that phrase was limited to those with a current asylum status.

Tamer Wassily left his native Egypt and entered the United States in 1993. He was granted asylum in 2000 based on his claim of persecution in Egypt as a Coptic Christian. Later, he was convicted of stalking and child endangerment, at which point the DHS sought to terminate his asylum status before an immigration judge. The immigration judge agreed and terminated this based on the finding that Wassily’s stalking conviction was a “particularly serious crime.” But the immigration judge found him eligible to adjust to a green card because the immigration statute did not contain “an explicit requirement” of current asylum status.

Byron Velasquez Arreaga entered the United States in 1995 and was granted asylum. He later was convicted of multiple crimes for driving while intoxicated. The DHS sought to terminate his asylum status and scheduled an immigration court hearing. The immigration judge terminated his asylum status for particularly serious crimes. In contrast to Wassily’s immigration judge, this immigration judge found that without a current asylum status, Velasquez Arreaga could not adjust status to a green card and he was ordered removed to his native country of Guatemala.

The parties appealed both cases. The Board of Immigration Appeals weighed in on the statutory confusion in a precedent decision: Matter of T-C-A-. The BIA interpreted the statute as meaning that only a noncitizen with current asylum status could adjust to permanent resident status. In Wassily’s appeal, the BIA relied on Matter of T-C-A-. It found that Wassily’s terminated asylum status made him ineligible for adjustment to a green card. The BIA also found Velasquez Arreaga ineligible for adjustment.

In tandem cases for Wassily and Velasquez Arreaga, a divided panel of the U.S. Court of Appeals for the 2nd Circuit agreed with the majority of circuits that only noncitizens with current asylum status were eligible for asylee adjustment. The 2nd Circuit concluded that the statutory phrase “granted asylum” was best understood to require a current asylum “status” – a legally significant term as used by Congress. The panel majority said its reading was “buttressed” by statutory context, including the Immigration Act of 1990. That act explicitly created a time-restricted exception that allowed some noncitizens to apply for green cards “regardless of whether or not such asylum has been terminated.” The circuit reasoned that this limited exception, as a “statutory note,” did not create a general rule that noncitizens could apply for permanent residency after termination.

In dissent, Judge Beth Robinson adopted the minority view of the circuits on this “difficult” statutory question. She reasoned that the asylee adjustment statute meant that “any” noncitizen was eligible to adjust who previously had been granted asylum. Under Robinson’s view, the absence of the word “status” from the statutory provision must have been an intentional omission by Congress.

The Supreme Court granted certiorari in June to review the statutory question of whether terminated asylees are eligible to apply for adjustment to permanent residency. In their petition for certiorari, Wassily and Velasquez Arreaga argue that the statutory text and context are clear that any noncitizen who was “granted asylum” previously can seek permanent residence after termination. They interpret “granted” as a past tense verb, and they contend that the omission of “status” in the statutory language must be given effect because Congress knew how to include such a requirement.

As broader statutory context, Wassily and Velasquez Arreaga emphasize the adjacent Section 1159(c), which allows for a discretionary “waiver” of other requirements for the noncitizen’s admissibility. According to them, it would be “strange” to interpret the statute as “categorically” stripping the attorney general of that discretionary authority where the asylee’s status has been terminated.

Wassily and Velasquez Arreaga also invoke the rule of lenity – the canon that a statutory ambiguity should be construed in favor of the noncitizen. They claim that lenity is especially paramount after the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, which eliminated the doctrine of Chevron deference to a federal agency’s (here, the BIA’s) reasonable interpretation of an ambiguous statute.

In an atypical move where only the U.S. Courts of Appeals for the 2nd, 4th, and 5th Circuits so far have looked at this issue, Solicitor General D. John Sauer agrees that the Supreme Court should grant review. Even so, the solicitor general maintains that the 2nd Circuit was correct in interpreting asylee adjustment as limited to noncitizens with current asylum status. The government says that Congress’ intent is best understood as giving effect to the termination of asylum “status” as a bar to obtaining a green card. The solicitor general relies on the statutory note in the Immigration Act of 1990 as evidence that Congress only excepted a small subset of asylees from the general rule barring terminated asylees from adjustment of status.

Without citing Loper Bright, the government disputes that the rule of lenity is applicable here at all. The solicitor general argues that the discretionary waiver at Section 1159(c) does not undermine the most natural reading of asylee adjustment because “the decision to terminate is itself discretionary” and the court should give effect to that waiver authority.

***

The Supreme Court’s resolution of this case could impact the interests of the millions of asylum applicants with cases pending in the immigration courts and asylum offices, as well as those persons granted asylum status in recent years. Even if the Supreme Court narrowly frames this case as a discrete statutory question, it will clarify the effect of the government’s termination authority for anyone granted asylum. This is especially timely: in December 2025, the DHS announced that it would “comprehensively re-review” asylum approvals from “high-risk” countries since entry in 2021. At the end of that review, the DHS could elect to terminate asylum status. In June 2026, a federal district court vacated the DHS re-review policy, but the government is challenging that ruling.

That’s not all. The case also could have broader implications for federal administrative law if the justices take an interest in the parties’ arguments about the government’s discretionary authority or Loper Bright. The Supreme Court has not yet relied on Loper Bright in deciding an immigration case. In fairness, the 2nd Circuit found no need to do so, and the Supreme Court avoided a similar issue in Urias-Orellana v. Bondi, a case that concerned the judicial standard of review for asylum “persecution” determinations. But that does not mean the court will continue to let this issue linger.

Disclosure: When he was at the DOJ, the author litigated Wassily before the 2nd Circuit. He no longer has any involvement in the case or its litigation before the Supreme Court.

Less than three weeks later, another appointed amicus, Brian Barnes, will argue – this time in Maxwell v. Dinis, a case involving the process that inmates must use to seek a less restrictive form of custody. Like Beaird’s case, Maxwell’s case hails from the 5th Circuit, and Barnes – like Dick – served as a law clerk for Justice Samuel Alito, who is the “circuit justice” (that is, the justice responsible for emergency appeals and administrative issues) for the 5th Circuit.

Because amicus appointments have been (at least until recently) relatively infrequent, discussions of the appointments often focus on whether and when they are proper. However, a 2016 article by law professor Katherine Shaw for the Cornell Law Review looked more closely at how the court appoints amici. Shaw observed that although “[t]here is no official guidance from the Court, … public reporting about such appointments and the papers of the Justices provide some clues. What emerges from these sources is a strong sense that the process is ad hoc and relationship-driven.”

In particular, Shaw wrote, not only do amicus appointments “invariably go to former law clerks of the Justices,” but (as the appointments of Barnes and Dick reflect) they overwhelmingly (although not always) go to lawyers who clerked for the circuit justice. And indeed, press reports confirm that the phone call extending the invitation to serve as an amicus comes from the circuit justice’s chambers. A survey of the amicus appointments over the last decade suggests that the result of this tradition of having the circuit justice appoint amici has resulted in a high level of homogeneity among the lawyers who are appointed, in terms of both demographics and ideology.

From OT2016 through the beginning of OT2026, the Supreme Court made 24 amicus appointments. Of those 24 appointments, 19 (79%) were men, the vast majority of them white. And only two of the appointed amici – Amy Weil and Deepak Gupta – did not clerk at the court.

To the extent that a clerk’s legal philosophy or outlook is similar to the judge for whom he or she worked, the amicus appointments from 2016 until 2026 also reflect a high degree of ideological homogeneity. With the development of a conservative supermajority on the Supreme Court, the overwhelming majority (20 out of 24, or 83%) of amici appointments came from, and clerked for, circuits whose circuit justices were Republican appointees. Only four came from circuits whose circuit justices were nominated by Democratic presidents.

Why does it matter who argues at the court, much less in a role that is filled only a few times each term? In her 2016 essay, Shaw argued that if lawyers are “in some sense participants in the Court’s decision-making processes,” “a more diverse pool of advocates might bring to the Justices creative ways of approaching cases—ways they might not otherwise encounter, and that might ultimately enrich and even improve our body of law.” This is especially true, and perhaps important, when court-appointed amici have stepped in to defend a position that the federal government or the state government has abandoned.

Shaw also suggests that the court’s amicus-appointment practices could “suggest a route to opening or democratizing Supreme Court advocacy” because 56% of the invitations in her dataset (which covered the period up to 2016) went to lawyers who would be first-time advocates. Given the increased specialization of the Supreme Court bar (the group of lawyers who argue regularly before the Supreme Court) and the shrinking number of oral arguments that the court hears each year, the amicus appointments can help to provide a proverbial foot in the door for aspiring Supreme Court advocates.

And at the very least, a Supreme Court argument serves as a credential that burnishes an attorney’s resume, much like a clerkship or a degree from a prestigious law school. Even if appointed amici never argue before the Supreme Court again, their lone argument may nonetheless give them a leg up in applying for a new job or pitching for new business.

With women now making up more than half of all law school graduates, there is no reason why the appointed amici can’t look more like the rest of the legal profession. Now, to be fair, we don’t know what goes on behind the scenes when the justices are seeking to appoint an amicus. The major time commitment involved in briefing and arguing a Supreme Court merits case may also prompt some former clerks, however reluctantly, to decline. Moreover, until recently men have dominated the ranks of Supreme Court clerks.

But these are arguments in favor of expanding the pool of potential amici, rather than sticking with the status quo. If the justices want to continue to rely heavily on former clerks because they are known commodities and because the former clerks are more familiar with the court’s expectations, they could abandon the “circuit justice tradition” and pull from a broader pool of former clerks, no matter for whom they clerked, to serve as amici. For example, while the 11th (Thomas) and 5th (Alito) Circuits have yielded 11 amicus appointments since 2016, the U.S. Court of Appeals for the 1st Circuit (for which Justice Stephen Breyer and then Justice Ketanji Brown Jackson have been the circuit justices) has not had any. They could also invite lawyers who clerked for now-retired or deceased justices, as Sotomayor did in 2015 when she asked Catherine Carroll, a former clerk to Justice David Souter, to serve as an amicus. Alternatively, the court could turn more often to lawyers who did not clerk at the court, but who are excellent appellate advocates.

These would all be small, but important steps, in bringing the Supreme Court bar closer in line with the rest of the legal profession.

***

List of appointed amici – OT2016 to present

1. Stephen Kinnaird (OT2016) – McLane v. EEOC (9th Cir.)
   1. Circuit justice: Anthony Kennedy
   2. Former Kennedy clerk
2. Adam Mortara (OT2016) – Beckles v. United States (11th Cir.)
   1. Circuit justice: Thomas
   2. Former Thomas clerk
3. Anton Metlitsky (OT2017) – Lucia v. SEC (D.C. Cir.)
   1. Circuit justice: Roberts
   2. Former Roberts clerk
4. Deepak Gupta (OT2018) – Smith v. Berryhill (6th Cir.)
   1. Circuit justice: Sotomayor
   2. No Supreme Court clerkship
5. Amy Weil (OT2018) – Culbertson v. Berryhill (11th Cir.)
   1. Circuit justice: Thomas
   2. No Supreme Court clerkship
6. Paul Clement (OT2019) – Seila Law v. CFPB (9th Cir.)
   1. Circuit justice: Kagan
   2. Former Scalia clerk
7. K. Winn Allen (OT2019) – Holguin-Hernandez v. United States (5th Cir.)
   1. Circuit justice: Alito
   2. Former Alito clerk
8. Adam Mortara (OT2020) – Terry v. United States (11th Cir.)
   1. Circuit justice: Thomas
   2. Former Thomas clerk
9. Amanda Rice (OT2020) – Lange v. California (Cal. Ct. App.)
   1. Circuit justice (9th): Kagan
   2. Former Kagan clerk
10. Aaron Nielson (OT2020) – Collins v. Yellen (5th Cir.)
    1. Circuit justice: Alito
    2. Former Alito clerk
11. Taylor Meehan (OT2021) – Patel v. Garland (11th Cir.)
    1. Circuit justice: Thomas
    2. Former Thomas (and Scalia) clerk
12. Morgan Ratner (OT2022) – Jones v. Hendrix (8th Cir.)
    1. Circuit justice: Kavanaugh
    2. Former Roberts clerk and clerk to then-Judge Kavanaugh
13. D. Nick Harper (OT2023) – Erlinger v. United States (7th Cir.)
    1. Circuit justice: Barrett
    2. Former Barrett clerk (also Kennedy and then-Judge Kavanaugh)
14. Stephen Hammer (OT2024) – Riley v. Bondi (4th Cir.)
    1. Circuit justice: Roberts
    2. Former Roberts clerk
15. Christopher Michel (OT2024) – Glossip v. Oklahoma (Okla. Ct. Crim. App.)
    1. Circuit justice (10th): Gorsuch (recused)
    2. Former Roberts clerk
16. Michael McGinley (OT2024) – Hewitt v. United States (5th Cir.)
    1. Circuit justice: Alito
    2. Former Alito clerk
17. Christopher Mills (OT2024) – Martin v. United States (11th Cir.)
    1. Circuit justice: Thomas
    2. Former Thomas clerk
18. Michael Huston (OT2024) – Parrish v. United States (4th Cir.)
    1. Circuit justice: Roberts
    2. Former Roberts clerk
19. Roman Martinez (OT2025) – National Republican Senatorial Committee v. FEC (6th Cir.)
    1. Circuit justice: Kavanaugh
    2. Former Roberts clerk, clerked for then-Judge Kavanaugh
20. Kasdin Mitchell (OT2025) – Bowe v. United States (11th Cir.)
    1. Circuit justice: Thomas
    2. Former Thomas clerk
21. Charles (Luke) McCloud (OT2025) – Barrett v. United States (2nd Cir.)
    1. Circuit justice: Sotomayor
    2. Former Sotomayor clerk
22. John Bash (OT2025) – Ellingburg v. United States (8th Cir.)
    1. Circuit justice: Kavanaugh
    2. Former Scalia clerk, clerked for then-Judge Kavanaugh
23. Brian Barnes (OT2026) – Maxwell v. Dinis (5th Cir.)
    1. Circuit justice: Alito
    2. Former Alito clerk
24. Anthony Dick (OT2026) – Beaird v. United States (5th Cir.)
    1. Circuit justice: Alito
    2. Former Alito clerk

At the Court

On Thursday, the Supreme Court denied a request for a stay of execution from Anthony Darrell Dugard Hines, who was sentenced to death for the murder of Catherine Jean Jenkins. Hours later, Hines was executed in Tennessee.

On July 27, the Trump administration asked the Supreme Court on its emergency docket to clear the way for the implementation of President Donald Trump’s executive order on mail-in voting. Twelve states later echoed this request in their own application. Last week, the group of 23 states and the District of Columbia challenging the order asked the court to deny these requests. On Wednesday, the Trump administration urged the justices to “promptly” issue their decision.

The court is set to release the second of three summer order lists on Monday at 9:30 a.m. EDT. (We discussed what these lists typically address in our July 13 newsletter.)

Morning Reads

How a Covid-Era Scramble Transformed Supreme Court Arguments

Adam Liptak, The New York Times (paywalled)

A new study on Supreme Court oral arguments from October 2005 to April 2026 “revealed momentous changes in a cautious institution,” according to The New York Times. Among other shifts, the research highlighted how the average length of argument has expanded in the years since the onset of the COVID-19 pandemic, when the court conducted its arguments by telephone. “Before the pandemic, arguments lasted an hour. Now they are on average nearly 90 minutes,” and the arguments for high-profile cases, such as the dispute over President Donald Trump’s tariffs, sometimes stretch closer to three hours. The study also showed that, although Justice Clarence Thomas speaks more today than he did in the past, he is still the least talkative justice, accounting for just 3% of the justices’ speaking time during the 2025-26 term. Justice Ketanji Brown Jackson, “on the other hand, has emerged as by far the most talkative justice, uttering an average of 1,263 words per case, more than double the justices’ average.” The Times also noted a “striking finding” about Chief Justice John Roberts: The chief “used to speak an average amount,” but “has become almost as taciturn as Justice Thomas.”

Apple App Store Commission-Rate Proceedings Can Move Forward

Leah Nylen, Bloomberg (paywalled)

On Thursday, Justice Elena Kagan denied Apple’s request to pause “a lower-court proceeding over the rate it charges developers for sales outside its App Store” while the Supreme Court considers “an appeal related to a contempt finding in the case,” according to Bloomberg. “The new order, which came without comment, supersedes a temporary pause Kagan imposed Wednesday to allow more time to consider Apple’s request.” The case on Apple’s commission will now continue before U.S. District Judge Yvonne Gonzalez Rogers “simultaneously with the Supreme Court” case, which addresses the circumstances under which a court may hold a party in civil contempt. Rogers held Apple in contempt after ordering the company to allow game developers to use external storefronts for in-app purchases and determining that its decision to charge a 27% commission on such purchases violated that order. 

Top Democrat Targets Supreme Court for Changes

Damian Paletta and Maya Davis, The Wall Street Journal (paywalled)

During a Thursday appearance at the National Association of Black Journalists convention, House Minority Leader Hakeem Jeffries, a Democrat from New York, “signaled that Democrats would look to overhaul the Supreme Court if they regain power in Washington,” according to The Wall Street Journal. Jeffries “described the conservative wing of the court as a ‘subsidiary’ of President Trump’s Make America Great Again movement. He said there are a ‘variety of different options [for reform] that are on the table, and I think we can’t foreclose on any single one of them.’” The Journal noted that “Democratic congressional candidates on all sides of the party have criticized the court on the campaign trail, calling for term limits and an end to the 2010 Citizens United ruling that allowed corporations and unions to spend unlimited money on elections.”

Birth Tourism Schemes Targeted by State Department Task Force

Andrew Kreighbaum, Bloomberg Law

On Wednesday, the State Department announced that it launched “a task force to prevent exploitation of visa programs for birth tourism.” The effort draws on “data collected by multiple federal agencies, including the Department of Homeland Security, to review travel histories of foreign nationals entering the US,” according to Bloomberg Law. The new task force is part of the Trump administration’s broader push against “[s]chemes facilitating travel by foreign nationals to the US with the sole purpose of giving birth,” a push that has expanded since the Supreme Court struck down President Donald Trump’s executive order on birthright citizenship on June 30. The State Department said “[t]he task force has already revoked the visas of more than 600 individuals.”

State continues Whittier voter misconduct prosecutions despite landmark U.S. Supreme Court citizenship ruling

Jonson Kuhn, Alaska’s News Source

After receiving “a complaint about noncitizen voting,” Alaska State Troopers in 2024 spoke with residents of Whittier, Alaska, about their citizenship status and ultimately launched a legal battle against an American Samoan family, accusing them of “improperly mark[ing] themselves as U.S. citizens on state voting forms” when they are actually U.S. nationals, according to Alaska’s News Source. The family’s defense team now seeks to have the “felony voter misconduct charges” dismissed, contending “that under the recent U.S. Supreme Court decision in Trump v. Barbara, anyone born on U.S. soil – including U.S. territories like American Samoa – is constitutionally a U.S. citizen under the Citizenship Clause of the Fourteenth Amendment.” In opposing the motion to dismiss, the state did not address the Supreme Court ruling and instead “argued that it is legally sufficient that Congress has historically designated individuals born in American Samoa as ‘nationals, but not citizens, of the United States.’”

On Site

SCOTUS Outside Opinions

The Supreme Court expands protections for digital data – now what?

In a column for SCOTUSblog, Mailyn Fidler revisited Chatrie v. United States, in which the court held that “one’s digital location [is] firmly protected by the Constitution from police searches without a warrant.” The ruling, according to Fidler, “opens the door to a major expansion of digital privacy under the Fourth Amendment. But the nature and extent of this privacy is far from certain.”

SCOTUS Outside Opinions

Once upon a time: storytelling in Learning Resources v. Trump

In a column for SCOTUSblog, Kendall Gray, who teaches legal writing to law students, explored what makes the Supreme Court’s best writers good at, well, writing, by focusing on Chief Justice John Roberts’ opinion for the court in the tariffs case. He emphasized Roberts’ use of storytelling language and focus on the president as an actor in a narrative, rather than simply on legal principles or statutory text.

Podcasts

Advisory Opinions

This Is Not A Vibes-Only Podcast

David Lat and Zachary Shemtob return as guest hosts and are joined by Adam Feldman, author of the blog Empirical SCOTUS and the Substack Legalytics, to discuss an update on birthright citizenship, some new polling about SCOTUS, and Luigi Mangione, who will soon be tried for the murder of UnitedHealthcare executive Brian Thompson.

A Closer Look

Justice Bushrod Washington

While one’s relatives are by no means a guarantee of success, it certainly helped in Justice Bushrod Washington’s case to have the nation’s first president as his uncle.

The younger Washington was born in June 1762 in Westmoreland County, Virginia, to Hannah Bushrod and John Augustine Washington, the younger brother of the future president. Said to be the general’s favorite nephew, Washington graduated from William & Mary at 16, then studied law there under the first law professor at an American university, George Wythe, and alongside John Marshall. Washington put his studies aside to serve as a Continental Army private in 1781, although whether he actually watched General Charles Cornwallis surrender at Yorktown depends on whom you ask. His uncle then arranged a Philadelphia apprenticeship with none other than James Wilson, a founder who would eventually serve on the Supreme Court and have snowballing financial problems (to put it mildly).

Back in Virginia, Washington built a busy appellate practice, published a volume of Virginia Court of Appeals decisions in 1796, took on law students of his own, including the young Henry Clay, won a House of Delegates seat in 1787, and voted to ratify the Constitution at Virginia’s 1788 convention.

In 1798, Wilson died and President John Adams offered the vacancy to Marshall, who turned it down because he wanted to run for Congress and recommended his friend Washington instead. Adams gave Washington a recess appointment that fall, and he took his oath in November 1798. The Senate confirmed him that December. Washington was the youngest justice yet at age 37 when he took his late teacher’s spot on the bench.

After Marshall became chief justice in 1801, the two voted together so reliably that Justice William Johnson described them as “commonly estimated as one judge.” Exactly how rarely Washington strayed from the chief is somewhat contested. (His formal dissents have been counted at one or three.)

One of Washington’s best-known opinions came in 1827’s Ogden v. Saunders. Ogden centered around whether a state bankruptcy law could wipe out debts without violating the Constitution’s ban on laws “impairing the obligation of contracts.” Writing for the majority, Washington held that a law already on the books when a contract is signed effectively becomes part of that contract, so applying it at a later time does not impair things. Marshall disagreed, making it the “only constitutional case in which Marshall wrote a dissenting opinion.”

Some of Washington’s heaviest work, though, happened off the court. From 1803 until his death he rode the 3rd Circuit, spending around four months a year holding court in Philadelphia and Trenton (far more than his six annual weeks of Supreme Court work) and adjourning daily at exactly 3:00 p.m., because, as he told one lawyer, if he wasn’t in his wife’s parlor within five minutes of that, “she imagines some evil has happened to me.” While on circuit, Washington decided 1809’s United States v. Bright, in which a Pennsylvania militia general had used armed forces to block a federal court judgment on the state’s orders. Washington held that states cannot resist federal courts at gunpoint. In 1814’s Golden v. Prince, he concluded that only Congress (not the states) could enact bankruptcy legislation.

And then there is 1823’s Corfield v. Coryell, which began as a conflict over who could harvest New Jersey oysters, but ultimately helped define the early reading of Article IV’s guarantee that a state cannot deny citizens visiting from other states the privileges and immunities it extends to its own (relevant for who could work New Jersey’s oyster beds). Washington’s opinion listed the rights he deemed “fundamental,” among them a citizen’s right “to pass through, or to reside in any other state,” which has been credited with laying groundwork for the Civil Rights Act of 1866 and the 14th Amendment.

Off the bench, Washington inherited his uncle’s papers in 1799 and Mount Vernon itself in 1802, co-producing with Marshall a five-volume biography of George Washington. As his uncle’s executor, he carried out his direction to free those whom America’s first president had enslaved – although he never granted freedom to the many individuals he held in bondage.

Washington died mid-circuit in Philadelphia in November 1829, and his wife Nancy died two days later. Both rest at Mount Vernon.

SCOTUS Quote

MR. McCONNELL: “… Unless there are further questions, I will waive the remainder of my time.”

CHIEF JUSTICE ROBERTS: “Thank you, counsel.”

MR. McCONNELL: “Unless it's an un-waivable right.”

(Laughter.)

CHIEF JUSTICE ROBERTS: “You have no right to time before the court.”

CompuCredit Corp. v. Greenwood (2011)

Take Chief Justice John Roberts as an example. Flash back to November 2025: if you’re Roberts, you’ve got a problem – or at least a challenge. You’ve just assigned yourself the majority opinion in Learning Resources v. Trump. Now you must convince readers inside and outside the court that the International Emergency Economic Powers Act provides no authority for the one policy most important to this president: tariffs. 

Never mind that the solicitor general has warned that your decision will provoke another Great Depression. Never mind that the outcome depends upon Talmudic esoterica unfamiliar to a politicized public – things like separation of powers, textualism, and the major questions doctrine.

Beyond all that, you must communicate dreadful source material, especially to non-legal readers. Those readers must learn something of IEEPA itself, which clocks in at around 2,000 words of abstract text. Then, they need the content of the president’s orders, which add almost 12,000 words, even without the appendices.

So … what do you do?

Roberts solves this problem by meeting the expectations of the ordinary, English-language reader. Apart from citations, he tells a 422-word story, and he does it with a tactic any writer can emulate: He uses actors as the subjects of most of his sentences. In a conflict over presidential power, Roberts makes the president the main character in a story, both in setting out IEEPA’s requirements and in summarizing the president’s orders.

After an initial topic sentence about IEEPA, he puts the president – rather than the statute – in the subject position. He writes that, to satisfy IEEPA, “the President must identify” a threat. Then, “he must declare” an emergency. Then “he” may “regulate [. . . 16 words later . . .] importation.”

Turning to the facts, the chief keeps the president – rather than his orders – in the spotlight. He practically ties the president to a chair at center stage. In the narrative, “President Trump sought” to address two, specific threats (“The first was the influx of illegal drugs from Canada, Mexico, and China,” and “[t]he second was ‘large and persistent’ trade deficits.”). Roberts writes that the “President determined” the threats were serious. “He invoked” his power under IEEPA. As required by the statute, “President Trump declared” the requisite emergency. “He then imposed” tariffs, which “the President” later changed when “he increased” or “he removed” tariffs. Later, “the President . . . shifted . . . goods into and out of” the tariff regime. 

Indeed, in all the sentences he wrote for Section I.A of the opinion, the chief used an actor as the subject in all but five.

In making that choice, the chief is not employing some tactic unique to “legal” writing, separate from ordinary English prose. Your old English composition teacher has long known the power of storytelling language. One such teacher, Joseph Willams, changed the way I wrote as a lawyer, and I love the way he put it. In the book Style: Lessons in Clarity and Grace, he focuses on what every reader needs from a writer. While readers look for action in the verbs, “they want characters as subjects even more.” You erect tripping hazards for your reader when, “for no good reason,” you “fail to name characters in subjects, or worse, delete them entirely.”

Unfortunately, most lawyers don’t write this way. Most lawyers – even great ones – write more like the Congressional Research Service. In its September 2025 report on IEEPA, CRS covers essentially the same ground as the chief’s 422-word story. But instead of a story, CRS offers up a report filled with tripping hazards. It force-feeds the reader five dense pages (10–14) of abstract prose, replete with footnotes.

Where Roberts describes IEEPA by focusing on the president, CRS hangs a 56-word sentence on “IEEPA empowers.” Readers must then swallow a 50-word sentence hung on “statute provides.” And the public is reminded that each “new threat . . . requires” certain actions by the president. The coup de grace? CRS treats readers to a dreadful block quote of IEEPA’s central provisions.

To be sure, the president does appear in the paragraphs discussing the tariff orders. But if Roberts ties the president to a chair, CRS permits him to wander on and off stage. In the president’s absence, readers must content themselves with massive sentences about the “January Proclamation” or the “February Executive Orders.” Again, rather than a story, the reader must shoulder a bureaucratic tome – scrupulously accurate, no doubt, but abstract enough and long enough to avoid being read at all.

The chief, in contrast, uses storytelling both to be read and to be understood, all while setting up his version of the question. Remember the story: The president issued barely related tariffs that swallowed the entire economy, then he changed them at random. But Congress wrote, “regulate . . . [yadda, yadda, yadda] . . . importation.” Based on this language, can a president really set tariffs “on imports from any country, of any product, at any rate, for any amount of time”?

Nope.

So, how to write like the chief rather than like a lawyer? Prefer actors as subjects rather than concepts or abstractions like proclamations, orders, tariffs, separation of powers, or the major questions doctrine. Of course, “prefer” means you’ll occasionally discover “good reason” to abandon this approach, but not nearly as often as you think. For the moment, create drafts like you always do, then build in storytelling when you line edit.

Use this process (adapted from Joseph Williams):

• Underline the first seven or eight words of each sentence.
• Do you see a subject there? Is it a character?
• If it’s not a character, is there some “good reason” to choose the abstraction?
• If not, look for characters hidden in other parts of speech like “the president’s orders” or “the powers of the president.”
• If necessary, create a menu of the main characters in your conflict, then invite them back onstage as subjects who have things to do.

In the end, good legal writers do the same things as good writers in any field. Good writers tell stories where characters do things. And here, the president was doing things, but without a permission slip from congress.

This term, in Chatrie v. United States, the Supreme Court recognized one’s digital location as firmly protected by the Constitution from police searches without a warrant. Beyond its particular context, Chatrie also opens the door to a major expansion of digital privacy under the Fourth Amendment. But the nature and extent of this privacy is far from certain.

Where digital location data stood

Before this summer, certain kinds of digital location data were already protected. In 2018’s Carpenter v. United States, the court held that police needed to get a warrant before reviewing at least seven days’ worth of a certain kind of digital location data - cell-site location information. Cell phone providers collect CSLI when cell phones connect to cell towers, and it can provide an estimate of a user’s location somewhere within one-eighth to four square miles. This kind of information can be useful to police in, for instance, placing suspects at the locations of crimes.

In Carpenter, the court held that people have a reasonable expectation of privacy (and therefore Fourth Amendment protections) in at least seven days’ worth of this data because, for one, such location data is particularly revealing of the privacies of life, as it tracks a person’s movements both extensively and into private areas. Such information was also revealing, according to the court, since the volume of CSLI far outstripped past police capacity to track individuals, and given that police could retrospectively delve into any cell phone carriers’ past, regardless of whether the police had earlier identified them as a suspect worth devoting resources to tracking. Additionally, the court found that phone users’ generation of CSLI was involuntary: carrying a cell phone is inescapable in modern life and one’s phone automatically generates this data, not through any active choice on the user’s part. (One commenter has termed these facets the Carpenter test factors).

Chatrie: Carpenter redux

The court’s holding in Carpenter was fairly hedged, however. Was digital location data of this kind spanning less than seven days protected? What about data generated from some kind of interaction with a user, rather than data generated automatically by one’s phone?

Enter Chatrie v. United States. The case dealt with exactly those questions, and the court answered them with a resounding affirmation of location data’s protections. Specifically, Chatrie involved police constructing a “geofence” – a virtual perimeter of sorts – and requesting data from companies about all cell phones located within that perimeter, from which the police ultimately can identify suspects. The particular kind of data requested in the Chatrie geofence involved information collected by a Google service called “location history.” This service records the location of a user’s cell phone more frequently and more precisely than CSLI.

This feature also allows for data to be collected on the scale of hours, rather than days, and involves data generated through a process with arguably more interaction from the user than in Carpenter: users opt-in, with varied degrees of awareness, for their location to be tracked.

Despite these differences, the court concluded that this type of data should be treated similarly to that in Carpenter, emphasizing that its precision was actually more revealing than CSLI, even with only a very short window of collection. The court also focused on the data’s retrospective nature: any officer could reconstruct the movements of any individual in both public and private spaces at the click of a button. The court thus concluded that one had a reasonable expectation of privacy in their digital location history.

Power to the people?

Perhaps the court’s most surprising move, however, was to characterize this kind of digital location data as belonging to the user. The majority described this data as a record the user “views as his own” because users use this data as “a personal journal” of what restaurants they visited, what they saw on vacation, when they were at a friend’s house, and much more. In contrast, cell phone users generally “have no awareness of CSLI records.” In the majority’s eyes, this distinction made the case for protecting location history data even stronger than the data reviewed in Carpenter.

So why is such a characterization surprising? Because of a background rule known as the third-party doctrine. This doctrine holds that a person loses a reasonable expectation of privacy in records they share with a third party, such as phone numbers or bank records.

In Carpenter, the Supreme Court carved CSLI out from that doctrine, finding that such information was not voluntarily shared by cell phone users with the cell phone companies.

In Chatrie, however, the government argued that users do voluntarily share this information, because they arguably opt-in to Google location history. Nevertheless, the court dismissed this distinction: “A cell-phone user is not to be viewed as [voluntarily] sharing private information with third parties . . . just by doing the ordinary things cell-phone users do,” with location-tracking apps among those normal things.

This wholesale exemption of a broad swath of records from the third-party doctrine raises significant implications for other technologies. For example, Chatrie’s logic offers a clear basis for requiring warrants before accessing AI chat logs. Although these records are turned over to a third party, they are certainly as or more intimate as a list of past-visited locations.

But this decision also leaves a great deal of gray: is one’s fitness data as revelatory as one’s location? Does the third-party exemption only count for cell-phone-generated data, meaning if I generate the same information on a stationary computer I lose my expectation of privacy? The court offers little guidance on figuring out which records are “ours” enough to count as retaining a reasonable expectation of privacy.

Automatic license plate readers may prove to be the most interesting area of Carpenter-Chatrie litigation. ALPR cameras, like Flock, collect a record of a car’s location, store it, and allow it to be accessed retrospectively. Arguably, this information is revelatory: it can reveal information about when and where you’ve gone. And although collection is contemporaneous, searching ALPR databases is retrospective. Given Chatrie’s reliance on these two factors, there’s a strong argument to be made that such database queries now require a warrant. But prosecutors may (and likely will) counter: ALPRs only capture public locations, which the Chatrie court went out of its way to distinguish. How far Chatrie’s logic will stretch (whether on how “private” one’s data is or the voluntariness of surrendering this), and which factors emerge as the most important, thus very much remain to be decided.

To make matters even more complicated, in Chatrie itself the court punted a huge question back to the U.S. Court of Appeals for the 4th Circuit. It instructed that court to consider whether the actual legal process used in that case – a three-step dance between Google and the police in which Google reveals increasingly more information in response to increasingly developed police suspicion – is constitutionally sound. The process, designed by Google, goes as follows: First, after receiving the geofence coordinates and timeframe from the police, Google provides anonymized location data for cell phones present at the designated place and time. Second, the police narrow down the list and request additional information – typically for the same data over a longer period of time – about the remaining entries. Google responds. Finally, the police request the identities of an even smaller subset of that list, using other investigative tactics to narrow their request. (Because Google now stores location history locally on a user's phone, it can no longer respond to such requests with respect to this kind of data. But this general process continues to be used across companies and law enforcement agencies for other kinds of information.)

As I wrote in my Chatrie preview, a lot rides on whether this kind of process is constitutionally reasonable. This kind of search – called a reverse search – is likely only possible through some set of procedures like Google’s. Critics argue that the process lacks one of the foundational requirements of constitutional searches, particularity, which means that the police must present sufficient information about who and what they seek. Justice Ketanji Brown Jackson, for instance, spent her concurrence laying out this argument. Ruling the process unconstitutional on this basis might effectively outlaw reverse searches. So although Chatrie confirmed that the police need a warrant to access this information, it is not yet settled what kind of warrant is necessary here, as is whether this kind of search can continue at all.

We may be back in the Supreme Court with this question – and a whole host of others – in the relatively near future.

At the Court

On July 27, the Trump administration asked the Supreme Court on its emergency docket to clear the way for the implementation of President Donald Trump’s executive order on mail-in voting. Twelve states later echoed this request in their own application. Last week, the group of 23 states and the District of Columbia challenging the order asked the court to deny these requests. On Wednesday, the Trump administration urged the justices to “promptly” issue their decision. For more on the new filing, see the On Site section below.

On Tuesday, the Supreme Court released its calendar for the November argument session.

The court is set to release the second of three summer order lists on Monday at 9:30 a.m. EDT. (We discussed what these lists typically address in our July 13 newsletter.)

Morning Reads

The little-noticed Supreme Court case that could impact where people pray

John Fritze, CNN

In early 2021, Daniel Grand, an Orthodox Jew, set out “to host a small prayer session at his home near Cleveland.” But when city officials learned of his planned event, they “sent him a cease-and-desist notice demanding that he first obtain a special-use permit,” according to CNN. The resulting dispute over the city’s rules for small religious gatherings in private homes – and more specifically, the question of “whether Grand could sue before he received a definitive denial of a permit” – will be considered by the Supreme Court during the upcoming term. CNN noted that the case could “expand the power of churches, synagogues and other religious entities to challenge zoning laws that restrict their access to residential neighborhoods.”

Apple App Store Rate Proceeding Halted by Supreme Court for Now

Leah Nylen, Bloomberg (paywalled)

During the 2026-27 term, the Supreme Court will hear argument on contempt charges against Apple that were levied by U.S. District Judge Yvonne Gonzalez Rogers in a dispute between Apple and Epic Games over Apple’s App Store. Rogers held Apple in contempt after ordering it to allow game developers like Epic to direct users to external storefronts for in-app purchases, determining that the company failed to comply with that ruling when “it imposed a new 27% commission on revenue generated” through such purchases, according to Bloomberg. On Tuesday, Rogers denied Apple’s motion to pause proceedings in her court on the commission while the Supreme Court considers the case on the contempt finding. In response, Apple on Wednesday came to the Supreme Court on its emergency docket, asking the justices to stay lower-court proceedings “while the Supreme Court considers the case since a ruling by the justices could render further hearings moot.” Hours later, Justice Elena Kagan issued an administrative stay that paused proceedings for one day, giving “the high court more time to consider Apple’s request for a longer-term stop.”

New Evidence Shows Agents Using Slurs, Bolstering Profiling Claims

Jazmine Ulloa, Maia Spoto, and Jill Cowan, The New York Times (paywalled)

In lawsuits filed across the country, civil rights groups have challenged “the Trump administration’s mass deportation campaign,” contending that immigration arrests involve unlawful racial profiling. “[B]ody-camera footage, text messages and other documents emerging from” these lawsuits appear to support these claims, showing, for example, federal agents referring to “targets” by “derogatory,” race-based terms, according to The New York Times. However, “even as evidence of racial profiling has come to light, what seemed like settled law – that law enforcement officers could not question or detain someone solely based on their race or ethnicity – has turned out to be far more of an open question when it comes to immigration enforcement.” The Times noted that the Supreme Court’s 2025 emergency docket decision allowing federal officers to more freely make immigration stops in the Los Angeles area added to the confusion. “The lawsuit that led to the court’s temporary decision and other similar suits are still working their way through lower courts, and it could be months before they are resolved and years before the Supreme Court has a chance to say more.”

Bruce is dead; last-ditch plea to U.S. Supreme Court can’t save dog’s life

Scott Steepleton, Camarillo Acorn

On Wednesday, a legal battle over the fate of a dog named Bruce, who was “ordered euthanized” after “being declared vicious,” arrived on the Supreme Court’s emergency docket. Attorneys representing Santa Paula Animal Rescue Center and Bruce’s guardian, Claire Birgy, urged the justices to “prevent Ventura County Animal Services from euthanizing the dog while his federal appeal remains pending,” according to the Camarillo Acorn. That appeal asks whether the rescue center retained rights to have a say in Bruce’s future after adopting him out to Birgy. Before the Supreme Court responded to the request, Bruce was put down.

How Democrats can repair the broken Supreme Court

Adam Schiff, Los Angeles Times

In a column for the Los Angeles Times, Sen. Adam Schiff, a Democrat representing California, argued that “[f]uture Democratic majorities in Congress — perhaps starting as soon as January — should make repairing the [Supreme Court] and reforming the judicial branch a priority to make sure it does not continue to operate as a partisan and retrograde institution.” Specifically, he called on Democrats to “enact term limits for Supreme Court justices,” “expand the number of justices sitting on the court to reflect the expanded size of our nation,” and “create an enforceable code of ethics, bringing this court under the same set of rules of accountability as other leaders privileged to be in public service.” “These proposals would help restore balance and credibility to the court,” Schiff wrote.

On Site

Court News

Trump administration urges Supreme Court to issue a decision in mail-in voting dispute

The Trump administration on Wednesday reiterated its request for the court to move quickly to block a ruling by a federal judge in Massachusetts that prohibits the government from implementing part of an executive order on mail-in voting in 23 states and the District of Columbia for the November elections. U.S. Solicitor General D. John Sauer told the justices that “it is critical that the Court act promptly on the pending” request, which was filed on July 27 and has now been fully briefed for more than a week.

From the SCOTUSblog Team

Are Republicans falling out of love with the Supreme Court?

To say that Republicans are more supportive than Democrats of the Supreme Court and less supportive of reform efforts is not to say that Republicans are entirely satisfied with the court. Indeed, many new polls included signs of growing Republican unrest.

SCOTUS Outside Opinions

SCOTUS has issued its decisions. Now Congress has the floor.

In a column for SCOTUSblog, James Valvo and Cindy Crawford call on Congress to “do better” when responding to Supreme Court rulings with which it disagrees. “At the end of each Supreme Court term, it should make a habit of embracing its core constitutional responsibility by providing statutory responses to the court’s decisions,” they wrote.

Podcasts

Divided Argument

Very Civilized Orangutans

Will Baude and Dan Epps discuss Hunter v. United States, which holds that a plea bargain’s appeal waiver if unenforceable when enforcing it would work a “miscarriage of justice.” They consider where that rule comes from and why the opinion commanded so much agreement.

Amarica's Constitution

There You Go Again

The president did not file for reconsideration of the court’s birthright citizenship decision, but he nevertheless didn’t let the Constitution rest, issuing two new executive orders that purport to extend the set of persons not receiving citizenship upon their birth. Akhil Amar and Andy Lipka take a look.

A Closer Look

Utah v. Mullins

Over the past 14 years, the Supreme Court has issued three significant rulings on how the Eighth Amendment’s ban on “cruel and unusual punishments” applies in the context of sentencing juvenile offenders to life in prison without the possibility of parole.

First, in 2012, it held in Miller v. Alabama that “the Eighth Amendment forbids a sentencing scheme that mandates” this sentence, and that, in general, the sentence of life without parole should be “uncommon” and imposed only after a sentencer has considered a child’s “diminished culpability and heightened capacity for change.” Then, in 2016’s Montgomery v. Louisiana, the court considered whether Miller applied retroactively, holding that it does and again emphasizing “that sentencing a child to life without parole is excessive for all but the ‘rare juvenile offender whose crime reflects irreparable corruption.’”

Finally, in 2021, the court decided Jones v. Mississippi, which asked whether, under Miller and Montgomery, a sentencer must “make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole.” It held that no such factual finding is necessary, because, according to the majority, Miller required only “that a sentencer consider youth as a mitigating factor.”

With these three rulings, the court aimed to clear up persistent confusion over what exactly a trial court needs to consider when sentencing a juvenile offender to a life sentence without any chance of parole. And yet questions still linger, according to a petition for review awaiting the court’s attention, which urges the court to again address these circumstances.

The petition centers on Morris Mullins, who was charged with the rape and aggravated murder of Amy Davis in May 2001, when he was 17 years old. “Mullins pled guilty to aggravated murder in exchange for the State dropping the rape charge and taking the death penalty off the table,” according to the Utah Supreme Court. During the sentencing phase of Mullins’ trial, the judge considered whether he should be eligible for parole in the future, hearing competing claims about his dysfunctional upbringing and propensity for violence. The judge ultimately sentenced Mullins to life without parole but expressed hope that he would make something of his life. “[I]f you’re gonna be with us for a long time and have a chance to change, I hope—not under the present circumstances—I’m hoping you’ll find some way to be productive,” the judge said.

After the Supreme Court decided Miller, Mullins challenged his sentence, contending that the judge had not properly considered his age and that, as a result, his sentence was unconstitutional. A Utah district court disagreed, concluding that the judge had appropriately weighed Mullins’ age along with other mitigating factors. However, the Utah Supreme Court, in a divided ruling, held that the record was unclear as to whether the sentencing court “properly consider[ed] Mullins’s youth” and noted that the judge, through his final comment to Mullins, appeared to acknowledge that he “might have the capacity for change.” It vacated Mullins’ sentence and remanded the case back to the district court for resentencing.

In its appeal to the U.S. Supreme Court, Utah asserts that the state supreme court’s ruling is the product of ongoing confusion surrounding “Miller and its progeny.” The state asks the justices to address whether a judge may sentence a juvenile to life without parole even after suggesting that the “juvenile is capable of change and reform,” noting that “state and federal courts are split on” this question. Utah further argues that the Supreme Court should side with those courts that have found “that even corrigible juvenile offenders may be sentenced to” life without parole, because, in their view, “consideration of youth” is all that’s required by the Miller line of cases, not a specific outcome after such consideration.

In his response to the petition for review, Mullins contends that the U.S. Supreme Court does not have jurisdiction over his case, because it has “not reached final judgment.” This is because Mullins’ “resentencing has yet to take place.” Mullins further argues that “the question presented has little significance” for the country, because “[o]nly a small and shrinking number of states ever impose life without parole on juvenile offenders.”

Utah v. Mullins is scheduled to be considered by the justices for the first time at their “long conference” on Sept. 28.

SCOTUS Quote

JUSTICE SCALIA: “We – we have to assume ignorance of the drafter.”

JUSTICE BREYER: “Yes, ignorance of other laws.”

JUSTICE SCALIA: “As a general principle.”

JUSTICE BREYER: “That's right, general ignorance.”

— Marx v. General Revenue Corp. (2012)

President Donald Trump signed the executive order, which bears the title “Ensuring Citizenship Verification and Integrity in Federal Elections,” on March 31. As it came to the court in late July, the focus of the case was on three different provisions of the order. The first instructs the Department of Homeland Security to create lists of the adult U.S. citizens in each state and to send those lists to states at least 60 days before a federal election. The second provision commands the U.S. attorney general to “prioritize the investigation and, as appropriate, the prosecution of State and local officials … who issue Federal ballots to individuals not eligible to vote in a Federal election.” And the third provision, known as Section 3, requires states to give the U.S. Postal Service a list of voters to whom the states intend to send mail ballots, and it prohibits the USPS from mailing ballots to voters who are not on the lists of “enrolled” voters that the USPS will create.

A group of 23 states, led by California, and the District of Columbia challenged the government’s implementation of the order in a federal court in Massachusetts. Talwani ruled that it was too soon for her to review the challengers’ claims as they applied to federal elections scheduled after Nov. 3, 2026. However, she said, the challengers’ claims with regard to the upcoming midterm elections were “ripe” – that is, ready for review – because the order “created a ‘direct and immediate dilemma’” for them. In a decision issued on June 25, she barred the federal government from implementing the challenged restrictions on or before Nov. 3, 2026, in the District of Columbia and the 23 states.

The U.S. Court of Appeals for the 1st Circuit turned down the government’s request to pause Talwani’s June 25 ruling while the litigation continued. It emphasized that neither the federal government nor 12 states, led by Alabama, that had joined the case on the Trump administration’s side had argued that the executive order was legal. That court also rejected the contention that the challengers did not have a right to sue or that the case was not yet ripe.

On July 27, the Trump administration came to the Supreme Court, asking the justices to intervene. Calling Talwani’s decision “extraordinary,” Sauer renewed his argument that the challengers’ claims are not yet ripe for review because the agencies haven’t yet decided how they will implement the order. He also contended that unless the court steps in and puts Talwani’s ruling on hold, the government will be permanently harmed – one factor that courts consider in deciding whether to grant temporary relief – because it “blocks the government’s ability to finalize and implement the President’s proposed policies to promote election integrity for the upcoming federal elections in November.” Moreover, he added, “every day that it remains in place irreparably harms the government, as the start of mail-in and absentee voting in some States is now just one month away.”

In a filing on Aug. 3, the challengers countered that blocking Talwani’s ruling “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program that would, among other things, give the U.S. Postal Service far-reaching new powers and responsibilities.” They also emphasized that the 1st Circuit had agreed with them that “the specificity of the EO’s stated timelines and the inescapable legal requirements and impending deadlines that States currently face in facilitating mail-in and absentee balloting for immediately upcoming elections together establish” the kind of “concrete injury” that allows them to sue.

The catalyst for Wednesday’s supplemental brief was Talwani’s decision on Tuesday in a separate challenge to the executive order, this time brought by (among others) the League of Women Voters, that temporarily bars the U.S. Postal Service from implementing Section 3 of the executive order. Sauer stressed that Tuesday’s ruling sweeps even more broadly than Talwani’s June 25 decision because it applies “nationwide on behalf of” the various groups who are plaintiffs in the new case.

Talwani’s Aug. 11 ruling, Sauer argued, “confirms the urgent need for this Court to grant the stay of” her June 25 ruling “and to explain its rationale for doing so.” In particular, Sauer emphasized, Tuesday’s ruling suffers from the same problem as its predecessor: “Courts cannot enjoin implementation of an Executive Order that merely instructs agencies to pursue a proposed policy in a manner that is consistent with laws … unless and until those agencies actually take concrete actions that injure the plaintiffs.”

A healthy federal government depends on an ongoing conversation between the branches. But that is not currently happening. When Congress disagrees with the Supreme Court’s statutory interpretations, it tends to offer vitriol instead of a constructive response, accusing the court of being too political, or not political enough, whichever suffices. Congress must do better: At the end of each Supreme Court term, it should make a habit of embracing its core constitutional responsibility by providing statutory responses to the court’s decisions. This article, along with Americans for Prosperity’s publication “Congress Has the Floor,” suggests some tangible ways in which it can do so.

The branches in dialogue

One of the most lauded aspects of our federal government is the separation of powers between its different branches. But this separation requires a conversation between the branches as they try to exert their institutional interests, assert their views on constitutional meaning, and respond to actions by the other branches. This dynamic is well understood in the context of congressional oversight or judicial review of statutes or executive actions. One overlooked dimension, however, is how the elected branches should revise statutes following judicial interpretation of them. Specifically, when legislators conclude a different interpretation would better reflect congressional intent, or if they do not like the consequences of a court’s decision, they should debate the matter and amend the law. Civil society should likewise urge elected representatives to do so.

While congressional responses can come at any time and in reaction to various courts, the process should begin in earnest each summer at the end of the Supreme Court term. Congress should take stock of the past year’s decisions and respond when necessary. It has followed this path in the past.

One leading example of a legislative response to the Supreme Court involves the decision in the 1990 case of Employment Division v. Smith, which curtailed First Amendment protection for the free exercise of religion from laws stated in neutral and generally applicable terms. In response to Smith, Congress enacted the Religious Freedom Restoration Act. Finding that Smith dramatically weakened First Amendment protections for freedom of religion, Congress passed RFRA with the express purpose of responding to Smith’s holding by restoring religious protections and “provid[ing] a claim or defense to persons whose religious exercise is substantially burdened by government.” Under RFRA, the federal government cannot “substantially burden a person’s exercise of religion” unless it shows that imposition furthers “a compelling governmental interest” and “is the least restrictive means” to do so. In short, Congress responded to a constitutional decision by establishing a higher statutory floor to protect civil liberties.

Tobacco regulation is another example. In 2000, in FDA v. Brown & Williamson, the court ruled the Food, Drug, and Cosmetic Act did not authorize the FDA to regulate tobacco. After substantial debate, Congress responded by enacting the Family Smoking Prevention and Tobacco Control Act, the purpose of which was to establish the FDA “as the primary Federal regulatory authority . . .of tobacco products.” At the same time, the TCA prohibited the FDA from banning tobacco products. This moderating solution was among the policy choices Congress could make. The case demonstrates another benefit of Congress doing its job: the ability to make nuanced policy decisions that are not available to a court.

Yet another example is Congress’ response to the court’s interpretation of gender-based pay discrimination in Title VII of the Civil Rights Act. In 2007, in Ledbetter v. Goodyear Tire & Rubber Co., the court ruled that the deadline for suing was determined by the date on which pay level was set and not the receipt of each paycheck. This ruling limited employees’ ability to bring actions for pay discrimination. In her dissent, Justice Ruth Bader Ginsburg appropriately recognized that “the ball is in Congress’ court . . . to correct this Court’s parsimonious reading of Title VII.” Congress later did just that by enacting the Lilly Ledbetter Fair Pay Act, disapproving of the court’s interpretation of Title VII and concluding that it “unduly restrict[s] the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.” Congress then broadened the deadline for discriminatory pay claims by providing that “an unlawful employment practice occurs . . . each time wages, benefits, or other compensation is paid.” The act extended these changes to other statutes and made them retroactive.

These examples are far from exhaustive. A 2013 study by Professor Richard Hasen identified around 30 instances between 1991 and 2012 where Congress superseded Supreme Court decisions by statute. This appears to be the most recent empirical study of the matter, but, as far as we are aware, congressional responses appear to have slowed. Perhaps the most recent interesting legislative action in this vein was in 2022 when Congress responded to constitutional deficiencies in its regulation of the horse racing industry identified by the U.S. Court of Appeals for the 5th Circuit. But that kind of response has been an outlier. The more common response from Congress has been to avoid the heavy lifting of crafting viable legislation and instead to turn to threats of court packing or ad hominem attacks on individual justices. While hot rhetoric may get press attention, it dissipates congressional power and mischaracterizes the court as a mini-legislature.

Legislative opportunities after the 2025-26 term

Several recent decisions provide Congress an opportunity to respond. Below, we describe four: Learning Resources v. Trump, FCC v. AT&T, Rutherford v. United States, and Sripetch v. SEC.

Learning Resources v. Trump

The International Emergency Economic Powers Act is part of a suite of statutes granting the president certain powers if he declares an emergency. Section 1701 authorizes him to unlock those powers by declaring a “national emergency” with respect to an “unusual and extraordinary” threat from abroad “to the national security, foreign policy, or economy.” Section 1702 then authorizes the president to “regulate” “importation or exportation” to address the emergency. In Learning Resources, the Supreme Court held IEEPA does not include the power to impose tariffs or duties. Although the court limited the president’s ability to impose unilateral, global tariffs, Congress can still undertake a comprehensive review of IEEPA and related acts to either eliminate or severely constrain such emergency economic powers. For example, emergency authority could sunset after 30 days and only be extended if Congress expressly agrees with the president’s emergency declaration.

FCC v. AT&T

The Communications Act of 1934 authorizes the Federal Communications Commission to investigate and seek monetary forfeitures for violations through an administrative process. Under Section 503(b), the agency may impose penalties by issuing a notice of apparent liability, allowing for a response, and entering an order assessing a penalty. A recipient of such an order may either challenge it under the appropriate act or take no action. If the FCC wishes to collect the assessed penalty, it may refer the matter to the Department of Justice, which then brings a lawsuit in federal court, subject to the jury-trial right. In FCC v. AT&T, Inc., the Supreme Court construed Section 503(b) to not resolve legal obligations, establish facts, or create an obligation to pay. Therefore, Section 503(b) did not violate the right to a jury trial. Congress could amend Section 503(b) to require the FCC to notify companies that apparent-liability notices are not final and that they have a right to court review before they can be fined.

Rutherford v. United States

The First Step Act created a statutory mechanism for district courts to assess whether “extraordinary and compelling reasons” warrant compassionate release from federal prison sentences. The FSA also eased mandatory-minimum sentences, but those changes were not retroactive. This created a sentencing disparity between those convicted before and after passage of the FSA. In Rutherford v. United States, the court held that Congress did not allow courts to consider the sentencing disparity when deciding whether to grant compassionate release. Congress could clarify that courts may consider such sentencing disparities.

Sripetch v. SEC

The Securities Exchange Act of 1934 authorizes the SEC to seek “equitable relief that may be appropriate or necessary for the benefit of investors.” In Liu v. SEC, the Supreme Court held that this provision authorizes disgorgement (surrendering the profits of illicit activities). Congress later statutorily authorized the agency to obtain disgorgement as a remedy against a “person who received such unjust enrichment as a result of such violation.” In Sripetch v. SEC, the court held the SEC need not prove a victim’s monetary loss to obtain disgorgement. In a concurring opinion, Justice Clarence Thomas suggested disgorgement may also be a legal remedy subject to the Seventh Amendment’s jury-trial right. Congress could amend the statute to limit the SEC’s disgorgement power (1) to circumstances in which victims of securities violations suffered monetary harm, (2) to require that the SEC establish such harm in an Article III court, subject to the jury-trial right, and (3) so that any disgorged funds be awarded to victims.

And these are just a few of the court’s 2025-26 decisions that may warrant Congress’ attention.

Conclusion

Searching for the proper balance of power between the branches is, admittedly, a challenging endeavor. No institution can accomplish it on its own. Each branch has a role to play, as do state governments and civil society. One of the legislative branch’s jobs is to respond to the Supreme Court after it issues its opinions. It should stop complaining about the court’s decisions and actually address them. In other words, it is time for Congress to take the floor.

* * *

For more information, please check out Americans for Prosperity’s publication “Congress Has the Floor,” a complete list of statutory-interpretation decisions from this past term and a few helpful suggestions to jumpstart the conversation.

Democrats’ more negative views on the court, as well as the fact that justices appointed by Republican presidents currently outnumber Democratic appointees 6-3, explain why Democratic lawmakers are leading the current charge to reform the institution. They’re behind bills aimed at adding justices, imposing term limits, and changing how the Supreme Court selects and decides its cases.

But that’s not the whole story: To say that Republicans are more supportive than Democrats of the Supreme Court and less supportive of reform efforts is not to say that Republicans are entirely satisfied with the court. Indeed, many of this summer’s polls included signs of growing Republican unrest, most notably a Gallup report, released late last month, which showed that Republicans, not Democrats, were responsible for the court’s approval rating dropping to a record low of 33%.

In September 2025, 79% of Republicans said they approved of the way the Supreme Court was handling its work, a near-record high, according to Gallup. Yet by last month, that figure had fallen to 58%, a decrease of 21 percentage points. Over the same period, the court’s approval rating among Democrats (12%) was “essentially unchanged.”

Gallup pointed to President Donald Trump’s high-profile losses during the 2025-26 term as a possible explanation for the decline in Republican support. In February, the Supreme Court struck down his signature tariffs. In June, it declared his executive order limiting access to birthright citizenship to be unconstitutional and barred him from removing Federal Reserve Governor Lisa Cook from office while her challenge to her firing continues. To be sure, Trump was triumphant in other major cases on immigration policy and the president’s removal power (as well as on much of the court’s emergency docket), but, as Politico put it in an analysis of the term, Trump “keeps losing the Supreme Court cases he seems to care about the most.”

A survey report released last week by the Marquette Law School Poll showed that Trump’s losses do loom large for many Republicans. The poll found that 63% of Republicans now believe the court “rarely” or “never” rules for Trump. The figure has increased eight percentage points since May, when 55% of Republicans said the justices rarely or never side with the president.

Trump’s comments on the Supreme Court since the court struck down his signature tariffs in February have also likely played a role here. In speeches and social media posts, the president has repeatedly criticized the justices who ruled against him, particularly Justices Neil Gorsuch and Amy Coney Barrett, whom he appointed during his first term. When asked about Gorsuch’s and Barrett’s votes in the tariffs case during a Feb. 20 press conference, Trump described the ruling as “an embarrassment to their families.” On April 22, he took to Truth Social to again complain about his loss in the tariffs case and predict a loss on birthright citizenship, asserting that “certain ‘Republican’ Justices have just gone weak, stupid, and bad.” On May 10, Trump wrote that Gorsuch and Barrett “were appointed by me, and yet have hurt our Country so badly!”

Perhaps because she, unlike Gorsuch, also voted against Trump in the birthright citizenship case, Barrett has borne the brunt of Republican vitriol in recent months. Data from the Marquette Law School Poll shows that the share of Republicans who hold a favorable view of Barrett fell from 34% to 27% from January to July, a seven-percentage-point drop. Over the same time period, Republican support for four of the five other conservative justices either increased or remained stable. (The fifth, Chief Justice John Roberts, saw his favorability rating drop by a more modest amount, from 32% to 29%.)

After the birthright citizenship ruling was handed down on June 30, several prominent conservative commentators took to social media to complain about Barrett specifically. “It turns out that Amy Coney Barrett is a DEI hire, little better than [Ketanji Brown] Jackson. Terrible pick. When’s the last time we had a Republican president who didn’t put a liberal justice on the court?,” wrote podcast host Matt Walsh. Rep. Nancy Mace, a Republican from South Carolina, said Barrett “should be removed from the Bench.”

Barrett has also been featured in fundraising emails sent out this summer by conservative groups. In a campaign titled “Amy Coney Barrett DROWNING in regret,” Homeland PAC called on “patriots” to “keep up the pressure” on Barrett to reconsider the birthright citizenship ruling. “Deep down, Justice Amy Coney Barrett knows she made the WRONG decision. And now she has the power to REVERSE her ruling and safeguard our American sovereignty for CENTURIES to come,” the email said. (As SCOTUSblog reported on July 28, the deadline for asking the court to reconsider the case passed without the Trump administration filing a petition for rehearing.)

Barrett also faced a good deal of criticism after she testified before Congress alongside Justice Elena Kagan on July 14. Barrett’s descriptions of having to speak to her kids about security concerns and a recent swatting incident at her home prompted a flurry of tweets about how she has been compromised by fear and should resign from the court. Trump appeared to encourage these critics on July 29 by reposting a tweet about Barrett’s voting record before and after security threats increased following the court overturning Roe v. Wade. “Amy Coney Barrett is clearly terrified of the left,” the original post said.

Although some conservative commentators and outlets have spoken up to defend Barrett, the backlash may only grow in the term ahead, when the Supreme Court will likely consider several more cases involving Trump. The president has asked the court to review the $83.3 million verdict against him in a defamation case brought by journalist E. Jean Carroll, and his administration has urged review of one of its signature immigration policies, among other issues, as I recently reported. Additionally, the Trump administration has pushed back against the court’s rulings on tariffs, birthright citizenship, and firing Lisa Cook by imposing new worldwide tariffs, issuing a new executive order on birthright citizenship, and launching a new effort to remove Cook from office. All of these moves are fueling additional litigation, which could very well reach the Supreme Court.

The justices’ decisions in these cases and others involving Trump’s policies will likely influence whether Republicans’ approval rating for the court begins to climb back up – or continues its fall, creating a situation in which both Democrats and Republicans demand some sort of court reform or grow even bolder in challenging the current court’s institutional integrity.

At the Court

On Tuesday, the Supreme Court released its calendar for the November argument session, which lasts from Monday, Nov. 2, to Tuesday, Nov. 10. For more on the oral arguments in November, see the On Site section below.

On July 27, the Trump administration asked the Supreme Court on its emergency docket to clear the way for the implementation of President Donald Trump’s executive order on mail-in voting. Twelve states – led by Alabama – later echoed this request in their own application. Last week, the group of 23 states and the District of Columbia challenging the order urged the court to deny these requests. The matter is now fully briefed, and the court’s ruling could come at any time.

The court is set to release the second of three summer order lists on Monday at 9:30 a.m. EDT. (We discussed what these lists typically address in our July 13 newsletter.)

Morning Reads

Trump refuses to back down as Supreme Court blocks major policies

Julian Mark, The Washington Post (paywalled)

In the six weeks since the Supreme Court handed down its final ruling for the 2025-26 term, “President Donald Trump has made it clear that he will not take Supreme Court decisions as the final word on some of his most cherished priorities,” according to The Washington Post. “The president has introduced new tariffs, renewed efforts to fire Federal Reserve governor Lisa Cook and issued new executive orders to limit birthright citizenship. While experts said the moves do not signal outright defiance of the high court, they nonetheless push the limits of the rulings that Trump lost earlier this summer.” White House spokeswoman Lauren Bis told the Post that “[a]ll actions taken by the president since the recent Supreme Court rulings are consistent with the holdings and analysis set forth by the court.”

Government fights trade judge’s order for tariff refunds to all importers

Mae Anderson, Associated Press

In June, the federal government appealed an order from Judge Richard Eaton of the U.S. Court of International Trade to the U.S. Court of Appeals for the Federal Circuit, challenging his conclusion that U.S. Customs and Border Patrol must “issue refunds to all companies that paid tariffs that were deemed illegal in February, even those that didn’t file a lawsuit in trade court.” On Monday, the government filed its opening brief with the Federal Circuit, in which it asserted that Eaton has run afoul of a 2025 Supreme Court ruling limiting “the use of universal injunctions, which apply a ruling to all people or companies affected, not just specific litigants,” according to the Associated Press. “The CIT’s universal injunctions, requiring the government to refund IEEPA duties for all importers (including non-party importers), cannot possibly be squared with” that 2025 ruling, the brief said.

Women's-only spa takes fight over transgender access to the Supreme Court

Michelle Esteban, KOMO News

On Monday, Olympus Spa in Washington state asked the Supreme Court to take up a case on its challenged policy on transgender access, which states “that transgender women are welcome, but not if they are preoperative or have male anatomy,” according to KOMO News. The spa is appealing a decision from the U.S. Court of Appeals for the 9th Circuit, which held that the policy violated a state law outlawing “discrimination on the basis of sexual orientation, defined as including gender expression or identity” and that enforcement of the law against the spa did not violate the business’ First Amendment rights. “We’re asking the Supreme Court to review this case on behalf of the Olympus Spa and to hold that a spa that has an all-nude female clientele does not have to allow a male into its nude sauna area simply because he identifies as a woman,” said John Bursch of Alliance Defending Freedom, which represents the spa, to KOMO News.

William Howard Taft by John G. Roberts, Jr.

John G. Roberts, Jr., In Pursuit

In an essay on William Howard Taft for In Pursuit, a series on American presidents and select First Ladies, Chief Justice John Roberts reflected on how Taft responded to his failed reelection bid in the 1912 presidential election and the opportunity to lead the Supreme Court, contending that “Chief Justice Taft achieved the success that eluded President Taft.” “As Chief Justice of the United States, he embarked on a series of ambitious projects that enhanced the authority and prestige of the Court and the Branch,” including launching the precursor to the policymaking body for the federal judiciary and “leveraging his contacts on Capitol Hill” to get the funding the court needed to construct its own building. “Despite a relatively short tenure of less than nine years, Taft became one of the most consequential Chief Justices in our Nation’s history,” Roberts wrote.

Why didn't Justice Alito retire?

Noah Feldman

In a post for his Substack, Noah Feldman explored what may have compelled Justice Samuel Alito to delay retirement against the wishes of at least some conservatives. According to Feldman, Alito has spent most of his life, including most of his time on the Supreme Court, feeling “like an outsider.” “He was so conservative that even a fairly conservative Supreme Court was not prepared to rule in the direction that he wanted to go.” But once Justice Amy Coney Barrett joined the court in 2020 and its balance of power shifted 6-3 in favor of justices appointed by Republicans, Alito moved to “the center of power” and has more control over rulings. “Now he’s the star, and he is not about to give that up,” Feldman argued.

On Site

Court News

Challenge brought to Trump’s new birthright citizenship order

Just five days after President Donald Trump signed a new executive order that seeks to narrow the availability of birthright citizenship, lawyers for the plaintiffs who successfully challenged Trump’s earlier order restricting birthright citizenship returned to federal court in New Hampshire. In a motion filed on Tuesday morning, lawyers from the ACLU and other civil rights groups urged U.S. District Judge Joseph Laplante to clarify that the new order goes beyond the limited exception – for foreign diplomats – to birthright citizenship that the Supreme Court reaffirmed in its June 30 decision in Trump v. Barbara.

Court News

Court announces cases it will hear in November, including religious discrimination dispute

The court will hear oral arguments in November in disputes over (among other issues) a Catholic preschool’s challenge to its exclusion from a Colorado preschool program and an inmate’s ability to sue a federal prison official for violating his constitutional rights. The calendar for the justices’ November argument session indicates that the justices will hear seven hours of oral arguments over five days in November, beginning on Nov. 2 and concluding on Nov. 10.

Contributor Corner

Weakening the protection against sex discrimination?

In his Courtly Observations column, Erwin Chemerinsky revisited West Virginia v. B.P.J., in which the court upheld “a West Virginia law prohibiting transgender girls and women from participating in sports corresponding to their gender identity.” Chemerinsky contended that the ruling could hold significant implications for the issue of sex discrimination more broadly.

SCOTUS Outside Opinions

The court should hold oral argument outside of the capital

For his series on what the Supreme Court can do better, Josh Blackman wrote about why “the justices should take their show on the road,” holding “oral arguments at different courthouses throughout the country.” According to Blackman, “[t]he people outside the capital district should see how the court functions.”

Podcasts

Advisory Opinions

SCOTUS’s October Preview

David Lat takes over the host’s chair and is joined by SCOTUSblog’s Zachary Shemtob and Amy Howe to discuss Justice Samuel Alito’s retirement plans (not yet), President Donald Trump’s new executive order targeting birthright citizenship, and hot cases in the upcoming October term.

A Closer Look

The Justices’ Favorite Films

The justices are famously guarded in offering personal details. So when a justice volunteers a movie preference, it tends to stand out.

Chief Justice John Roberts, surprisingly, has perhaps had the most to say here – though not exactly by choice. During his 2005 confirmation hearing, Roberts responded to a frustrated Sen. Chuck Schumer, who said that the confirmation hearing process is “getting a little more absurd every time,” given nominees’ refusal to give any substantive answers. He continued: “It is as if I asked you what kind of movies you like. Tell me two or three good movies. And you say, I like movies with good acting. I like movies with good directing. I like movies with good cinematography. And I ask you, no, give me an example of a good movie. You don’t name one.”

After being interrupted by Senate Judiciary Committee Chairman Arlen Specter calling for a 15-minute break, Roberts dryly replied: “First, ‘Dr. Zhivago’ and ‘North by Northwest.’’’ Roberts again named “Dr. Zhivago” during a 2009 judicial conference in West Virginia, with one outlet writing that “Roberts went on and on, waxing lyrical in a very good imitation of a USC film school grad.” And in a 2012 lecture at Rice University, Roberts briefly mentioned the legal drama “12 Angry Men”: “I watched it a little while ago again with my young children. I think it’s extraordinarily inspirational; it tells you a lot about American justice.”

In 2009, Justice Clarence Thomas said that he frequently watches “Saving Private Ryan” at home, although he noted that “I can’t tell you why that particular movie, except we have it and it’s about something important in our lives – World War II.”

At a January 2019 forum at the Kennedy Center, Justice Sonia Sotomayor said that, when she was 13, she was “captivated” by “West Side Story” – the 1961 film set in the Puerto Rican community of her native New York (and specifically its songs “I Feel Pretty” and “Maria”). On the other hand, the most junior justice on the court, Ketanji Brown Jackson, has said she is “not as big a movie person” and prefers theater. “I like plays that have historical resonance,” Jackson said. “I talk about one in particular [in my book], ‘American Prophet’ … I brought my law clerks to see it.”

The final few justices’ picks are ones that Sarah mentioned in her book, Last Branch Standing. Apparently, Justice Samuel Alito’s favorite movie is “Being There.” (He has a poster for it hanging in his chambers.) Justice Brett Kavanaugh, Sarah writes, “loves movies about sports like ‘Hoosiers,’ ‘Miracle,’ and ‘Rocky.’” And Justice Amy Coney Barrett’s “binge movie” is “Meet the Parents,” although by way of TV shows she is also a “Slow Horses” fan, as is Justice Elena Kagan. Kagan, for her part, was quoted in 2015 as being a fan of comic books and named “The Avengers” as her favorite movie. (When asked whether she was “Team Edward” or “Team Jacob” in a reference to the “Twilight” films during her confirmation hearing, she did not answer, saying “I wish you wouldn’t [ask]”).

Justice Neil Gorsuch doesn’t have a comparable public record of stated film preferences, although he has referenced a few; while working in a small area for a trial that was out of town, Gorsuch called the spot “Das Boot,” after the 1981 German submarine film, and said being a student at Oxford was like “a Harry Potter movie.”

And although he’s no longer on the court, we’d be remiss not to mention Antonin Scalia’s love of the 1992 movie “My Cousin Vinnie” (which he once referred to as “my Uncle Vinnie” during an oral argument). Scalia stated that he could watch the film “over and over again” and remarked “God, she’s a killer” of the character played by Marisa Tomei.

SCOTUS Quote

MS. MARGOLIN: “… But after all Congress has 400 to 500 people that they have to get into agreement on – on language. And the court has just nine …”

JUSTICE FRANKFURTER: “But it has –”

JUSTICE BLACK: “That's – that's enough.”

MS. MARGOLIN: “Which is enough –”

— Steiner v. Mitchell (1955)

Trump’s first attempt to end birthright citizenship came at the beginning of his second term, when he signed an executive order that prohibited children whose parents were either undocumented immigrants or only in the United States temporarily from gaining automatic U.S. citizenship.

On the last day before the court’s summer recess, a majority of the court ruled that Trump’s 2025 order violated the Constitution. In his opinion for the court, Chief Justice John Roberts wrote that the 14th Amendment’s citizenship clause, which grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof,” sweeps broadly, subject only to a few “narrow exceptions” for “the children of foreign ministers and members of” some “19th-century Indian tribes.”

In the wake of the court’s decision, Trump initially indicated that he planned to ask the justices to reconsider their decision, but the deadline to do so passed in late July, and the Supreme Court has since issued a final judgment in the case.

Instead, on Aug. 6, Trump signed a new executive order, bearing the title “Continuing to Protect the Meaning and Value of American Citizenship.” At the same time, he also signed a second order, titled “Ending Birth Tourism,” that targets what the Trump administration has repeatedly characterized as a problem: travel by pregnant women to the United States to give birth so that their children will be U.S. citizens.

The new birthright citizenship order would apply to several different groups. This includes not only the children of ambassadors – that is, “foreign ministers” – but the children of a variety of other foreign citizens in the U.S., including other employees at a foreign embassy, employees of a foreign government who are in the United States in their official capacity, and employees of international organizations like the United Nations and the World Bank. Trump’s new order would also exclude from birthright citizenship any child whose parent was designated as an “alien enemy” under several federal laws.

Additionally, Trump’s order would apply to (among others) the children of parents who “engage[d] in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth” and to children born in a U.S. territory or U.S. territorial waters “where citizenship is not conferred by Federal statute.” Under federal law, babies born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are currently entitled to U.S. citizenship (while those born in American Samoa are not), although a bill recently introduced in Congress would end birthright citizenship in those territories beginning on Jan. 1, 2027.

The challengers in Trump v. Barbara on Tuesday asked Laplante to enjoin this order. In that decision, they wrote, the Supreme Court rebuffed the Trump administration’s attempt to carve out new exceptions – for the children of undocumented immigrants or parents who are only in the United States temporarily – from the 14th Amendment’s citizenship clause. In so doing, the challengers stressed, the Supreme Court “reaffirmed … that ‘the Citizenship Clause … granted citizenship to nearly all children born in the United States,’ save only ‘the “children of ambassadors” and other representatives of foreign sovereigns’ along with Native American Tribal members.” “That,” the challengers concluded, “should have been the end of this issue.”

The challengers also pushed back against any possible suggestion that Trump’s Aug. 6 order should stand because it includes some groups of people – such as the children of ambassadors – “for whom the President can legally deny citizenship.” First, they said, as the Supreme Court established, the president cannot create exceptions to the citizenship clause. And the exceptions outlined in the Aug. 6 order apply much more broadly than the narrow exception to the citizenship clause for ambassadors – to, for example, the children of other foreign nationals employed at embassies in the United States, who do not have the same kind of full diplomatic immunity as ambassadors, and to the children of individuals designated as “alien enemies.”

The challengers contended that “[i]f the President issues 100 orders seeking to create new exceptions to the sacred guarantee of the Citizenship Clause, all 100 will be equally illegal. And nothing requires this Court to countenance the continued assault on this foundational constitutional principle or issue an endless string of” orders preventing such executive orders from going into effect.

The calendar for the justices’ November argument session, released on Tuesday morning, indicates that the justices will hear seven hours of oral arguments over five days in November, beginning on Nov. 2 and concluding on Nov. 10.

The highlights of the November argument session include St. Mary Catholic Parish v. Roy, in which the court will consider whether a Catholic preschool’s exclusion from Colorado’s universal preschool program is a form of religious discrimination that violates the First Amendment. The preschool argued that the state should have provided it with an exemption from rules that would have otherwise required it to admit any student who applied, including LGBTQ children and the children of LGBTQ parents. A federal appeals court rejected that argument. It concluded that, under the Supreme Court’s 1990 decision in Employment Division v. Smith, the state’s rules did not violate the Constitution because they are neutral and generally apply to every preschool, regardless of religious affiliation.

In Nielsen v. Watanabe, the court will consider whether a federal inmate, Kekai Watanabe, who contends that his coccyx was fractured in a fight, can sue prison officials – who, he said, failed to send him to the hospital and refused several requests for medical treatment. Watanabe’s lawsuit relies on the Supreme Court’s 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents, holding that a private individual could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages. Since then, however, the justices have been reluctant to allow plaintiffs to rely on Bivens, and the federal government contends that Watanabe should not be able to do so here.

The November argument schedule

Maxwell v. Dinis (Nov. 2): Whether an inmate’s claim regarding the application of time credits, seeking accelerated transfer to a halfway house or home confinement under the First Step Act, can be brought as a petition for habeas relief.

Younge v. Fulton Judicial Circuit District Attorney’s Office (Nov. 2): Whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

St. Mary Catholic Parish v. Roy (Nov. 3): (1) Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct; and (2) whether Carson v. Makin, in which the court struck down Maine’s ban on the use of public funds for private religious schools, displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.

Guerrero v. Johnson (Nov. 4): Whether a death-row inmate’s claim that he is intellectually disabled and therefore cannot be executed falls within one of the narrow exceptions in which a state prisoner can file a second petition for federal post-conviction relief when, the state argued, he could have raised the claim in an earlier petition.

Nielsen v. Watanabe (Nov. 9): Whether the lower court properly allowed a federal prisoner’s lawsuit against prison officials to go forward under Bivens.

Hoffmann v. WBI Energy Transmission (Nov. 9): How to determine “just compensation” when a private entity uses the federal power of eminent domain to obtain rights of way to construct natural gas pipelines.

Department of Labor v. Sun Valley Orchards, LLC (Nov. 10): Whether the Department of Labor has the power to hold hearings to collect money from employers who violate the terms of the visa program for seasonal farm workers.

***

Over the years, the Supreme Court found its home in several places, following Congress from New York to Philadelphia, then to the Capitol building in Washington, D.C., before finally settling at One First Street N.E. There was a brief exception. The justices temporarily sat at the U.S. Court of Appeals for the D.C. Circuit during the anthrax scare of 2001. During the pandemic, the court started to live-stream the audio of oral arguments, but cameras are still prohibited. And the press is only allowed to take group photographs of the justices in the courtroom when a new member joins the court. These “class” photographs are limited to exactly two minutes – they are actually timed with a stopwatch. Most of the justices will assemble at a presidential inauguration, and fewer will attend the State of the Union address. But during these events, the justices (typically) remain silent. As Justice Samuel Alito explained, they have to sit quietly like “potted plants.”

The only way to see all of the justices in action is by attending oral argument in Washington D.C. Seats are very hard to come by, even with the new lottery system. For high profile cases, people have to camp outside of the court for several days, often in inclement weather. Perhaps by design, the justices thus maintain an aura of mystique, and their important work remains largely unseen. (To be sure, when a justice has a book to sell, he or she will go on a press tour and give book talks. But these solo events do not expose the justices as a collective to the citizenry.)

One obvious remedy would be to add cameras in the Supreme Court. This idea has been bandied about many times, and I have little to add. Even with or without cameras there may be another way to improve access to the Supreme Court: the justices should take their show on the road. At regular intervals, the justices should hold oral arguments at different courthouses throughout the country. The people outside the capital district should see how the court functions. It is very common for lower courts to hold oral arguments in different locations, including at law schools. The justices should do the same. And the bulk of the tickets should be available to the public, either through a lottery or some other neutral method.

The most likely sites would be the courthouses where the federal courts of appeals sit en banc, or all together: the U.S. Court of Appeals for the 1st Circuit sits in Boston, the U.S. Court of Appeals for the 2nd Circuit sits in Manhattan, the U.S. Court of Appeals for the 3rd Circuit sits in Philadelphia, the U.S. Court of Appeals for the 4th Circuit sits in Richmond, the U.S. Court of Appeals for the 5th Circuit sits in New Orleans, the U.S. Court of Appeals for the 6th Circuit sits in Cincinnati, the U.S. Court of Appeals for the 7th Circuit sits in Chicago, the U.S. Court of Appeals for the 8th Circuit sits in St. Louis, the U.S. Court of Appeals for the 9th Circuit primarily sits in San Francisco, the U.S. Court of Appeals for the 10th Circuit sits in Denver, and the U.S. Court of Appeals for the 11th Circuit sits in Atlanta. These cities fully represent the different regions of our glorious republic. (The D.C. Circuit, which is a few blocks from the Supreme Court, does not count.) The justices would see New England, the Mid-Atlantic, the South, the Deep South, the Midwest, the West, and what Justice Antonin Scalia called the “vast expanse in-between.” All of these courthouses are equipped with benches to seat the nine members of the Supreme Court. There would also be chambers where the justices and their clerks could work. These federal buildings are already secure, and could provide the appropriate accommodations for the justices.

When the justices visit a city, they should perform official good will missions. Justices should visit law schools and other educational institutions. Even better, the justices should go in pairs, so the public can see how justices who do not agree with each other can still engage in a civil fashion. Justice Elena Kagan’s recent congressional testimony with Justice Amy Coney Barrett provides a model of civility. These events would not be book talks. I find it problematic that justices, or at least their staff, have apparently prodded groups to purchase books when hosting them. The purpose of these events would simply be to speak to the next generation.

But the purpose of these missions is not just to speak. To borrow from Barrett’s new book, the justices should also listen. The justices should hold private meetings with local constituencies to hear how the law affects them. Groups could include government officials, police departments, prosecutors, civil rights groups, public defenders, and others. I don’t know how often the justices hear from regular folk about the law. The justices largely reside in their own bubbles. These missions would be an effort to pierce those bubbles. Still, these gatherings could become opportunities to grandstand, so all recording devices would be strictly prohibited.

The justices should also meet with the local press. These reporters might have questions that members of the Supreme Court press group do not. On book tours, the justices will sometimes answer pre-approved questions or speak to favorable outlets. Justice Ketanji Brown Jackson pals around on The View while Barrett chats on Fox News. The justices should not be so guarded. If a reporter asks a question that is inappropriate, the justice can decline to answer. But there is always much that can be said. And I think the press would be impressed with how carefully the justices answer questions.

How often would the justices sit outside of Washington, D.C.? To start, one sitting per year could be held in a different city. It would take about a decade to cross from sea to shining sea. But if the court follows my lead, and hears more cases, and sits year round, they could visit many courts. Admittedly, these trips would present somewhat complex logistics, and require congressional appropriations. Yet I am confident there would be a bipartisan groundswell of support to get the justices out of the beltway.

***

West Virginia v. B.P.J. involved a transgender teenager who was diagnosed with gender dysphoria at age nine and began taking puberty-blocking hormones at age 10, so she never reached male puberty. She is now receiving female hormones. B.P.J. was barred from participating in sports because of the West Virginia law and sued. She prevailed in the lower courts, which ruled in her favor, concluding that the West Virginia law violated both the equal protection clause of the 14th Amendment and Title IX of the Civil Rights Act, which prohibits sex discrimination by educational institutions receiving federal funds.

The court unanimously rejected her Title IX claim, stressing that the statute expressly allows for sex segregated sports teams. But the court split 6-3 as to whether the West Virginia law violated equal protection. Justice Brett Kavanaugh wrote for the court and said that the case was about sex discrimination: B.P.J. was kept from playing on the girls’ team because of her biological sex.

It is well established that sex discrimination by the government must meet intermediate scrutiny under equal protection; that is, for the government action to be constitutional it must be substantially related to an important government purpose. The court said that the state had an important interest in barring transgender girls and women from participating in sports corresponding to their gender identity because they would have a competitive advantage and because they would create a safety issue for other players. The court also said that transgender girls would take spaces on girls’ teams that otherwise would go to cisgender girls. Kavanaugh wrote:

Based on all of the above, the States argue—and we agree—that the interests in safety and competitive fairness are important for purposes of equal protection analysis. And the States’ sex-based classification—limiting women’s and girls’ sports to biological females—is substantially related to those interests. Therefore, schools may maintain women’s and girls’ sports for biological females. In other words, schools may determine eligibility for women’s and girls’ sports based on biological sex.

Although the majority did not say so, it actually departed from the ways in which it has provided protection against sex discrimination under equal protection. First, the court did not mention the prior decisions which said that sex discrimination is allowed only if there is an “exceedingly persuasive justification.” In the 1996 case of United States v. Virginia, the Supreme Court declared unconstitutional the exclusion of women by the Virginia Military Institute. Justice Ruth Bader Ginsburg applied intermediate scrutiny and said that “[p]arties who seek to defend sex-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action. . . . The burden of justification is demanding and it rests entirely on the State.” Ginsburg said that the justification “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

Thus, the court was requiring more than traditional intermediate scrutiny – what some have labeled “intermediate scrutiny plus.” But in B.P.J.,by omitting the language requiring an “exceedingly persuasive justification” for sex discrimination, it would appear the court was implicitly changing the law and lessening the constitutional protection against such discrimination.

Additionally, Kavanaugh’s majority opinion said that it was sufficient to look at the overall justification for the law, and, given this, there did not need to be a focus on whether B.P.J. was unjustifiably discriminated against on account of her sex. But in many other cases the Supreme Court has rejected generalizations as a basis for sex discrimination and required individualized assessments. For example, in 1979’s Orr v. Orr, the court invalidated an Alabama law that allowed women, but not men, to receive alimony in case of divorce. The court explained that “[u]nder the statute, individualized hearings at which the parties’ relative financial circumstances are considered already occur. . . . Needy males could be helped along with needy females with little if any additional burden on the State.” But in B.P.J. the court rejected the need for an individualized analysis as to whether B.P.J. would have a competitive advantage or pose a safety risk to other players by virtue of being transgender.

This was a key point made by Justice Sonia Sotomayor in a dissenting opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor said that the question in this case was whether discriminating against B.P.J. was justified. She explained that the issue is not whether excluding transgender girls and women generally is permissible, but whether it was shown that barring B.P.J. – a teenager who began puberty-blocking hormones at age 10 – was needed to preserve competitive balance in sports or to prevent injuries. She said that this is a factual question and that the court should have sent the case back to the lower courts to determine this. She wrote:

the majority concludes that B. P. J.’s claim fails regardless of the unresolved factual dispute over whether transgender girls are similarly situated to cisgender girls for the reasons B. P. J. gives. That is wrong. As the Court's precedents recognize, factual disputes like this one relate to the fit of the classification and whether it survives heightened scrutiny.

Third, the court expressed the need for deference to the West Virginia legislature as to whether the bar on transgender girls and women from participating in girls’ and women’s sports was justified. The court said that the government did not need to prove that B.P.J., or those in her situation, would pose a safety risk or have a competitive advantage. The government could make an overall judgment. And the court said that even if such proof was required, there is sufficient medical uncertainty that there should be deference to the West Virginia legislature.

The court stated: “In any event, the plaintiffs’ premise is the subject of ongoing medical and scientific debate and is not settled in their direction at this time. States and leading athletic organizations disagree with the plaintiffs and have concluded that biological males still retain a physical advantage after taking puberty blockers and hormones.” The court recognized that “[t]he plaintiffs counter with arguments and studies of their own. But in assessing state and federal laws passed under circumstances of ‘medical and scientific uncertainty,’ this Court has often said that the Judiciary must be cautious about swooping in and invalidating laws. The legislatures, we have emphasized, maintain ‘wide discretion to pass legislation’ in those circumstances.”

Yet such deference to the legislature is characteristic of rational basis review (in which a law will be upheld if it is rationally related to a legitimate government purpose), not intermediate scrutiny. Sotomayor explained this well:

[T]he majority suggests that, even if relevant, the factual dispute implicates scientific uncertainty and that West Virginia's decision is thus entitled to conclusive deference. Here, too, the majority missteps, invoking cases applying rational-basis review, citing extra-record evidence, and ignoring critical context merely because it is inconvenient.

Perhaps West Virginia v. B.P.J. will be regarded as a case about applying sex discrimination principles to discrimination based on gender identity and not carry over to sex discrimination more generally. But the court could have decided this as a case about gender identity discrimination. It chose not to do so and instead to analyze the West Virginia law as sex discrimination under intermediate scrutiny. By doing so, the court raises real concern that it has watered down intermediate scrutiny and lessened the protections against sex discrimination. In that, the case may take on even greater significance than its critics have recognized.

At the Court

On July 27, the Trump administration asked the Supreme Court on its emergency docket to clear the way for the implementation of President Donald Trump’s executive order on mail-in voting. Twelve states – led by Alabama – later echoed this request in their own application. Last week, the group of 23 states and the District of Columbia challenging the order urged the court to deny these requests. The matter is now fully briefed, and the court’s ruling could come at any time.

Morning Reads

The Delusions of John Roberts

Margaret Talbot, The New Yorker (paywalled)

In a profile of Chief Justice John Roberts, The New Yorker explored Roberts’ path to the Supreme Court and how he, as chief justice, is navigating the Trump era. “[I]t must be confounding to have Roberts’s job these days,” Margaret Talbot wrote. “In one sense, he’s been getting so much of what he has long believed in: the weakening of the administrative state, the enlargement of Presidential power, and the rollback of affirmative action and of voting-rights protections for minorities, which he thinks our society no longer needs.” But he “is compelled to deal with a President especially likely to abuse” the power he’s gained. “For a man like Roberts, to whom the label ‘institutionalist’ attaches like an epithet in the Odyssey, perhaps the only thing worse than Trump’s excoriation of the Justices is his gratitude when they do what he wants.”

After Supreme Court Win, Trump Officials Under Pressure to Deport Haitians

Madeleine Ngo and Hamed Aleaziz, The New York Times (paywalled)

In a June 25 ruling on the Temporary Protected Status program, the Supreme Court cleared the way for the Trump administration to end deportation protections for about 350,000 Haitian nationals. Now, “[t]he Trump administration is facing pressure on the right to ramp up arrests of” these Haitians, but struggling to navigate a number of issues, according to The New York Times. “[L]ogistical challenges to deporting such a large group to an unstable country, and a lack of internal guidance within Immigration and Customs Enforcement, have complicated the effort. Some Republican politicians have also voiced concerns about the impact on certain industries if Haitian workers were deported en masse.”

Trump's attack on 'birth tourism' faces uphill legal battle after Supreme Court ruling

Andrew Chung, Reuters (paywalled)

On Thursday, President Donald Trump signed two executive orders on birthright citizenship and “birth tourism” – that is, travel by pregnant woman to the United States so that their babies will have U.S. citizenship. Legal scholars told Reuters that the restrictions on birth tourism are unlikely to withstand Supreme Court scrutiny because the court’s June ruling on Trump’s original birthright citizenship order said “[t]hese children are citizens based on their birth on U.S. soil.” Scholars were more “divided over whether courts might allow” Trump “to expand historical exceptions to automatic birthright citizenship” by, for example, widening the exception that applies to the “children of diplomatic representatives” to include the children of “foreign government employees.” “Expanding the category of diplomats is potentially legal, depending on how it is done, said [Amanda] Frost, ‘though that requires giving those people significant immunity from U.S. law.’”

Tenn. death row inmate asks US Supreme Court to halt Thursday execution

NewsChannel5 Nashville

Attorneys for Anthony Darrell Dugard Hines, who was sentenced to death in Tennessee for the murder of Catherine Jenkins, have asked the Supreme Court to halt his execution, scheduled for Thursday. “The attorneys argue Hines faces a heightened risk of severe pain because of his medical condition and concerns surrounding Dr. Mark Fowler, a physician who participated in Tennessee’s failed attempt to execute Tony Carruthers in May. Carruthers’ May 21 execution was stopped after the state’s execution team was unable to establish the necessary IV access,” according to NewsChannel5 Nashville. “Hines, 66, has suffered two strokes this year and is partially paralyzed, according to his attorneys,” who say these conditions will complicate the execution process.

Author of ‘How to Kill a Federal Judge’ convicted on multiple counts

Shirley Henderson, ABA Journal

Phillip Ivers, 73, author of a book titled How to Kill a Federal Judge, “was found guilty Friday of two counts of distributing threatening communications and one count of threatening members of the judiciary,” according to the ABA Journal. Ivers was previously convicted in 2019 “of plotting to kill U.S. District Judge Wilhelmina Wright of the District of Minnesota and sentenced to 18 months in prison.” He was arrested again in 2025 after being discovered “printing copies of his book at a library in Wayzata, Minnesota.” “Prosecutors said Ivers informed police that he also sent copies of his book to all nine U.S. Supreme Court justices.”

On Site

Contributor Corner

12 angry men – or six?

In her In Dissent column, Anastasia Boden revisited Williams v. Florida, a 1970 case in which the court held that 12-person juries are not required under the Sixth Amendment. “Justice Thurgood Marshall dissented,” contending “that the court had cast aside both the historical meaning of ‘jury’ and an unbroken line of precedent,” according to Boden. The court will again consider whether juries must have 12 members this fall in Kian v. Florida.

SCOTUS Outside Opinions

The Supreme Court and the Indian nations

In a column for SCOTUSblog, Joseph William Singer explored the Supreme Court’s “complicated role in shaping the legal relationship between Indian nations and the United States and the state governments.” “[E]ven as Congress and the president have come to favor tribal sovereignty,” Singer wrote, an old debate over whether the Indian nations are to be treated as “independent political communities” or “savages” “continues to haunt the Supreme Court’s understanding of American law.”

A Closer Look

Homer Plessy

This is the third entry in our series of Closer Looks on some of the most famous Supreme Court plaintiffs.

Homer Plessy, the plaintiff in the notorious 1896 case of Plessy v. Ferguson, in which the Supreme Court upheld the constitutionality of the doctrine of “separate but equal,” is generally believed to have been born on March 17, 1862 or 1863, in New Orleans. His father, Joseph, a carpenter, and his mother, Rosa Debergue, a seamstress, were both free Creole peoples of French and African descent. Plessy’s paternal grandfather Germain Plessy was a white Frenchman who moved to New Orleans after the Haitian Revolution. Both of his maternal grandparents were multiracial.

Plessy grew up in Louisiana during the Reconstruction era when Black political participation expanded and schools were integrated.

Plessy’s father passed away when he was around only seven years old. Two years later, his mother married Victor M. Dupart, a clerk for the U.S. Postal Service, who also worked on the side as a shoemaker. Dupart was likely responsible for one of Plessy’s first introductions to civil rights activism. Dupart was a member of the Unification Movement of 1873, a multiracial coalition that pushed for racial equality.

Plessy, like his stepfather, became a shoemaker. Also like his stepfather, he was active in civil rights organizing in Louisiana when many of Reconstruction’s gains were dismantled and Jim Crow segregation was imposed. In 1887, he became the vice president of the Justice, Protective, Educational, and Social Club, an organization that worked to ensure “our rights as citizens of this State and of the United States [are] protected and respected.”

In 1890, Louisiana passed the Separate Car Act, which required separate railcars for Black and white passengers. Under this law, Plessy, who described himself as “seven-eighths Caucasian and one-eighth African blood,” was classified as “colored.” Plessy, through the Comité des Citoyens (Committee of Citizens), a civil rights organization, agreed to be a plaintiff for a test case to challenge the constitutionality of the Separate Car Act.

On June 7, 1892, Plessy bought a first-class ticket for a train from New Orleans to Covington, Louisiana, on the East Louisiana Railroad Company’s Number 8 train. The conductor, J.J. Dowling, approached Plessy and asked him, “Are you a colored man?” After Plessy answered in the affirmative, Dowling said: “Then you will have to retire to the colored car.” After refusing to move cars, a private detective, Chris Cain, along with a group of passengers, forced Plessy out of the train. Notably, Dowling, Cain, and the East Louisiana Railroad Company were all aware that Plessy was attempting to establish standing for a test case and were in contact and cooperating with the Comité ahead of time.

Plessy was charged with violating the Separate Car Act, and he argued that this was unconstitutional under the Constitution’s 13th and 14th Amendments. In November 1892, Judge John Howard Ferguson upheld the legality of the act. A month later, the Louisiana Supreme Court unanimously affirmed Ferguson’s decision. Plessy appealed to the U.S. Supreme Court.

In May 1896, the Supreme Court held that the Separate Car Act did not violate the Constitution’s 13th or 14th Amendments, establishing the doctrine of “separate but equal,” which allowed for the government to racially segregate groups if the facilities were of “equal” quality. Justice John Marshall Harlan wrote the sole dissenting opinion, declaring that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Nearly 60 years later, in the case of Brown v. Board of Education, the Supreme Court rejected Plessy’s “separate but equal” doctrine in the educational context, a decision that eventually led to the dismantling of the framework upheld in that case.

After the Supreme Court’s decision, Plessy returned to Ferguson’s courtroom where he entered a guilty plea and paid a $25 fine for violating the Separate Car Act.

Following the case, Plessy returned to private life. The formation of major shoemaking companies resulted in a decline in local shoemakers, so Plessy sought employment in other fields, including as a laborer, clerk, warehouseman, and an insurance collector. He remained active in New Orleans’ philanthropic and fraternal organizations including the Société des Francs-Amis, the Cosmopolitan Mutual Aid Association, and the Scottish Rites Masons.

Plessy passed away on March 1, 1925. He was interred in the Debergue-Blanco family tomb in Saint Louis Cemetery located in New Orleans. In 2022, Louisiana Governor John Bel Edwards posthumously pardoned Plessy. The proclamation signed by Edwards praised Plessy for his “heroism and patriotism,” as well as his “unselfish sacrifice to advocate for and to demand equality and human dignity for all of Louisiana’s citizens.”

SCOTUS Quote

MR. MARTIN, JR.: “… Now, I think that you were right that for example the Indians were complaining that so much fishing was being allowed out in the Sound that no fish can get back to the river, perhaps they would have a right to bring a suit and perhaps the Secretary –”

JUSTICE BLACK: “Does the government have a right to bring one? Does the Attorney General have the right to bring [a suit] on the part of the Indians?”

MR. MARTIN, JR.: “Well, I think it may be possible being Secretary of Interior in view of his wide jurisdiction and they might have such a right.”

JUSTICE BLACK: “But why couldn't [that] be done? Why should it be thrown into our lap in this vague fashion?”

MR. MARTIN, JR.: “ … I didn't throw it there.”

— Puyallup Tribe v. Department of Game of Washington (1968)

***

Indian nations occupy two distinct places in American history and law. American Indians are mentioned only once in the Declaration of Independence. They are in a phrase complaining about King George III’s alliances with Indian nations to oppose American invasion of Indian country, and they are described, not as nations, but as “merciless Indian Savages.” Nor was this a slip of the tongue or a brief emotional outburst. The lawyer for the plaintiffs in the 1823 Supreme Court case of Johnson v. M’Intosh similarly referred to Native peoples as “savage tribes,” and even Chief Justice John Marshall described them as “fierce savages.” On the other hand, both the lawyer for the defendants and the Supreme Court in its opinion referred to them as “tribes or nations” or “Indian nations.” And the 1832 case of Worcester v. Georgia referred to “Indian nations” as “distinct, independent political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.”

The contrast between “savages” and “nations” reflects a deep ambivalence about the relationship between the United States and the Indian nations. Over the course of U.S. history, the “savages” formulation sometimes prevailed, either to justify removal of Indians from lands east of the Mississippi River from the 1830s to the 1860s or as a reason to “civilize” the Indians by outlawing tribal religion, promoting conversion to Christianity, privatizing tribal lands, and kidnapping tribal children to be educated at harsh boarding schools. But, in other eras of U.S. history, the United States treated Indian nations as distinct political communities with inherent sovereignty and the power to enforce their own laws within their own territory. That was the case in colonial times and the early republic when the U.S. entered treaties with Indian nations, and the New Deal era when the U.S. encouraged Indian nations to adopt written constitutions and to revitalize their governments. It has also been the general national policy ever since 1975 when the United States embraced self-determination for Tribes.

Nevertheless, it is possible to graduate from many (but not all) law schools in the United States and never hear the words “tribal sovereignty.” Many residents of the United States (including law students) are unaware of the fact that the United States has never conquered the 575 federally recognized Indian nations who retain their inherent sovereignty and continue to thrive as “distinct, independent political communities.” Yet every president since Richard Nixon, whether Republican or Democratic, has affirmed the “government-to-government” relationship between the United States and the various Indian nations, and every Congress since that time has, with some exceptions, respected tribal sovereignty. Just last year, on Dec. 18, 2025, President Donald Trump signed a congressional bill recognizing the inherent sovereignty of the Lumbee Tribe of North Carolina.

The fact that the U.S. has chosen to respect tribal sovereignty, at least in part, is to its credit. Indeed, the persistence of tribal sovereignty is a testament to the norm of self-determination which condemns both imperialism and colonialism. The United States itself originated with the belief that it had a right to self-determination. And while the U.S. has not always honored the Tribes’ right to self-determination, as noted, since 1975 both Congress and the president have generally recognized and respected the inherent sovereignty of the 575 Indian nations.

Throughout this, the Supreme Court has played a complicated role in shaping the legal relationship between Indian nations and the United States and the state governments. At various times in history, it has strongly affirmed that Tribes have inherent sovereignty that predates the United States and persists to this day. But at other times, the court has authorized government actions that limit tribal sovereignty or which even terminate the government-to-government relationship between the United States and dozens of Tribes. And while the Supreme Court has maintained its strong support for tribal power over their own members, it has severely restricted the powers of Tribes to regulate nonmembers who enter their territory.

In 2016, for example, the court divided 4-4 in a case about whether the Tribal Court of the Mississippi Band of Choctaw Indians could hear a case by a tribal member against a nonmember corporation when its employee sexually abused a tribal child. The company leased land from the Tribe, obtained a business license from the Tribe, and agreed to participate in an unpaid internship program for tribal minors. The sexual abuse of the Choctaw child took place on Choctaw land within Choctaw territory. The 4-4 vote meant that the Supreme Court did not find it easy to determine whether the Tribe would have the power to protect its own children from harm on tribal lands.

This did not make sense as a matter of precedent. The Supreme Court had held in 1981, in the case of Montana v. United States, that Tribes can regulate non-Indians “who enter consensual relationships with the tribe . . . through commercial dealing, contracts, leases, or other arrangements” and/or who engage in conduct on nonmember land when it “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” One might think that the rape of a tribal child on tribal land within tribal territory threatens the health or welfare of the Tribe, especially when it arises out of three consensual relationships with the Tribe. Yet four justices thought non-Indians should not have to appear in tribal courts to answer a civil claim even when they enter tribal land within the Tribe’s territory and rape a tribal child.

Perhaps four of the justices regret their ruling in Montana that authorized tribal court suits by Tribes or their members against nonmembers when they harm tribal interests. Perhaps they imagine that Tribes will be unfair to non-Indians, given the sorry history of mistreatment of Indian nations by the states. Perhaps they sympathize with non-Indians who are ignorant of tribal sovereignty and never contemplated being subject to the regulatory powers of tribal councils and courts. If so, we are seeing the echoes of the attitude toward Native nations displayed in the Declaration of Independence.

But the court’s recent record has not been entirely to deny tribal sovereignty. In 2020, the Supreme Court held by a vote of 5-4 in McGirtv. Oklahoma that because Congress had never formally disestablished the Muscogee Reservation in Oklahoma that it persists to this day. To the surprise of many, maps had to be changed because much of the state of Oklahoma is now also Indian country. That means that non-Indians entering tribal lands may well be subject to tribal law. Only two years later, however, in the case of Oklahoma v. Castro-Huerta, the court held that states have concurrent jurisdiction with the federal government over crimes by non-Indians against Indians in Indian country. While not directly limiting tribal sovereignty, the Castro-Huerta majority subjected tribal members to state law in a manner that was inconsistent with two hundred years of legal practice (and McGirt).

At the very least, the split votes in the Choctaw, Castro-Huerta, and McGirt cases tell us that – even as Congress and the president have come to favor tribal sovereignty – the contest between the nations’ historically dueling views of Indian nations continues to haunt the Supreme Court’s understanding of American law.

More than half a century ago, in Williams v. Florida, the court acknowledged that since before the founding, juries had consisted of 12 people but concluded that the number was a “historical accident… wholly without significance ‘except to mystics.’” Because six jurors could adequately perform the functions of a jury, it said, the Sixth Amendment did not require a dozen.

Justice Thurgood Marshall dissented. The man who had seen firsthand the importance of a fair and impartial jury argued that the court had cast aside both the historical meaning of “jury” and an unbroken line of precedent simply because a majority considered the traditional rule unnecessary. Since then, Justice Neil Gorsuch has taken up Marshall’s mantle and repeatedly authored dissents from the court’s refusal to reconsider this issue. The pair’s dissents are united by the proposition that judges are entrusted to preserve constitutional protections even when some believe they can be harmlessly discarded. And this term, they might be vindicated.

How six became enough

The path to a six-person jury began, paradoxically, with a decision expanding defendants’ rights. In Duncan v. Louisiana in 1968, the court held that the Sixth Amendment right to a jury trial applies not just to the federal government, but also to the states through the 14th Amendment. That decision immediately raised a second-order question: Which attributes of a federal jury must the states provide?

Florida provided an early test. The state had reduced its 12-member jury requirement in all but capital cases after the end of the Civil War. It had also imposed limits on who could serve on the jury with the aim of excluding Black jurors. The result was that it was so rare for Black Floridians to serve on a jury that newspapers all the way into the 1950s found it worth writing about when a Black juror was selected.

Johnny Williams challenged his robbery conviction on the basis that the Sixth Amendment guaranteed him the same 12-person jury that had existed at common law and that federal courts had long said 12 jurors were guaranteed by the Sixth Amendment, “neither more nor less.”

A majority of the Supreme Court saw it differently, however. In their view, a “12-man panel” was not a “necessary ingredient,” but instead a “historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” Justice Byron White wrote that merely because “a given feature existed in a jury at common law in 1789” did not necessarily mean it was enshrined in the Constitution. And the purposes of a jury – bringing community judgment into the courtroom and guarding against injustice – could be accomplished by fewer than 12.

The available empirical evidence did not convince the majority otherwise. Although a larger jury theoretically increased the number of viewpoints represented, the court predicted that the practical difference would be negligible. It likewise doubted that reducing the panel from 12 to six would meaningfully change the accuracy of factfinding or reduce the likelihood of a hung jury. As the majority concluded, to “forever codify” a feature incidental to the amendment’s purpose would be to “ascribe a blind formalism to the Framers.” Following Williams, although most states retained a 12-person jury, they were not constitutionally compelled to do so.

The case also produced an illuminating exchange between Justices John Marshall Harlan II and Hugo Black about incorporation (applying the entire Bill of Rights to the states), over which they frequently sparred. Harlan had dissented in Duncan because he rejected incorporation of the Sixth Amendment. In Williams, however, he concurred because he believed that the historical case for a 12-person federal jury was overwhelming. The majority, he surmised, wanted to give the states “more elbow room” to administer their criminal systems, which he was sympathetic to. But he objected to also watering down the Sixth Amendment for federal courts in the process, which, in his view, historically required 12-person juries.

Black, the court’s leading champion of incorporation of the entire Bill of Rights, rejected the idea that the majority sought to “dilute the Sixth Amendment in order more easily to apply it to the States.” While Harlan saw danger in incorporation, Black warned of the danger in Harlan’s approach, which would allow judges to arbitrarily decide which safeguards were sufficiently “fundamental” to bind the states. Under that approach, constitutional rights would depend on subjective assessments of fairness.

Marshall, for his part, agreed with Harlan on one point and with Black on another. Like Harlan, he believed that the Sixth Amendment guaranteed a jury of 12. But like Black, he thought that constitutional rights, once incorporated, applied equally against the federal government and the states. He therefore wrote his own dissent – although one remarkably restrained given his experience litigating jury trials.

From Marshall to Gorsuch

Marshall hardly needs an introduction. The first Black United States solicitor general and the first Black justice, he argued Brown v. Board of Education and, as his clerk Elena Kagan said of him, was “the greatest lawyer of the 20th century.” Born in Baltimore in 1908, when lynchings were still a horrifying fact of American life, Marshall learned to argue at his father’s dinner table, where issues of the day were debated nightly. He had a mischievous streak that often landed him in trouble at school and led to a teacher punishing him by making him memorize the Constitution. After the University of Maryland Law School rejected him because of his race, Marshall attended Howard University School of Law, where he met his mentor, Charles Hamilton Houston, with whom he would help shape the legal strategy that would eventually dismantle segregation.

After law school Marshall spent years defending Black criminal defendants in the Jim Crow South. Traveling from town to town for the NAACP with Houston and others, he ate meals in the car because restaurants would not serve him, slept in safe houses, avoided driving after dark, and sometimes commuted miles each day rather than stay in hostile communities. They represented people who had been coerced into confessing, tried before all-white juries, and then sentenced to death in proceedings that bore little resemblance to justice. He once recalled that in some Southern courtrooms, juries would return guilty verdicts in the time it took one juror to smoke a cigar. Marshall knew firsthand that criminal procedure could mean the difference between life and death.

Yet his dissent in Williams did not invoke those experiences or dwell on racial injustice. Instead, he relied on constitutional history and case law, pointing to an “unbroken line of precedent going back over 70 years.” The majority, Marshall wrote, had not offered a convincing reason to rule otherwise. In his words, its “circumvention of history [was] compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members.”

Half a century later, the court revisited a different feature of the Sixth Amendment jury guarantee in Ramos v. Louisiana. Around the same time as Williams the court had ruled in Apodaca v. Oregon that unanimity was not constitutionally required for state felony convictions. In Ramos, it reversed course. Writing for a fractured majority, Gorsuch criticized the court’s earlier decision in Apodaca in ways that echoed Marshall’s objection to Williams. The problem was not that Apodaca had conducted its cost-benefit analysis poorly. Rather, the court had no business subjecting an ancient constitutional guarantee to functional balancing in the first place. When the people included the jury right in the Constitution, Gorsuch wrote, they were not proposing “fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.” Gorsuch also relied heavily on the history of racism when it came to states tinkering with their jury requirements.

Ramos’ reasoning would seem to make Williams difficult to defend. If the word “jury” carries the meaning it bore when the Sixth Amendment was adopted, and if that right cannot be balanced away, why does it include the common law requirement of unanimity but not the equally familiar requirement of 12 members? Nevertheless, when criminal defendants asked the court to reconsider Williams, the court repeatedly declined.

Gorsuch dissented from these denials to reconsider Williams. In Khorrami v. Arizona, which challenged Arizona’s conviction of Ramin Khorrami before a jury of eight, Gorsuch amassed founding era sources, 19th century treatises, state court decisions, and Supreme Court precedents supporting the 12-person rule. “Williams was wrong the day it was decided,” he wrote, “it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation’s courts.”

Two years later, he wrote a similar dissent from denial in Cunningham v. Florida. Florida had sent Natoya Cunningham to prison for eight years “on the say of just six people.” This time Gorsuch placed responsibility squarely on the court: “Florida does what the Constitution forbids because of us.” Williams, he argued, had replaced constitutional meaning with bad social science – research that came under scrutiny almost as soon as the decision appeared. Though the case failed to secure the four votes needed for review, Gorsuch “hope[d]” that someday this would happen.

In 2026, that day arrived.

The return of 12?

Hamed Kian was charged with five counts of practicing chiropractic medicine while his license was suspended and convicted by a six-person jury in Florida. He was sentenced to just over a year in prison and five years of probation. The Florida appellate court rejected his Sixth Amendment challenge under Williams, but this year, the Supreme Court took up his case to reconsider whether a 12-person jury is constitutionally required.

Kian contends in his petition that at the founding, the phrase “trial by jury” had an established legal meaning that included 12 members. The court recognized that meaning repeatedly before abruptly abandoning it in 1970. What’s more, the functional premise of Williams has not aged well. According to him, research since the decision indicates that larger juries tend to deliberate longer, recall evidence more accurately, include a broader range of viewpoints, and rely less on irrelevant information. Kian also suggests that jury size was reduced for racist reasons – in Gorsuch’s words, as “a systematic effort to suppress minority voices in public affairs.”

Florida responds that Williams has governed for 56 years and generated enormous reliance interests. Florida and five other states use juries smaller than 12 in at least some criminal trials. Florida says roughly 5,000 convictions of cases tried before six-member juries are currently pending on direct appeal in its courts alone. It also disputes Kian’s reading of the history and the empirical literature, arguing that the Sixth Amendment preserved the jury’s essential function – “as a device for insuring that the Government bear the heavier burden of proof” – rather than every detail of common law practice. Larger groups, the state adds, can invite freeriding or domination by forceful personalities. The evidence does not establish that six-member juries are constitutionally deficient, it says, and there are race neutral reasons for having them.

The court’s recent treatment of the right to a jury trial is mixed. Although the court chose to reinstate the unanimity requirement in Ramos, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Elena Kagan, dissented, accusing the majority of giving stare decisis “rough treatment.” Similar concerns will return in Kian, attached to decades of state practice and thousands of judgments.

Perhaps six people can deliberate carefully. And perhaps many six-person verdicts are perfectly sound. The question in Kian is whether the judgment about that number’s adequacy belongs to social scientists, legislators, or judges – or whether the people who adopted the Sixth Amendment settled it when they guaranteed a “jury.”

At the Court

On July 27, the Trump administration asked the Supreme Court on its emergency docket to clear the way for the implementation of President Donald Trump’s executive order on mail-in voting. Twelve states – led by Alabama – later echoed this request in their own application. Last week, the group of 23 states and the District of Columbia challenging the order urged the court to deny these requests. The matter is now fully briefed, and the court’s ruling could come at any time.

Morning Reads

Justice Samuel Alito: ‘Practical Originalism’ and Its Facile Critics

James Taranto, The Wall Street Journal (paywalled)

In an interview with The Wall Street Journal, Justice Samuel Alito shared that he will not leave the court this summer. “Obviously I’m here for another term,” he said. Alito reflected on the speculation surrounding his retirement decision, including calls from conservatives for him to leave the court while Republicans control the White House and Senate. “It’s not pleasant, in the sense that it’s a reminder of mortality,” he said. “It’s like, what are those vultures doing up there? They are flying around. But it goes with life tenure.” Alito also discussed critiques of his work on the court, including the claim that he is “especially vulnerable to a charge of partisanship.” “I vote in every case the way I think the case should be decided,” he said. “If that means a high correlation with what Trump wants, fine. If it means zero correlation with what Trump wants, fine as well. I think it’s wrong, it’s absolutely wrong, to say, ‘Well, you know what? I’m going to decide some cases this way and some cases the other way so that people will say, “Well, he’s objective, because sometimes he favors this side and other times he favors that side.”’”

Appeals Court Upholds Block on Trump Ballroom Construction

Zach Montague and Mattathias Schwartz, The New York Times (paywalled)

On Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit, by a 2-1 vote, ruled that “President Trump cannot continue building the ballroom he planned as a replacement to the East Wing of the White House without explicit approval from Congress,” upholding “a lower court’s findings that no law or authority gave the president the power to raze and replace sections of the White House without congressional authorization,” according to The New York Times. The decision “dealt a blow to Mr. Trump’s efforts to press ahead with the project and drew an angry rebuke from the president, who vowed to appeal to the Supreme Court.” However, construction will not stop immediately. “The judges paused their ruling for 14 days to give the administration a chance to appeal.”

Conservatives meet to make birthright citizenship their long-term project

Myah Ward, Politico

Before President Donald Trump on Thursday “unveiled two new executive orders narrowing birthright citizenship and cracking down on ‘birth tourism’ schemes,” efforts were already underway among conservatives to energize a movement against the Supreme Court’s birthright citizenship ruling. “The president’s allies said they plan to make ending birthright citizenship a recurring topic at conferences and law schools where the next generation of lawyers will be trained,” according to Politico. “They turned birthright citizenship into the next Roe v. Wade, that we’re going to have to spend the next 50 years overturning,” said Mike Davis, the founder of Article III Project, a Trump-aligned legal organization, at a late-July event on the issue.

Trump's firings of federal officials set stage for next test of presidential power

Melissa Quinn, CBS News

In Trump v. Slaughter on June 29, the Supreme Court “expanded presidential power” by striking “removal protections for members of the Federal Trade Commission, clearing the way for the president to fire members of certain independent boards and commissions at will.” In the months ahead, courts will continue to define the scope of presidential power as they consider ongoing disputes over President Donald Trump’s efforts to fire “inferior officers” serving in the executive branch, such as immigration judges, without cause, according to CBS News. “‘Inferior’ executive branch officials may be appointed by the president or the head of a department, and they’re generally supervised by principal officers, who are nominated by the president and confirmed by the Senate.” Cases over their firings could “have significant implications for civil service protections that have been in place since the late 1970s and the federal workers covered by them, legal scholars say.”

Supreme Court Clerk Hiring Watch: Meet The October Term 2026 SCOTUS Clerks

David Lat, Original Jurisdiction

In a post for his Substack, David Lat shared a “demographic analysis of the Supreme Court law clerks for October Term 2026,” highlighting, among other things, the gender breakdown and what law schools they came from. Among “the 38 clerks, 25 are men and 13 are women – 66% and 34%, respectively,” Lat wrote, noting that this group “is the least balanced [in terms of gender] since OT 2022.” The crop of OT2026 clerks is more diverse in terms of school of origin, with 14 different law schools sending graduates to the Supreme Court for the 2026-27 term, compared to 12 last year and 11 the year before that. Most of the new clerks attended Harvard (11). The next closest school on the list, Chicago, sent five.

On Site

Court News

Trump signs new birthright citizenship order, ballroom dispute likely headed to Supreme Court

President Donald Trump on Thursday signed an executive order seeking to narrow the availability of birthright citizenship, the current guarantee of citizenship to almost everyone born in the United States. The order came just over a month after the Supreme Court struck down an earlier order that would have imposed wider restrictions on birthright citizenship. The Aug. 6 order will almost certainly be challenged in court.

Court News

Trump informs Lisa Cook that he is “considering” her removal

President Donald Trump has renewed his effort to fire Lisa Cook, a member of the Federal Reserve’s Board of Governors. The Supreme Court on June 29 temporarily thwarted Trump’s initial effort to remove Cook, emphasizing the need for the Federal Reserve to remain free of political influence. In a letter dated Aug. 5, White House Deputy Chief of Staff Dan Scavino notified Cook that Trump was “considering” whether to remove her from the Board of Governors. Scavino gave Cook 21 days to respond to the White House’s allegations that she committed mortgage fraud in 2021, before she joined the Fed.

From the SCOTUSblog Team

The Supreme Court of Japan

For SCOTUSblog’s series on different supreme courts around the world, Zach spoke with David S. Law, a law professor at the University of Virginia, about the Supreme Court of Japan.

SCOTUS Outside Opinions

Pete Buttigieg, the Supreme Court, and the Fourth Amendment

In a column for SCOTUSblog, Jordan Lorence focused on a June incident in which 2020 presidential candidate Pete Buttigieg was asked to separate himself from his children as Child Protective Services investigated an anonymous complaint. Lorence contended that, “based on Supreme Court authority on the Fourth Amendment, this all could have been avoided.”

A Closer Look

Congress Weighs SCOTUS Legislation

When Justices Amy Coney Barrett and Elena Kagan testified before the House and Senate Appropriations subcommittees in July to request an increase in the court’s security budget, some members of Congress had other topics front of mind, such as ethics codes, the emergency docket, prediction markets, and scientific evidence. These discussions came against the backdrop of proposed congressional legislation that would reshape how the court operates.

On July 22, a quartet of Democratic Senators re-introduced the Supreme Court Biennial Appointments and Term Limits Act. The authors announced that the bill would establish 18-year terms for justices to participate in all Supreme Court cases, after which they would only adjudicate on original jurisdiction cases (that is, cases the court is constitutionally empowered to hear) – which usually make up about one-to-five cases per term.

However, the bill’s text actually makes no mention of 18-year terms. Rather, it directs the president to nominate a new justice within the first 120 days of the first and third year of their term. It then stipulates that the nine most recently appointed justices would preside over appellate jurisdiction cases (the vast majority of the court’s docket).

That means the 18-year tagline may be a slight misnomer. If a vacancy occurs among the nine appellate jurisdiction justices, the least senior previously active justice could slide back down to the appellate bench until the next scheduled appointment. Alternatively, if a vacancy brings the total number of justices below nine, the president is directed to fill that seat, regardless of the appointment timeline.

Article III of the constitution states that judges “shall hold their Offices during good Behaviour,” which has historically been interpreted as implying lifetime tenure. Some argue that clause precludes Congress from establishing term limits absent a constitutional amendment, but term limit advocates say proposals like the recently introduced bill bypass this issue by technically maintaining lifetime appointments, even as some justices lose their ability to vote on most cases.

In May, Rep. Jamie Raskin, a Democrat from Maryland, introduced a separate trio of bills his office said would “bolster accountability.”

The SHADOW Act targets the court’s emergency docket decisions, requiring it to “state why it ruled the way it did, what factors it considered, and what the decision does.” Raskin’s SCOTUS Act overhauls the process by which the court grants review of cases. Currently, four justices need to vote for a case to be heard on the merits docket. The bill strips the power to grant certiorari from the court entirely, instead establishing a panel of 13 randomly selected appeals court judges – one from each circuit – to review petitions under a four-vote standard. The Federal Funding Protection Act clarifies that federal district courts can hear individual claims to vacate the termination of a grant by a federal agency, if that termination was part of a broader agency policy that is also being challenged.

Another court-reform bill on the table is the Supreme Court Ethics, Recusal, and Transparency Act, introduced in 2025 by Democratic lawmakers in both chambers. The bill requires the court to issue a publicly accessible code of conduct, violations of which would be submitted to a panel of five circuit chief judges. It also commands the court to adopt gift disclosure standards that are at least as thorough as those which Congress abides by and tightens the requirements for justices to recuse themselves from cases due to conflicts of interest.

On the Republican side of the aisle, SCOTUS-related legislation has primarily centered on the proposal of a constitutional amendment to cap the bench at nine justices. These efforts come as several Democrats have pledged to add seats to the Supreme Court should the party gain control of the presidency and Congress. The constitution does not specify how many justices sit on the court, though there have not been more than nine since 1866.

SCOTUS Quote

"The appearance of impartiality is an essential manifestation of its reality."

— Justice Felix Frankfurter in Dennis v. United States (1950) 

Cook has strongly disputed the mortgage fraud allegations, and other financial records appear to undermine the Trump administration’s claims.

Scavino’s letter cited the court’s decision in Trump v. Cook, in which the majority ruled that “Cook was entitled to notice and some opportunity to respond prior to her termination.” The opinion by Chief Justice John Roberts stressed that Cook would not necessarily be “entitled to an audience with the President or a full-blown judicial trial.” Instead, Roberts wrote, “[a]ll that is required is ‘the right to support [her] allegations by argument however brief, and, if need be, by proof, however informal,’ before a final decision is made.”

Noting that the August 2025 criminal referral by William Pulte, the head of the Federal Housing Finance Agency, and his letter “set forth the allegations,” Scavino told Cook that “[t]his is your opportunity to respond. You may provide any evidence or other supporting documentation you wish to be considered, and you may provide any argument that you wish to be considered to the President through the Director of Presidential Personnel no later than August 26, 2026.”

Cook’s lawyers, Abbe Lowell and Norm Eisen, confirmed that she received Scavino’s letter on Friday. In a statement to SCOTUSblog, they contended that the allegations against Cook are “as baseless now as they were a year ago when President Trump tried to remove Governor Cook to interfere with the independence of the Federal Reserve. No matter what President Trump tries to do next, this much is clear under the facts and Supreme Court precedent — there is no valid cause for removing Governor Cook. As we did before, we will challenge this latest pretext and preserve her position and the historic role of the Fed."

Trump also signed a second order, titled “Ending Birth Tourism,” that targets what the Trump administration has repeatedly characterized as a problem: travel by pregnant women to the United States to give birth so that their children will be U.S. citizens.

Trump signed the first executive order seeking to restrict birthright citizenship shortly after his inauguration in January 2025. That order barred children whose parents were either undocumented immigrants or only in the United States temporarily from gaining automatic U.S. citizenship. Writing for the majority in Trump v. Barbara holding that the January 2025 order violated the Constitution, Chief Justice John Roberts emphasized that the 14th Amendment’s citizenship clause, which grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof,” has an expansive sweep. Pointing to a history of birthright citizenship in English law before the American Revolution and early U.S. history, he concluded that the drafters of the 14th Amendment intended to adopt that rule, “with its broad reach and narrow exceptions” for “the children of foreign ministers and members of” some “19th-century Indian tribes.”

The executive order that Trump signed on Thursday would apply not only to the children of ambassadors – that is, “foreign ministers” – but also to the children of a variety of other foreign citizens in the U.S., including other employees at a foreign embassy, employees of a foreign government who are in the United States in their official capacity, and employees of international organizations like the United Nations and the World Bank.

The Supreme Court in the 1898 case of Wong Kim Ark, who was born in California to parents who were Chinese nationals, also indicated that the children of hostile enemies who were occupying the United States would not be eligible for birthright citizenship. Trump’s new order would exclude from birthright citizenship any child whose parent was designated as an “alien enemy” under several federal laws; this would include individuals who were members of the Venezuelan gang Tren de Aragua and the New Irish Republican Army.

Trump’s order would also apply to (among others) the children of parents who “engage[d] in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth” and to children born in a U.S. territory or U.S. territorial waters “where citizenship is not conferred by Federal statute.” Under federal law, babies born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are currently entitled to U.S. citizenship (while those born in American Samoa are not), although a bill recently introduced in Congress would end birthright citizenship in those territories beginning on Jan. 1, 2027.

Trump’s order focusing on “birth tourism” contends that “[p]articipants in birth tourism schemes abuse” the availability of temporary nonimmigrant visas “to establish a permanent foothold in the United States by securing the advantage of citizenship for their children and then potentially for themselves.” Under current regulations, the State Department already directs consular officers to deny visa applications for persons they have “reason to believe [are] traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child.”

***

In other news related to the administration, on Friday, the U.S. Court of Appeals for the District of Columbia Circuit upheld a ruling by a federal district court that temporarily blocked construction of the White House ballroom. The panel allowed underground construction to continue, which the federal government argued was necessary for security reasons.

Judges Patricia Millett and Bradley Garcia concluded that the Trump administration likely does not have the power to construct the ballroom. Instead, they wrote, Congress has “full constitutional control over federal property and the funding of its maintenance and development,” and Congress has not authorized any money for the ballroom construction. Moreover, they continued, if the construction is not put on hold and the ballroom is built, it will inflict “irreversible harms” on members of the National Trust for Historic Preservation, which brought the lawsuit challenging the construction, as well as on “the design of President’s Park, the White House, and the surrounding area.”

Millett and Garcia put their order on hold for 14 days to give the Trump administration time to go to the Supreme Court – which, the president has already said, he plans to do.

Judge Neomi Rao dissented. She contended (among other things) that the National Trust for Historic Preservation did not have a legal right to sue, known as standing, and that the president has the power to make improvements to his residence, which likely includes the ballroom.

When was the Supreme Court of Japan established?

The SCJ (“Nihon no saikosai”) was established by the 1947 Constitution that Japan adopted at the end of World War II.

Does this court only hear appeals? Are there any cases in which it has original jurisdiction?

Even in theory, it has essentially no original jurisdiction (with a narrow statutory exception for the impeachment of Commissioners of the National Personnel Authority). In practice, it has never exercised original jurisdiction.

Can the Supreme Court of Japan overturn acts of the National Diet? If so, how often does this occur?

It can but does so very rarely, to the point that it can fairly be called the most conservative constitutional court in the world. Over the last 80 years, it has struck down a total of maybe 10 laws on constitutional grounds, depending on how you count repeat litigation (and those were all national laws – it has never struck down any local laws on constitutional grounds). To put that in context, over roughly the same period, the U.S. Supreme Court has struck down over 900 laws on constitutional grounds, and the German Bundesverfassungsgericht [Federal Constitutional Court] has struck down over 600. Other than a couple of courts in Scandinavia, it’s hard to think of any constitutional court in any liberal democracy that has been more passive when it comes to judicial review.

Moreover, the majority of these cases have affected very few people and/or involved trivial laws (e.g., a law limiting the liability of the post office for losing registered mail; a law restricting the ability of pharmacies to operate in close proximity to each other; a law restricting the ability of co-owners of forest land to subdivide their property). The genuinely major exception was the SCJ’s 1976 rejection of electoral malapportionment that grossly favored rural over urban voters (to the benefit of the long-ruling Liberal Democratic Party), but the (LDP-dominated) Diet never fully complied with the decision – which has led to multiple follow-up decisions repeatedly striking down the electoral malapportionment, which have also been flouted.

How many justices are on this court?

Fifteen, divided into three panels (“petty benches”) of five justices each. For exceptionally important cases, all 15 will sit in a plenary session (“grand bench”). Notwithstanding the higher head count, they are overworked. Most of the docket is mandatory, and so the SCJ decides around 10,000 cases per year. (By comparison, SCOTUS doesn’t even receive that volume of cert petitions, and it decides maybe 60 or 70 on the merits per year.) Most of those are summary dispositions, but that doesn’t change the fact that the SCJ has to decide them.

How are these justices selected?

On paper, per the 1947 Constitution, justices are appointed by the emperor on the advice of the cabinet. In practice, there is an informal quota system that allocates seats to different segments of the legal community, namely: the judiciary itself (i.e., career judges), prosecutors, bureaucrats (especially diplomats and/or officials from the Cabinet Legislation Bureau), private attorneys, and law professors. Career judges and prosecutors always constitute a majority of the court. Being informal, those quotas can shift over time, and they have shifted in favor of the career judges and prosecutors (who are viewed as more conservative) at the expense of the private attorneys (who are viewed as more liberal).

For decades, the chief justice has always been a career judge, and in Japan, the chief justice wields exceptional administrative power. He oversees a bureaucracy (the General Secretariat) that decides, among other things, which judges will be assigned to which courts in which parts of the country (in other words, control over where judges live), who will clerk on the SCJ, and so on. Judges are usually reassigned by the General Secretariat every three years or so.

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

Their terms are not fixed, and in practice, they serve until the mandatory retirement age of 70. (To put that in context, SCOTUS is totally alone in the world in having justices who serve for life: everywhere else, apex court judges serve fixed terms and/or face a mandatory retirement age.) SCJ justices also face retention elections (up-or-down votes) at the first lower-house legislative election following their appointment. (In theory, they face further retention elections every 10 years thereafter, but in practice, they are appointed so close to mandatory retirement age that the subsequent elections do not occur.) No justice in the SCJ’s history has ever come close to being voted out of office (although there is a tendency for the justices at the top of the ballot to get more “no” votes – possibly as a form of protest – so they now randomize the order).

Are cases decided by a simple majority?

Yes.

How is the opinion writer assigned?

Incoming cases are mechanically assigned on a rotating basis to panel members: justice 1 gets case 1, justice 2 gets case 2, and so on. (Unlike a U.S. circuit court panel – and more like the two senates of the German Bundesverfassungsgericht – the SCJ panels are fixed. The justices do not move between panels.) In theory, the justice assigned to draft the opinion (the reporting justice) might not be in the majority, in which case the presiding justice will reassign the opinion. In practice, it is rare for the reporting justice to be in dissent for a variety of reasons, such as strong norms of internal consensus and the homogenizing influence of the law clerks, who are themselves experienced career judges on temporary assignment to the SCJ.

So is there any tradition of concurrences or dissents on the court?

They exist, but not nearly as often as on SCOTUS. Looking just at full decisions on the merits, maybe 5% or less contain any kind of dissenting opinion. However, concurrences can be pointed and read more in substance like dissents. (Majority opinions are unsigned; concurrences and dissents are signed.)

Would you say the Supreme Court of Japan is considered a particularly powerful institution – say, compared to the National Diet or the prime minister?

In theory, yes. It’s a coequal branch of government with the Diet, and so the chief justice has high-profile ceremonial duties such as greeting the emperor. In practice, no. The best-known example of its impotence is the Diet’s continuing noncompliance with its one true landmark decision, the 1976 electoral malapportionment case, but here’s my own favorite example.

True story: Back in 2013, Prime Minister [Shinzo] Abe wanted to sideline the director of the Cabinet Legislation Bureau, a career bureaucrat named [Tsuneyuki] Yamamoto, because Yamamoto would not accommodate a looser interpretation of Article 9 of the Constitution, which expressly prohibits Japan from having armed forces or other “war potential.” Abe did so by appointing Yamamoto to the Supreme Court of Japan. On paper, this was a promotion, but in reality, it sidelined Yamamoto by placing him in a position where he no longer had any real ability to prevent the government from implementing its preferred interpretation of the Constitution.

The fact that the prime minister used appointment to the Supreme Court as a way of sidelining someone whose constitutional law views he didn’t like tells you a lot about the Supreme Court of Japan’s lack of power. Imagine that ever happening in the U.S.

You already touched on this, but what have been some particularly controversial issues decided by the Supreme Court of Japan throughout its history? What were some major issues recently decided by this court?

In truth, there’s really just the bold but failed 1976 electoral malapportionment decision and the follow-up decisions that also failed to stick, even though they arguably walked back a bit from the 1976 decision. The SCJ regularly uses all kinds of devices to avoid sensitive rulings, many of which SCOTUS watchers would quickly recognize – political question doctrine, standing doctrine, extremely deferential standards of review, and so on.

For some reason – optimism? apologism? they need something to talk about? – scholars have for years tried to argue that the SCJ is “finally” turning a corner and taking constitutional rights seriously. (Similarly, commentators often like to claim that Japan is “finally” going to amend its 1947 Constitution, which has still never happened – maybe out of the same sense of boredom, I don’t know.) They will seize on some decision that might sound like it involves some headline principle or subject matter, but it’s usually clear even from the headnote that the decision is too little too late, or very narrow, or has no effect on Japanese society. For example, many scholars pointed enthusiastically to a 2008 decision striking down a statutory provision that distinguished for purposes of citizenship eligibility between illegitimate children of Japanese fathers who acknowledged paternity prior to birth and illegitimate children of Japanese fathers who only acknowledged paternity after birth. If that counts as a landmark case – and the scholars who argue the SCJ isn’t comatose seem to think it is – then you can see how low the bar is.

Another example that gets some play is the SCJ’s 2024 invalidation of a eugenics law under which thousands of disabled or chronically ill persons were forcibly sterilized. The problem is that the statute in question had been passed almost 80 years earlier and repealed almost 30 years earlier. The SCJ had almost 80 years to do something about that law and did nothing. Even after the law was repealed, it still dragged its heels for decades. If that isn’t a day late and a dollar short when it comes to enforcing constitutional rights, then what is?

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

It has a reputation for conservatism. The only question is whether the conservatism in question is “ideologically right” conservatism, or “don’t rock the boat” conservatism. Critics argue the former; defenders argue the latter (and style it as professional craft, care, and caution). The debate persists because both sides are correct: For the SCJ to be conservative in one sense is also to be conservative in the other. And that’s because the conservative LDP has been in power virtually without interruption since World War II (and that in turn is partly because of the electoral malapportionment that, conveniently, the LDP refuses to fix). When all policies have been set (and all judges have been chosen) for decades by the political right, then refusing to push back is conservative in both senses.

This reputation should not be surprising at all. If a right-wing party is always in power for 80 years, it would be surprising – it would defy everything we know about institutional design in political science – for none of that to percolate into the courts. There is simply no opportunity for the left to leave any meaningful imprint on the courts.

What are some common criticisms of this court?

Again, the extreme conservatism (pick your favorite definition) and general unwillingness to take constitutional rights seriously, notwithstanding what optimists and apologists alike may try to argue. Again, though, that behavior is structurally baked in: A court that has been under the thumb of one political party for 80 years and counting is not going to be a court that pushes back a whole lot.

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

I’m not sure if I’d call it “superior” or just “intriguingly different,” but an intriguing design choice is the SCJ’s clerkship system. Clerks are even more necessary there than here given the backbreaking caseload, but they are not assigned to individual justices, they are picked partly with their substantive expertise in mind, and they often have more judicial experience than some of the justices themselves. The clerks are chosen by the administrative arm of the judiciary from the ranks of the career judiciary, and being picked to clerk for a three-year stint suggests that the judge is on a career fast-track.

Putting aside the obvious benefits in terms of sheer skill and experience, the system has more subtle but also more significant advantages and disadvantages. The good news is the clerks operate in practice as a check on the justices. The less good news for those who would like to see the SCJ actually enforce constitutional rights is the clerks operate in practice as a check on the less conservative justices in particular. The system stifles individuality on the court, as the clerks are beholden to the (conservative) judicial administrators, and they can and do gang up on (beg your pardon – “meet collectively and deliver their collective judgment to”) dissenters and are under no obligation to help them write dissenting opinions.

For those interested in learning more, former Justice Tokuji Izumi wrote a critique of the system in a 2011 symposium issue of the Washington University Law Review about the SCJ (full disclosure, edited by yours truly) that also contains a counterpoint from former Justice Tokiyasu Fujita.

***
David S. Law is the Samuel H. McCoy II Professor of Law, the E. James Kelly, Jr., Class of 1965 Research Professor of Law, Courtesy Professor of Politics, and Affiliated Faculty of the East Asia Center at the University of Virginia. His fieldwork on the Japanese Supreme Court and his time as a visiting professor at Keio University in Tokyo were supported by an International Affairs Fellowship in Japan (Hitachi Fellowship) awarded by the Council on Foreign Relations. He holds a Ph.D. in political science from Stanford, a J.D. from Harvard, and a B.C.L. in European and Comparative Law from Oxford. He is the editor of Constitutionalism in Context (Cambridge University Press, 2022) and co-editor of the Judicial Systems of the World book series (Oxford University Press) and the forthcoming Oxford Handbook of Constitutional Law in Asia (Oxford University Press).

In late June, presidential candidate Pete Buttigieg described in a Substack post how he had endured every parent’s nightmare. Following a knock at the door of his home in Michigan, he encountered a police officer with an investigator from Child Protective Services. They asked to talk with him, and he invited them into his house. This is how Buttigieg then described what they said:

They explained that there had been an allegation against me, that it concerned our four-year-old twins, and that a forensic interview had been arranged for the children the following day. I could not be present at the children’s interview, nor could any family member sit in. Afterwards, they would come back and interview me. And only then would they tell me anything about the nature of the allegation.

But they weren’t finished with their demands. “I was not to be alone around the children, at least until the interview took place the next day. They asked if I had relatives nearby or could perhaps stay at a hotel for the night.” When the twins came home with his husband Chasten, Buttigieg allowed them to meet the police officer and the investigator and then agreed to send their children to their grandparents’ house. One can imagine the dread and terror Buttigieg (and Chasten) felt waiting out this ordeal.

The next day, the investigator talked to the children, and then to Buttigieg, revealing what he had been accused of:

An anonymous caller had contacted CPS. The caller said that he had spoken to a woman who claimed to have met me at a conference several years ago in Alabama, where she said I told her that I had committed unspeakable violent crimes, and the caller believed my children were still at risk.

Buttigieg answered the police questions, explaining that he had never attended the conference in Alabama and had never talked to the woman. The authorities said they had not found “anything to substantiate the allegation,” so he could once again be around his children. The CPS worker looked around the house to make sure there was adequate food in the kitchen, and checked out the kids’ bedroom, which Buttigieg says was “standard procedure.”

According to The Washington Post, the Michigan attorney general’s office is now reviewing this matter to understand how its investigation, spurred by an anonymous tipster, got so far out of hand and whether this was a politically-motivated attack to harass Buttigieg and his family. Nevertheless, based on Supreme Court authority on the Fourth Amendment, this all could have been avoided in the first place. I wanted to use this column to explain why.

***

To back up a bit, what Buttigieg experienced is not unheard of: From my time working at the Home School Legal Defense Association, I frequently came across Fourth Amendment issues concerning CPS. (Home school families were frequent victims of anonymous tips to CPS accusing families of abusing or neglecting their children.) What’s more, to state the obvious, child abuse and neglect are horrible crimes that the authorities should prosecute. And most social workers are trying to do their best under extremely difficult conditions.

But the Constitution – and the Supreme Court’s Fourth Amendment jurisprudence – sets limits on what the authorities can do to fight crime. The police could fight child abuse (with some success!) by entering every house in America where children reside and force their parents or guardians to prove they are not abusing or neglecting these children, even when there is no reasonable basis for suspecting this in a particular household. Of course, if the police did systematic or even random searches of houses in general, they could turn up all sorts of criminal activity. We all would be “safer,” but we would also lack liberty. As the Supreme Court has made clear, the Fourth Amendment balances how the police and social workers conduct their investigations.

The amendment itself states that people are protected from “unreasonable searches and seizures” by the government of their “persons, houses, papers and effects” without a search warrant. In turn, the court has stated multiple times, most recently in Case v. Montana, that “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” To get a search warrant, the government must go to a magistrate and show evidence indicating probable cause of criminal activity. The Supreme Court has ruled that an anonymous tip making allegations against someone, without more evidence, is not sufficient evidence to obtain a search warrant.

The Supreme Court has also recognized that the government agent does not need a search warrant when an occupant of the house consents to the search. This means that social workers may try and persuade or pressure the parent to consent. Nor are the social worker or the police required to give a Miranda-type warning such as “because we don’t have a warrant, you are free to say no to our request that you consent to a search of your home.”

From my experience, this is typically how CPS investigators get access to one’s home. Such persons know their mere presence at the parents’ front door – especially if there is a police officer with them – will intimidate or frighten many parents into agreeing to nearly anything they ask for. The parent then faces a difficult dilemma. Say yes to the search, and they have allowed strangers into their home, to inspect their property and potentially upend their lives. Say no, and the CPS might take my kids (or so the parent thinks). No parent wants that. But the social worker is making a calculated bluff, because she knows she has no evidence to get a search warrant, and zero evidence to justify a court order removing children from the home. The social worker realizes that if the parent consents to her entering the house to look around and talk to the children, she just might find evidence of wrongdoing.

Some might wonder whether this presents a situation involving so-called “exigent circumstances” justifying a warrantless search. That was certainly not the case with Buttigieg’s family, however. As the Supreme Court explained in 2013’s Missouri v. McNeely, “exigent circumstances” are extreme situations that require immediate action: “A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of the a home … engage in ‘hot pursuit’ of a fleeing suspect … or enter a burning building to put out a fire and investigate its cause,” or to “prevent the imminent destruction of evidence.”

None of that existed here. The anonymous tipster had allegedly talked to Buttigieg “several years ago” at the conference. CPS had no real evidence that anything bad was happening at that moment. Rather, Buttigieg was standing in front of them, and the children were not home. The social worker may well have been following her agency’s standard protocols, but they do not override one’s Fourth Amendment rights.

So what would my advice to Buttigieg have been based on Supreme Court precedent? Simple: When social workers or police knock on your door requesting to enter your house to interview your children and to look around, ask them, “do you have a search warrant?” If they say no, tell them they cannot enter your house and then consult your attorney. If the police and social workers barge into the house without a warrant, they should face a federal civil rights lawsuit for damages for violating your Fourth Amendment rights.

***

I am politically conservative, so I doubt that I would ever vote for Buttigieg. But he is an American, and all Americans are protected by the Constitution. The Supreme Court has made clear that if you lack probable cause, you cannot get a warrant to search a family’s home. As the U.S. Court of Appeals for the 9th Circuit stated in Calabretta v. Floyd, a case against a social worker and a police officer who entered a house without a warrant based on a phone call alleging child abuse, “[t]he government's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.”

At the Court

Last week, the Trump administration asked the Supreme Court on its emergency docket to clear the way for the implementation of President Donald Trump’s executive order on mail-in voting. Twelve states – led by Alabama – later echoed this request in their own application. On Monday, the group of 23 states and the District of Columbia challenging the order urged the court to deny these requests. The matter is now fully briefed, and the court’s ruling could come at any time.

Morning Reads

Trump again tries to restrict birthright citizenship after Supreme Court ruling

Will Weissert and Rebecca Santana, Associated Press

On Thursday, President Donald Trump announced “that he is once more trying to limit the number of people who are born in the country who can become American citizens, in a sign that even after his first attempt at limiting birthright citizenship was rejected by the Supreme Court, he’s ready to try again,” according to the Associated Press. “The president said he was signing two executive actions on immigration, including one limiting the number of people eligible for U.S. citizenship after being born in the United States, while another focused on stopping people from coming to the U.S. to give birth.” The new order on birthright citizenship, released on Thursday evening, is “narrower in scope than the previous one shot down by the Supreme Court and appear[s] to focus on restricting automatic citizenship to specific categories of people, including children born to adults with connections to foreign embassies or organizations as well as anyone considered an ‘alien enemy’ of the United States. It also aim[s] to restrict birthright citizenship to anyone whose parents ‘engaged in fraudulent activity to obtain citizenship.’” The second order “seeks to curb what Trump called ‘birth tourism’ by increasing restrictions on visitors to the U.S. who want to obtain visas to give birth while in the country.”

Marquette Law School Poll finds national approval of Supreme Court now at 47%, has remained below 50% since November 2025

Kevin Conway, Marquette Today

A new survey from the Marquette Law School Poll showed that “47% of adults approve of the way the United States Supreme Court is handling its job, while 53% disapprove.” “Approval of the Court varies substantially across party lines, with 74% of Republicans approving of the Court, while 35% of independents and 22% of Democrats approve [of it].” The survey also identified a partisan gap in views on the Supreme Court’s relationship with President Donald Trump. While 77% of Democrats say “the Court rules for Trump often or fairly often,” just 37% of Republicans hold that belief. “Among all adults, 54% say the Court is going out of its way to avoid a ruling Trump might refuse to obey, while 46% say the Court is not avoiding such a decision.”

Legal battle over Jewish charter school begins in Oklahoma City federal court

Nuria Martinez-Keel, Oklahoma Voice

On Wednesday, a legal battle began over the Oklahoma Statewide Charter School Board’s rejection of a Jewish charter school’s effort to open in the state and “operate using taxpayer funds,” according to Oklahoma Voice. The case may eventually bring the issue of religious charter schools back to the Supreme Court, which, in 2025, deadlocked 4-4 over the constitutionality of opening a Catholic charter school in Oklahoma after Justice Amy Coney Barrett recused. The 4-4 vote left in place an Oklahoma Supreme Court decision holding that the state constitution requires charter schools to be non-religious. Supporters of religious charter schools claim that this requirement amounts to unconstitutional “religious exclusion.”

Democrats urge appeals court not to overturn mifepristone regulations

Nathaniel Weixel, The Hill

In a May decision on its emergency docket, the Supreme Court allowed for the mailing of mifepristone, one of two drugs used in medication abortions, by pausing a ruling from the U.S. Court of Appeals for the 5th Circuit that would have required in-person dispensing. The dispute over access to the abortion pill “is now back before the 5th Circuit, which will hold oral arguments in September,” according to The Hill. This week, “[t]he entire congressional Democratic caucus filed an amicus,” or friend-of-the-court, brief with the 5th Circuit, urging the court “not to reinstate an in-person requirement.” “Decades after FDA’s initial approval of mifepristone and years after the in person dispensing requirement was eliminated, Louisiana now seeks to re-impose this onerous nationwide restriction on all Americans. Granting such relief would undermine the science-based statutory framework Congress requires and threatens patient access to reproductive health care,” the brief said.

Edgy Vanity Plates Test Limits of Free Speech

Adam Liptak, The New York Times (paywalled)

In his newsletter for The New York Times, Adam Liptak explored what he called “[t]he next great First Amendment battleground:” license plates. “[C]ourts are splintered over whether and how states can censor the messages the plates convey,” he explained. The key question in disputes over the messages drivers choose for their vanity license plates is whether those messages are a form of government speech. If they are, “the First Amendment does not figure in the analysis,” according to Liptak. “The government, the Supreme Court has ruled, ... can refuse to endorse messages with which it disagrees.” On Friday, a panel of the U.S. Court of Appeals for the 4th Circuit ruled that “vanity plates are private speech subject to First Amendment protections” in a case on a Virginia plate carrying a message that’s critical of law enforcement. Virginia “announced on Wednesday night that it would seek Supreme Court review.”

On Site

Contributor Corner

Beyond the swing justice: majority makers, dissent bridges, and coalition drift on the Supreme Court

In his Empirical SCOTUS column, Adam Feldman explored “centers of cross-ideological influence” on the current court, such as majority coalitions bringing together Chief Justice John Roberts and the liberal bloc and dissenting coalitions uniting the three liberal justices with Justice Neil Gorsuch.

Contributor Corner

What is “trapped in amber”? An originalist explanation

In her A Second Opinion column, Haley Proctor reflected on the legal world’s recent focus on the phrase “trapped in amber,” discussing its relationship with originalism. “Properly understood,” she wrote, “originalism indeed holds that law is fixed – ‘trapped in amber,’ if you will. But the circumstances to which it applies are not. The problem with the amber metaphor is that courts increasingly use it without distinguishing law from its application.”

Podcasts

Advisory Opinions

Fauci Pleads the Fifth | Interview: Elie Honig

Sarah Isgur and David French are joined by CNN senior legal analyst Elie Honig to discuss Anthony Fauci’s invocation of the Fifth Amendment. Then it’s on to a constitutional game show where each member of this three-person team picks two constitutional amendments they would magically ratify and one amendment they would veto.

A Closer Look

Justice William Paterson

Justice William Paterson is, to date, the only justice to have been born in Ireland and is one of only six justices to have been born outside of the United States.

Paterson was born in December 1745 in County Antrim. In 1747, before he turned two, the family left for America and arrived in Delaware. His father sold tin goods throughout the colonies before opening a general store in Princeton in 1750, across the road from the soon-to-be-built Nassau Hall, today the oldest building at Princeton University (and which served as a battleground during the American Revolution). Aided by local real-estate purchases, Paterson’s father was able to fund his son’s education. Admitted to the College of New Jersey (today Princeton University) at 14, Paterson helped establish the Cliosophic Society with Aaron Burr, a “social and debating club” whose name he likely coined. After graduating in 1763 and earning a graduate degree three years later, he read law under Richard Stockton and was admitted to the bar in 1768.

After the American Revolution began, Paterson served as a delegate to and secretary of New Jersey’s provincial congresses, recording the state’s first official constitution in 1776, while also serving as an officer in the Somerset County Minutemen and on the Council of Safety, which organized New Jersey’s militia. As the state’s first attorney general from 1776 to 1783, Paterson “actively prosecuted Loyalists” while also maintaining a busy private practice. Tragically, his infant daughter died in June 1783 and his wife Cornelia passed away that November, four days after the birth of their son.

The Constitutional Convention proved Paterson’s “finest hour.” According to fellow delegate William Pierce, Paterson was “one of those kind of Men whose powers break in upon you, and create wonder and astonishment.” Championing the small states, Paterson introduced the New Jersey Plan (sometimes known as the Paterson Plan), proposing a one-chamber legislature where every state would vote as an equal. A week after the “Great Compromise” established equal state representation in the Senate – two members per state, protecting small states, to balance against another chamber with proportional representation – Paterson departed the Convention on July 23, leaving the drafting to others. He reappeared in September to sign the Constitution, becoming one of seven foreign-born signers.

Elected to the first Senate, Paterson drafted the Judiciary Act of 1789 alongside his old Princeton classmate (and future chief justice) Oliver Ellsworth, which set the initial number of justices on the Supreme Court at six. Indeed, the act’s first nine sections (which created the district and circuit courts, among other things) are in Paterson’s handwriting. Paterson then became the first person ever to resign from the Senate, trading his seat to become the second governor of New Jersey.

President George Washington nominated Paterson to the Supreme Court in 1793 but withdrew the nomination the next day over a procedural issue. Washington then renominated him on March 4 and he was confirmed that same day. (Washington later offered him the role of Secretary of State in 1795, which Paterson declined.)

One of Paterson’s most important statements came while riding circuit, in 1795’s Vanhorne’s Lessee v. Dorrance, where his jury charge asked “What is a Constitution? It is the form of government, delineated by the mighty hand of the people.” He continued that “every act of the Legislature, repugnant to the Constitution, is absolutely void” – which Chief Justice John Marshall drew on in Marbury v. Madison. In 1796’s Hylton v. United States, Paterson wrote that the carriage tax (a federal tax on carriages kept for the owner's personal use, passed by Congress in 1794) was “indirect,” meaning it could stand under the Constitution. Two years later in Calder v. Bull, Paterson joined three colleagues in a unanimous judgment (only four justices heard the case and each wrote a seriatim opinion) confining ex post facto clauses – which prevent Congress and the states from passing laws that reach backward onto past conduct – to criminal laws only.

In 1803, Paterson was injured in a coach accident while riding circuit. Although the crash wasn’t fatal, it left him with health problems that never went away. Hoping a New York spa could help with his symptoms, he headed there in September 1806 but never arrived, dying en route at the Albany home of his daughter. Paterson was buried at his daughter’s husband’s manor. When the manor was destroyed around 1900, his remains were reinterred in Albany Rural Cemetery.

SCOTUS Quote

JUSTICE GINSBURG: "How is – how is that determined, that a substantial composite of the general public would find the – the mark shocking or offensive? I mean, if – considering what's involved in this case, if you were to take a – a composite of, say, 20-year-olds, do you think that that answer would be they would find it shocking?”

MR. STEWART: "I – I think not – I think there are certainly some segments of society that are more likely to find particular marks shocking than others. I – the – the PTO, it – its initial determination was that this mark would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language."

— Iancu v. Brunetti (2019)

• The court in Trump v. Cook: “We see no reason, however, why our central bank ought to be ‘trapped in amber’ any more than any other aspect of our constitutional scheme.”
• The court in Watson v. Republican National Committee: “Statutes do not ‘tra[p] in amber’ every contemporary practice on the same subject matter.”
• Justice Sonia Sotomayor in Cisco Systems v. Doe I: “There also is no indication that Congress intended to ‘tra[p]’ the [Alien Tort Statute] ‘in amber.’”
• Justice Ketanji Brown Jackson in Wolford v. Lopez: “Such a narrow search results in a ‘law trapped in amber.’”
• Sotomayor in Trump v. Slaughter: “When, exactly is our law ‘trapped in amber,’ and when is it not?”
• Justice Brett Kavanaugh in Trump v. Barbara: “This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’”
• Justice Amy Coney Barrett at oral argument in United States v. Hemani: “I agree with you that you don’t need to have just alcohol because that’s all there was at the founding and that would be trapped in amber.”

The expression has become increasingly popular in the lower courts, too. Earlier this week, law professor Richard Re traced the history of the metaphor and its rapid spread over the past two years.

As Re correctly recognizes, though early uses of the phrase evoked a living Constitution – one whose meaning evolves over time – each of the references collected above traces back to a line in the Supreme Court’s originalist decision in United States v. Rahimi, in which the court upheld a federal law that disarms those under a domestic violence restraining order. There, the court used the phrase to clarify that its Second Amendment precedents “were not meant to suggest a law trapped in amber.” The court continued:

[T]he reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.

At the time, professor Josh Blackman predicted that the “amber” line would become “the most quoted sentence” in the opinion, and a way for judges to escape the original meaning of the law. I’ll leave the citation counts to more empirically inclined court-watchers, but the evidence Re collects vindicates Blackman’s prediction to this extent: the metaphor has become a flashpoint in the contest over what it means to do originalism.

Properly understood, originalism indeed holds that law is fixed – "trapped in amber,” if you will. But the circumstances to which it applies are not. The problem with the amber metaphor is that courts increasingly use it without distinguishing law from its application.

Originalism and amber

As Barrett explained in her Rahimi concurrence, originalism “is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the ‘discoverable historical meaning … has legal significance and is authoritative in most circumstances.’” For short, scholars refer to these commitments as the “fixation thesis” and the “constraint principle.”

The fixation thesis means that something gets “trapped in amber” at the time a law is promulgated, and the constraint principle means that judges are bound to adhere to whatever that something is today. Justice Neil Gorsuch made this point in his Rahimi concurrence:

When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty. We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber”—our only lawful role is to apply them in the cases that come before us.

Nevertheless, we have repeated assurances in purportedly originalist opinions that this or that is not “trapped in amber.”

What, then, does originalism say is trapped in amber? Gorsuch calls it “the people’s directions in the Constitution.” Barrett calls it “meaning” with “legal significance.” We might, for brevity’s sake, call it “law.”

This makes the phrasing in Rahimi infelicitous: “These [originalist] precedents were not meant to suggest a law trapped in amber.” Professor Re translates the line: “the Supreme Court denied that the Second Amendment is ‘a law trapped in amber.’”

The problem is, Second Amendment precedents do “suggest a law trapped in amber.” In District of Columbia v. Heller, for example, the court explained that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

What is not “trapped in amber” is law’s application in future circumstances. Here is how the court made the point in New York State Rifle & Pistol Ass’n v. Bruen: “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” The court goes on, as it did in Rahimi, to note that the Second Amendment protects “modern instruments that facilitate armed self-defense,” even if such instruments did not exist at the time of ratification.

In short, to an originalist, the law is trapped in amber; its application is not. (For a deeper discussion of this distinction, see this column from last year.)

The Second Amendment and amber

Why, then, does Rahimi deny that “law” is “trapped in amber”? It has to do with the way the Second Amendment operates: as a limit on governments’ regulatory authority. And just as it applies to new firearms, it also applies to new assertions of regulatory authority.

Rahimi does not deny that the law created by the Second Amendment is fixed. But the body of firearm law (comprised of statutes, ordinances, and common-law principles) on which it operates is not. Legislatures change that body of law for any number of reasons: political, social, economic, technological. The rules about which types of regulatory measures are permissible and which are not remain constant, but the body of statutes and regulations to which they apply is not. It is the latter body of law that is not “trapped in amber.”

The amber admonition must have seemed particularly important to the Rahimi court because the text of the Second Amendment does not describe all the contours of the right it codifies. That right “is not unlimited,” but the Second Amendment does not state what those limits are. Rather, we must infer them by looking to the “historical tradition of firearm regulation” that coexisted with the right from the start. When one must look to the laws the Second Amendment permits to determine what the Second Amendment permits, there is some risk of mistaking original applications for original law.

But dangers lie in the other direction, too. A judge wishing to escape the narrowness of the original factual conditions to which a law applied may loosen the law itself, rejecting the rule it establishes for broad principles or policies that enable the judge to range far from the original meaning.

The law and amber

Given the unique features of the Second Amendment that gave rise to an originalist court using the “trapped in amber” metaphor, one might expect it to remain trapped in Second Amendment litigation. It has not, as the examples above show.

Only two of the above cases are Second Amendment cases, and it is telling that in both, the court found it necessary to rebuff “trapped in amber” arguments, suggesting that Rahimi has led lower courts and/or litigants to overcorrect. The court’s two Second Amendment decisions this past term resoundingly reaffirm that Second Amendment law remains “trapped” where the people fixed it.

Beyond the Second Amendment, the phrase presents a threat to originalist reasoning if it is not handled with care. In the two majority opinions, it was not “law” which was “trapped in amber.” Rather, it was “our central bank” and “contemporary practice.” These are the things to which the law applies. Nevertheless, in Cisco Systems, Sotomayor denied that “Congress intended to trap the [Alien Tort Statute] in amber.” Her statement could be read to deny that those who enact laws – whether constitutional or statutory – do not fix the laws they enact. This would be antithetical to originalism.

Indeed, Re sees the rise of the phrase as a sign that the court is reconciling itself to living constitutionalism. For the reasons I’ve explained, I don’t agree, but the amber metaphor could subtly work such a change.

In her Slaughter dissent, Sotomayor asked, “When, exactly is our law ‘trapped in amber,’ and when is it not?” The answer is that it is always “trapped in amber,” unless and until it is lawfully changed. It endures, even as the world around it changes.