There was a lot of speculation, not too long ago, that Justice Alito would be leaving after the end of the October 2025 session of the US Supreme Court. The idea was: (1) that Alito wanted to be replaced by Trump, so he would want to get out while Trump still controlled the Senate and could still secure a younger Alito clone as replacement for the retiring Alito, and (2) that Alito has a new book coming out, October 6th, and he would want to be free to do a book-selling tour at that time. Of course if Alito is still a Justice as the new October 2026 session goes underway, book selling opportunities will be constrained. So went the speculation. But when Justices do retire on the basis on such calculations, they generally do so right after the final gavel of the old session falls -- this year, that gavel fell on June 30th. Yet Alito made no such announcement. Quite the contrary, early this month he told The Wall Street Journal that he is "here for another term." ...
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I hereby inform my readers that I will not be doing the usual post-Supreme-Court term round-up this year. Most Julys for many years now, I have devoted four long blog entries to the term of the US Supreme Court that has just ended. This year, I'm not feeling it. There have been a lot of intriguing decisions this term. I have written posts on some of they as we have proceeded. But the elaborate round-up? No thanks. And ...sorry to disappoint. By the way, the fact that I have just been using the word "round-up" reminds me of the fact that one of the cases decided by the Court this term literally did involve a product named Round Up. https://www.supremecourt.gov/opinions/25pdf/24-1068_n7ip.pdf
I don't know about you, dear reader, but there are some of us who feel some excitement on the morning of 'decision days' in June. The US Supreme Court is typically trying to clear its dockets ahead of its summer break, and this is when the hotly contested cases and the publicly most awaited make their appearance. Hence the fun. "Is today the day they release their birthright citizenship decision? or a re-affirmation of central bank independence? or the weapons-for-the-stoners case?" Last Thursday did turn out to be the day for the weapons-for-stoners case. That came out right, as far as concerns the parties directly involved, though the precedential significance seems to be small. This morning? It is another announced decision day and the excitement is back. Okay, nerdy perpetual law student fun....
I am happy to report that on Wednesday November 5 the Justices of the US Supreme Court gave the lawyers from the US Justice Department a hard time during oral arguments on the legitimacy of President Donald Trump's monarchical tariff system last week. The question is whether Trump's extraordinary sweeping impositions, and modification, of tariffs on a country by country basis can be said to be warranted by the 1977 International Emergency Economic Powers Act. The only honest answer is "no". Fortunately, most of the Justice seem inclined to give that honest answer, upholding the courts below. Chief Justice John Roberts (an appointee of President George W. Bush) said flatly that this law "has never been used to justify tariffs. No one has argued that it does until this particular case." Justice Neil Gorsuch, a Trump appointee, appears to want to be part of a decision that emphasizes that Congress has no power to delegate away its own proper constitutional r...
On the 10th of the month, the US Supreme Court heard arguments on "whether the Protecting Americans from Foreign Adversary Controlled Applications Act" violates the First Amendment. One week later, the Supreme Court issued per curiam opinion with no dissents upholding the law. Sotomayor and Gorsuch each filed a concurrence. By way of reminder: this case arose because President Trump, in his first administration, sought to make it impossible for TikTok to continue in the US. He purported to ban it by executive order. https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/ But a district court judge struck down the ban on the ground that there would have to be a statutory mandate. Under the Biden administration, Congress passed a statutory mandate, and that is the law that (oddly, with Trump's blessing) the PRC backed management of TikTok was seeking to have declared unconstitutional on first amendment ground...
To pick up on the thought with which I ended yesterday's entry: as I write these words, Richard Glossip is still alive. And that has to be considered good. Glossip is alive because the US Supreme Court, in January of this year, agreed to hear his case. I mentioned that fact in this blog in February, but I'll say a bit more now. In January 1997 (yes, more than a quarter of a century ago, and days before the second inaugural of President Clinton) and man called Barry Van Treese beat Justin Sneed to death with a baseball bat. In order to avoid the death penalty, Sneed testified that Glossip instructed him to do this. Van Treese's sayso is virtually the whole of the prosecution case. Just about everybody who has looked into the matter believes that Van Treed was lying. Sneed's family members, and the Attorney General of the State of Oklahoma, are among the many who have drawn that conclusion. So ... why is Glossip still on death row? The short answer is bureaucratic ...
After the coming weekend, it is October, and the U.S. Supreme Court is back in the courtroom. I will use this occasion to congratulate the Court in sticking to its guns in the matter of one of the more notable decisions of last term, ALLEN v. MILLIGAN, while the legislature of the state of Alabama remains in defiance. The courts below are attempting to hold the state to the terms of the quite clear SCOTUS decision in MILLIGAN, and the state has responded by appealing to SCOTUS again, asking it to change its mind. This is not a matter of stare decisis. It is a matter of res judicata. That matter has been determined. By a single sentence ruling, with no dissent, the high court this week refused to hear the matter, so this spring's order, and the enforcement actions of the lower courts, will take effect. That said, I will merely mention today three cases to be heard by the court in its new term about which I have some curiosity. 1. Murray v. UBS Securities , ...
SCOTUS ended this term with aplomb, and with a bomb, the long-awaited ruling on student debt relief. The decision, which struck the Biden administration's debt relief program, came about, in formal terms, as an interpretation of the Higher Education Relief Opportunities Act. Some in the US maintain that it would be both right and urgent to make college free in the United States. Forgive all college-generated debt, and nationalize the financing of college that will make lending for such purposes hereafter a non-issue. The Biden administrations plans fall very very short of that. To Biden this is a one-shot debt forgiveness, rather narrowly targeted. Only $20,000 of debt forgiveness for 30 million people. The idea is to give those people a one-time break, given the general impression that the lending has gotten out of control and the borrowers are suffering too great a burden. Also, this one-shot move can be justified as a post-Covid stimulus, akin to the checks that Presiden...
Until recently I did four posts a day here. Now on most weeks I do only three. But I shall retain my old practice of doing a four-part discussion of the just-ended term of the US Supreme Court here each year in early July. The easiest way to do this is to write the introductory panel first, and the more granular three panels the following week. I think THE story of this term is the triptych of gerrymandering cases. We will, accordingly, save discussion of that development until the end. There have also been striking decisions about everything from student loans to the separation of powers. Both of those and much else will be found here. There have, on the other hand, been important decisions this term I will not discuss. For example, I won't discuss the end-of-term decision about affirmative action in higher education. However consequential, the arguments made by the parties, and the Justices, are not intellectually provoking, so I will let them be. Furthermore,...
The Supreme Court's first opinion Monday of this session, a week and a half ago now, was disappointing. Much awaited, but more of a whimper than a bang. One of the two cases decided is intriguing, but the SCOTUS decision entirely evaded the reason for the intrigue. The case turned on the extent of the attorney-client evidentiary immunity. If an attorney and a client have a discussion about some completely non-legal matter (say, the client's recent travels), the fact that they happen to be attorney and client is not germane. The conversation may be pertinent if the client latter claims an alibi defense to some criminal charge and the conversation throws light upon it, the conversation is NOT privileged. But suppose an attorney and client have a conversation that touches upon both legal and non-legal matters. Courts will not try to de-scramble the egg and protect the purely legal parts. Either the conversation is as a whole non-legal enough to lose the privilege or it i...
In the matter of BROWN v BOARD, Justice Earl Warren was sensibly desirous of ensuring that the Court would speak with only one voice. He wrote the opinion, and the only opinion, for all nine Justices. Warren knew of course that there would be blow-back from the politicians of the former confederacy -- and not only from them -- and that it would be good if the politicians engaging in blowing back at this opinion were not aided by any divisions within the court itself. He seems to have had some trouble persuading Justice Robert Jackson of this necessity. Jackson was dying at the time but was participating in deliberations and worked on several drafts of what he expected to be a concurring opinion. I suspect that Jackson thought he would help Warren's cause by making Warren and the other seven judges seem moderate. He may have deliberately sought to outline a position that would seem to segregationists more extreme and outrageous, so they would react to Earl Warren's position a...
Often, in recent years, we have used this third column for the discussion of what I think of as "structural" constitutional issues, leaving for the fourth column the more rights based constitutional issues. I won't make that distinction this time. There was really only one structural case worth discussing, in my own unappealable opinion. There was the tribal sovereignty issue of US v. Cooley . After that I will turn to rights based matters that come from amendments other than my favorite, other than the first. Tribal Sovereignty Tribes have been doing rather well in the Supreme Court recently, as a group of sovereignty-venerating Justices treat the notion of their sovereignty more seriously than it has sometimes been taken. McGirt v. Oklahoma is the first instance of this to come to mind. This year brought another tribal win: Cooley . The court said that police officers for a tribe have the power to search and to temporarily detain non-Indians on public rights-of-way ...
It would be a great irony if, after decades of nominating Supreme Court Justices more-or-less specifically on an abortion litmus test, the Republicans still haven't managed to get a court majority that is ready to repeal ROE v. WADE. I say "it would be" rather than "it is" because we don't know whether that is the case. I am beginning to have that suspicion though,. If, with a court that is made up one-third of Bush family nominees and one-third of Trumpets, where the remnants of the Obama and Clinton administrations together get only that last third, still upholds the paradigm "liberal elitist" decision as stare decisis ... something is very wrong with the way people surrounding the Bush and Trump families think about the law. Now I hear some of you snickering about that last sentence ("he thinks the Trumps actually think???" ). Well, I'm not committed to that view but I'll entertain it for now. This year's most likely v...
This is a good thing. Supreme Court shadow docket: Congress scrutinizes it and considers reform. (slate.com) The whole idea of opinions issued at 2 AM with only sketchy explanations, of that, and no real sense of what the breakdown was among the Justices ... is just wrong. Congress certainly has sufficient supervisory authority over SCOTUS to crack down on this as necessary. Indeed, there is specific language telling us that the appellate jurisdiction of the Supreme Court is itself subject to "such regulations as the Congress shall make." Why could Congress not create a law saying that under any case in its appellate docket (the "original jurisdiction" docket is rather small) every Justice who votes on a particular decision shall indicate how that vote went? That would be enough to throw a little light in the shadows, already? The image above? It's a Shadowscape Tarot Deck. That has nothing to do with anything I just said, except t...
I can't really claim to understand this, but I'll link to it here because some of you might. So maybe you can explain it to me. I believe that the Supreme Court has in recent terms (since the Baker/Gay-Weddings thing -- actually since further back) in essence erased everything on the blackboard with regard to free exercise of religion law. And perhaps establishment law, too. Since then, instead of trying to put some new coherent guidelines up on the blackboard, they have been going in a very ad hoc way through the cases that get to them, deciding everything on the basis of spit polish and gut feelings and hoping that at some point it will add up to a coherent doctrine. It hasn't yet. Some day it might. Stranger things have happened. Anyway, the thing I don't claim to understand is the judgment, and cluster of decisions in Harvest Rock Church and South Bay United Pentecostal. The court seems split several ways: I don't grok the alignment...
I'm surprised the issue of race doesn't seem to have entered into the discussions of Judge Barrett's pending confirmation as a Justice of the Supreme Court. In her short career on the appellate bench, Barrett has voted on one sensitive issue of racial civil rights, the Autozone case. Autozone is a chain of auto parts stores that has several stores in Chicago. It seems to have segregated its employees in its assignments, sending the Black employees to the Black neighborhoods and vice versa for their white colleagues. The EEOC brought an action against this policy. A three-judge panel of the 7th circuit (a panel to which Judge Barrett did not belong) ruled in favor of Autozone, holding that these assignments are a matter of managerial discretion. The EEOC tried to appeal this to the whole court, that is, en banc. But the appeal was rejected and the ruling stands. My point? Barrett was one of those who voted in favor of refusing to take the appeal. She gave her supp...
This is the third part in our series of blog posts about the latest term of the Supreme Court. We'll get to some basic structural stuff in this post, with the question of non-state territories, over which the national government is often said to have a direct control. Does it? With regard to Puerto Rico, and possibly the District of Columbia: what does that entail? Obviously there are local authorities for both of those places -- heck there are also park rangers for national parks who have various sorts of discretion. But this isn't the federal layering of sovereigns we've heard about, is it? The Appointments Clause I'm looking at a clause of the constitution that seldom makes the headlines, but that is nonetheless of great importance within the overall system. Article II, sect. 2, clause 2, the "appointments clause." It says that that president shall nominate, and with the advice and consent of the Senate he shall appoint, all "officers of the Un...