The Bears are what we thought they were. They're what we thought they were. We played them in preseason—who the hell takes a third game of the preseason like it's bullshit? Bullshit! We played them in the third game—everybody played three quarters—the Bears are who we thought they were! That's why we took the damn field. Now if you want to crown them, then crown their ass! But they are who we thought they were! And we let 'em off the hook!

A 20-year-old rant by a football coach may seem like a strange place to start this week’s bonus post, but it perfectly encapsulates my reaction to yesterday’s (maddening) 6-3 ruling in Louisiana v. Callais, in which the Supreme Court took a hatchet to what’s left of the Voting Rights Act in an opinion by Justice Alito that can charitably be described as … motivated reasoning.

There are plenty of good and sophisticated analyses of Callais out there already; you might check out UCLA law professor Rick Hasen’s, for starters. Rather than re-hash Rick’s piece, I wanted to use today’s bonus post to make two different points that go beyond analysis of either the majority opinion or Justice Kagan’s dissent.

The first point, which hopefully explains the Dennis Green reference, is that I don’t know anyone who was genuinely surprised by this outcome—who didn’t think (1) that the Court would reach this result; (2) that it would disingenuously distinguish its ruling from <checks notes> three years ago in the Alabama case (and say nothing at all about its intervention in the Texas case from December); (3) that the Court would split right down ideological lines; or (4) that Justice Kagan, specifically, would write a stem-winder of a dissent. TL;DR: “they are who we thought they were”—which, among other things, really ought to be the final nail in the coffin for recent attempts to sell a narrative that the Court is not so bitterly divided along ideological (and partisan) lines. Once again, in the cases that matter the most (a real category that can meaningfully be distinguished from the rest of the Court’s docket), we tend to see the Court at its most predictable. And in my view, that’s both an indictment of efforts to whitewash the current Court and a reality that’s not healthy for the Court itself.

That brings me to the second point: Understandably, Callais has re-ignited calls (especially on the left) for Court reform—with expansion foremost among the specific proposals—the next time there’s a Democratic trifecta in Congress. And the defense of going right for the jugular is that the Supreme Court as currently composed would strike down anything else—so shifting the Court’s center of gravity is a necessary antecedent to any substantive policy goals Democrats might have, and not just to Court reform, itself.

As I elaborate upon below the fold, to me, this takes exactly the wrong lesson away from Callais. Like Shelby County v. Holder and Brnovich v. DNC before it, the Court’s three-step evisceration of the Voting Rights Act has been made possible not just by its personnel, but by the Court’s knowledge that there’s no universe in which Congress would meaningfully respond to its … contestable … intepretations of a statute Congress enacted, and then re-authorized, and then re-authorized again.

A world in which Congress is willing to hold the Court accountable is one in which it would not only override these kinds of patently ridiculous interpretations of statutes, but in which the specter of such legislative reaction might lead the Court away from such interpretations in the first place. And although the Court could still rest on (un-overrule-able) constitutional arguments to strike down Congress’s handiwork, that, too, assumes a Congress that wouldn’t simply respond by resorting to its array of other tools to push back against such an assertion of power by the justices.

Put another way, Callais itself and the reactions to it are both evidence, yet again, of what’s really wrong with the Court (the extent to which it has become completely unaccountable), and why the “right” way to fix it is to reform that, rather than hope that a Democratic president will appoint justices more committed than the justices in the Callais majority to the view that the Court is just one branch among three. Packing the Court may feel cathartic (and even accomplish partisan substantive goals) in the short term, but only at the further expense of the Court’s credibility and power in the medium- and long-term.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court (no later than) Monday. For those who are, please read on.

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Earlier today, as part of its regular Order List, the Supreme Court issued a truly unusual order in that appeal—summarily reversing the district court’s ruling “[f]or the reasons set forth” in the December order. In other words, in resolving the merits of Texas’s appeal of the preliminary injunction, the majority deemed it appropriate to simply incorporate December’s order by reference—even though that order included exactly two paragraphs of analysis, one of which was only about why Texas met the factors for a stay (which presumably is irrelevant to the question now before the Court).

I wanted to put out a quick post to flag this development, because it strikes me that there are three different, but equally newsworthy, points to make about it.

First, procedurally, I can’t say I’ve ever seen this before—where the Court took a case in which it has “mandatory” appellate jurisdiction (meaning that, in theory, it has no discretion to refuse to hear an appeal), and summarily reversed the district court. Summary affirmances are (and historically have been) quite common in this context. And a separate body of rulings are (wrongly, in my view) often called “summary reversals”—where the Court resolves a cert. petition by deciding the whole case through an unsigned opinion, like the one we had just last week. But I can’t remember a prior case with this kind of (true) summary reversal—where the Court just reversed a three-judge district court on the merits without any detailed explanation. I don’t doubt that it happened in at least some cases back when the Court had much more mandatory jurisdiction, but if there’s a post-1988 example (and there may well be), I’m not aware of it.

Second, and the unusual procedure aside, there’s also the substance. I’ve explained before how, during COVID, we saw the first examples of the Court relying upon rulings on emergency applications in the context of summary “GVRs,” that is, in orders granting certiorari, vacating a lower-court ruling, and remanding for further proceedings in light of an intervening development (there, the emergency docket ruling). But I’m also not aware of a prior case where, on the merits, the Court simply relied upon a prior ruling on an emergency application as the entire substantive basis for the result.

To be clear, I don’t read Monday’s order as suggesting that the Court was bound by its December order. Rather, I read it as the Court seeing nothing to add to the December order—never mind the powerful (and, in my view, correct) arguments Justice Kagan offered in her dissent from December’s stay. In that respect, Monday’s order appears to be a novel extension of how the Supreme Court is using its rulings on the emergency docket as precedent—not for stare decisis purposes, but as the analytical foundation for its subsequent ruling on the merits. That strikes me as an entirely worrisome development when the foundation consists of two cryptic paragraphs that have been thoroughly debunked. (And in a case in which the three-judge district court moved heaven and earth to build a detailed evidentiary record in support of its preliminary injunction, a record at which the justices in the majority just waved their hands.)

And that brings me to the third point: There has been a remarkable amount of pearl-clutching over the past nine days with regard to criticisms of the Court’s behavior on the emergency docket—especially in the aftermath of the New York Times’ reporting on the leaked memos in the Clean Power Plan case. On Friday, former Tenth Circuit Judge Michael McConnell joined the fray with an op-ed in the Washington Post purporting to defend the “not-so-sinister ‘shadow docket.’”

Like many of the Court’s other defenders, Judge McConnell misdescribed the criticisms. And among other things, he claimed that “the shadow docket has proliferated” not because of anything the Court has done, but “because presidents have become increasingly aggressive in pushing new policies through executive order without going to Congress—or even after Congress rejected their proposals.” Of course, this misses the substantial evidence of the Court’s inconsistent treatment of presidents based upon their political affiliation (which was my central takeaway from the Clean Power Plan reporting). But it also ignores the rest of the emergency docket, where, as the Texas redistricting case reflects, the Court has been far more active in cases not involving the federal executive than it was a decade ago. Executive overreach, regardless of the president’s party, hardly explains that development.

In any event, the Court’s defenders, like McConnell, have stressed, over and over again, that the principal reason why critics of the Court’s emergency docket behavior are overreacting is because the rulings are temporary expedients—and don’t necessarily prejudge the merits. Indeed, Justice Kavanaugh has led the charge to re-brand the Court’s emergency applications output as the “interim” docket.

But as I wrote last September, anyone who actually looks at the full dataset would see that the “interim” label wildly understates the real-world effects of these rulings—which are increasingly permanent. Likewise, the Court’s newfound insistence that even unexplained orders have at least some precedential effects on lower courts also belies the notion that these orders are temporary expedients.

All of that was clear before today (indeed, it was clear by last August). What Monday’s order drives home is how little even the Supreme Court itself is treating its emergency interventions as “interim” rulings. If the Court is going to summarily reverse a three-judge district court on the merits “for the reasons set forth” in two cryptic paragraphs of analysis respecting a stay, then it’s only a matter of time before the Court starts relying upon similarly cursory analyses (or even simply the outcome) in other orders granting (or denying) emergency relief as controlling the merits of merits cases. And while that’s certainly something the Court has the raw power to do, if nothing else, it ought to drive home the tendentiousness—if not the mendaciousness—of the “interim docket” label once and for all.

We’ll be back Thursday (if not sooner) with our continuing coverage of the Supreme Court. If you’re not already a subscriber, I hope you’ll consider becoming one. And if you are, I hope you’ll consider upgrading to a paid subscription if you’re willing and able to support the work that goes into keeping tabs on the current Supreme Court:

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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At the risk of writing a post that isn’t about the emergency docket and/or the Clean Power Plan cases, I wanted to use this week’s “Long Read” to take up a topic that’s long been a bugaboo within the Supreme Court’s press corps—the very existence of the April argument calendar. Specifically, the concern is that the justices unnecessarily back-load their argument calendar with cases that, under even the best of circumstances, just can’t be given the same amount of time and attention that they’d receive if they were argued earlier in the term. (The reason is because of the all-but inviolable, if entirely arbitrary, norm that the Court hands down all of its decisions in argued cases before July 4, and usually by the end of June.) One of the Court’s most visible (and direct) advocates, Lisa Blatt, even said the quiet part out loud during one of last week’s oral arguments, suggesting to the justices that she had assumed that a particularly broad holding was not a possibility because of when the case was being argued—“Not in an April case. Not happening.”

Historically, there have really been only two good arguments for keeping the April calendar, and both have arguably been overtaken by recent events. The first is that the Court would run out of argument slots without it. But as the total number of oral arguments has continued to stay below 60 each term since OT2019, that claim is increasingly incorrect as a matter of basic math. This term, the Court’s first six argument calendars (five or six days per month during each month from October-March) had a total of 17 “open” slots (that is, days on which the Court heard only one argument, not two). The entire April calendar has nine arguments.

The second is that some of these cases are both late-breaking and need to be resolved during the current term, so having them bumped back to October isn’t really viable. But even if that’s a regular phenomenon (only the TPS cases arguably meet that standard from this argument session), it’s not an argument for keeping the entire April calendar. The Court could simply add an unscheduled argument date for cases that need one—just as it did last year for the emergency applications in the birthright citizenship cases, which were argued not in April, but on May 15.

At the very least, it seems worth once again asking whether the April calendar causes more problems than it solves.

More on that below. But first, the news.

On the Docket

The Merits Docket

The Court handed down two decisions in argued cases on Wednesday:

1. In Enbridge Energy, LP v. Nessel, Justice Sotomayor wrote for a unanimous Court in holding that the 30-day time limit for defendants who want to remove certain lawsuits filed against them from state court to federal court isn’t subject to “equitable tolling.” Thus, even if defendants had a good reason for their delay in removing a case, the time limit still applies because of the text and structure of the relevant provision of the removal statute.

2. In Hencely v. Fluor Corp., Justice Thomas wrote for a 6-3 majority in reviving a state tort suit against a military contractor arising out of a suicide bombing in Afghanistan carried out by one of the contractor’s employees. Specifically, Justice Thomas reiterated that the federal common law immunity defense to such suits that the Supreme Court recognized in Boyle v. United Technologies Corp. doesn’t apply when the contractor is being sued for conduct other than what its government contract required. Justice Alito wrote a dissenting opinion that was joined by Chief Justice Roberts and Justice Kavanaugh. I have two quick thoughts about this ruling (that I hope to expand upon in future issues), both of which are in the footnote at the end of this sentence.1

The Court also issued yet another summary reversal on Monday—its sixth(!) of the term. The unsigned six-page opinion in District of Columbia v. R.W. reversed the D.C. Court of Appeals (the highest state-like court in D.C.) on the question of whether a specific law enforcement officer in a specific case had “reasonable suspicion” to “seize” a suspect by parking his car in such a way to prevent the suspect’s departure from the scene. The Court didn’t hold that the D.C. Court of Appeals applied the wrong test; it held only that the lower court didn’t give sufficient weight under the correct doctrinal test to one specific fact. Justices Sotomayor and Jackson dissented from the Court’s summary disposition—with Jackson writing separately to wonder (correctly in my view) why the Court devoted any of its resources to, in her words, “word-smith a lower court.” Indeed. The Court regularly insists, as Justice Scalia put it in 2015, that “we are not, and for well over a century have not been, a court of error correction.” Except when it is—which has a remarkable tendency to be in favor of only the government in criminal, civil rights, or prisoner cases.

Speaking of summary reversals, the Court issued a quietly significant “GVR” (granting certiorari, vacating a lower-court ruling, and remanding) in Smith v. Scott—a qualified immunity case with pretty ugly facts. Over public dissents from the three Democratic appointees (dissents from GVRs are quite rare), the Court sent the case back to the Ninth Circuit for further consideration in light of its March 23 summary reversal in Zorn v. Linton, which was the subject of the “Long Read” on March 30.

Besides these summary rulings, Monday’s Order List also included two significant grants of certiorari—adding cases to the docket for next term. The first, St. Mary Catholic Parish v. Roy, is a case about whether Colorado violated the Free Exercise Clause by excluding from its “universal preschool” program schools that refuses to admit LGBTQ children and children with LGBTQ parents, even if the school’s refusal is religiously motivated. Although the Court did not grant cert. on the “big” question the petition presented (whether to overrule Employment Division v. Smith), it’s a pretty significant case on its own—and yet another (to my mind, troubling) offshoot of the Court’s recent evisceration of the Establishment Clause. The justices also agreed to take up a very-long-lingering question about whether the “commentary” to the Sentencing Guidelines to which federal courts refer in federal criminal cases reflects authoritative interpretations of ambiguous language therein (as the Court held in 1993), or whether that view has been overtaken by subsequent events, including the Court’s 2005 holding that the Guidelines were unconstitutional insofar as they were mandatory.

The Emergency Docket

There was only one full Court ruling of note on an emergency application—Tuesday’s denial, over no public dissents, of a stay of execution to Florida death-row prisoner Chadwick Willacy.

The Week Ahead

The week ahead promises to be a busy one. We expect a full Order List at 9:30 this morning, followed by the last (scheduled) week of oral arguments during the October 2025 Term. And the Court has also noted that it plans to hand down one or more rulings in argued cases Wednesday morning at 10 ET..

Miscellaneous

Finally, I wanted to briefly flag a fascinating analysis by NBC News (specifically, Lawrence Hurley, Katherine Doyle and Gary Grumbach) on “why Trump’s winning streak at the Supreme Court came to an abrupt end.” The basic gist of the piece is that (1) the pace of emergency applications from the Trump administration has slowed dramatically; and (2) after an unprecedented run of success last yeaer, Trump is starting to lose big cases at the Court.

I may come back to this piece in a future installment, but wanted to note two quick points for now: First, in my view, these two takeaways are directly related. One of the exasperating things about the administration’s success on the emergency docket has been that many of the “wins” have been in cases in which I think it’s likely to lose on the merits (hence my frustration with how the Court’s internal memos gave such little weight to the harm to the government in the Clean Power Plan cases—because of the seeming inconsistency in how the harms are factoring in depending upon who the president is). The fact that that’s happening may be proof of that concern, and not just a coincidence.

Second, the slow-down in the pace of emergency applications, in my view, reflects two related but distinct developments: For starters, we’re not seeing nearly the same volume of novel (and litigation-inducing) executive action this spring that we saw last spring. And in any event, partly because of the Supreme Court’s behavior over the past 15 months, we’re also seeing at least some lower courts (and litigants) moving a bit differently in the cases that are challenging those actions. In other words, the lull may be at least in part because the administration has gotten a lot of what it wanted from—not because it’s been thwarted by—the Supreme Court.

The One First “Long Read”:
April Showers Bring Rushed June Decisions

Justice Sotomayor’s unanimous opinion for the Court last Wednesday in Enbridge Energy came down just 57 days after oral argument—the second-fastest of the term (topped only by Sotomayor’s unanimous opinion for the Court in the New Jersey Transit sovereign immunity cases, which took only seven weeks from argument to hand-down). I mention these data points not to reiterate Sotomayor’s undisputed place as the Court’s fastest writer these days, but to flag how unusual it is for the Court, given its druthers, to hand down (even unanimous) decisions less than two months after oral argument. Indeed, the third-fastest ruling thus far this term, in Coney Island Auto Parts, took 11 weeks (which, for a case argued today, would bring us to July 13).

Indeed, it seems objectively undeniable that cases argued in April generally get short shrift from a process perspective. That creates all kinds of problematic pressures on the Court—to hustle; to fudge things; and so on, pressures that can sometimes lead to mistakes, both publicly visible and otherwise. After all, at the same time as the justices are hustling to decide cases argued in April, they’re also continuing to fight over cases argued earlier in the term. And although that’s hardly a new phenomenon (folks have been complaining about the April calendar for years), the relevant thing that has changed is the shrinkage of the Court’s overall calendar—which has opened up space to redistribute the same number of oral arguments across six six-day sessions, rather than seven. Put another way, what’s new isn’t that the Court backloads its calendar; it’s that the backloading has become even less necessary than it used to be.

There will, of course, always be cases granted in late December or early January that have the combination of importance and urgency that would militate against pushing them over to the following term (for an October argument instead of an April argument). But with all due respect to the litigants and lawyers in the other eight cases being argued during this term’s April session, it seems to me the only case(s) warranting that treatment this year are the TPS cases—which, it should be noted, the Court granted late already. It’s not immediately clear to me why the other cases couldn’t have been shuffled among the February and March calendars where possible, or pushed to October, without any significant consequences.

And were the Court to fully get rid of its April session, that would also change parties’ (and the Court’s) timing incentivies vis-a-vis the cert. calendar—since they could recalibrate when they file, whether they seek extensions, and whether they seek expedition based on a calendar in which the cut-off for new cases for the same term moves from mid-January to mid-December. Put another way, any genuine unfairness from the switch would likely arise only during the first term without the April calendar; if history is any guide, everyone will adjust their behavior to accomodate the new calendar pretty quickly.

It’s hardly the biggest issue facing the Court right now. But it seems to me that, as it becomes increasingly clear that < 60 argued cases is the new normal, and not just a COVID-caused aberration, there’s room to revisit the structure of the Court’s calendar in a way that should be a good thing for (almost) everybody—to spread out more of the Court’s decisions; to give the justices more time to decide each of the weighty cases before them; and to (maybe) take a little bit of pressure off the intensity that tends to be the last six weeks of each annual term. I harbor no illusion that the Court will decide cases argued earlier in the term faster without an April session. But it would be nice if the justices handed down their biggest decisions of the year when they’re ready, and not just because the calendar is about to turn to July.

SCOTUS Trivia: The Longest Time to Decision?

There are, of course, cases the Supreme Court decides within days of the oral argument—including the TikTok case from last term (seven days); or, perhaps more infamously, Bush v. Gore (~33 hours). At the other extreme, there are numerous examples of cases that were argued one term and held over to be decided the next (or, in the old days, perhaps even later). But within the same term, the record for the longest time from oral argument to decision is something Adam Feldman looked into back in 2019—when the Court took 261 days from oral argument to its ruling in Gundy v. United States.

As Feldman reported, at least going back to 1960, the record (as of June 2019) belonged to a pair of cases from the October 1993 Term—Johnson v. De Grandy and Holder v. Hall. Both of those cases were argued on the First Monday of OT1993—October 4, 1993. And they were decided on the last day before the justices’ summer recess—Thursday, June 30, 1994, or 269 days later. Although it’s possible I missed one, some very quick checking on my part found no obvious candidates since June 2019 (even during OT2019, when the Court didn’t finish until July 9, 2020).

Just to drive the point home, 269 days from this Wednesday’s final scheduled arguments of the term would be January 20, 2027.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!

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This week’s bonus issue for paid subscribers will drop on Thursday. And we’ll be back with our regular content for everyone (no later than) next Monday. As ever, please stay safe out there—especially from rushed Supreme Court decisions.

Against that backdrop, I’ve been rather … exasperated … by the avalanche of (mostly right-wing) commentary this week purporting to push back against Saturday’s New York Times scoop (and some of my own work) about the Court’s unsigned, unexplained, February 2016 ruling in the Clean Power Plan cases. This commentary has gravitated toward some combination of four different claims: That what happened in February 2016 wasn’t actually new (nor was it the birth of the “modern emergency docket”); that the memos actually bespeak a decision that was deeply principled (and “carefully” deliberated), like the rest of the Court’s behavior on the emergency docket; that the real story is the fact of the leak, not its substance; and, most bizarrely (is “unhinged-ly” a word?), that Adam Liptak should somehow face disciplinary sanctions from the New York bar for his role in the reporting. Sure, Jan.

Frankly, I’m a little tired of the ideological framing and valence of this discourse. I’m also tired of the barrage of dissembling, misdirection, and assumptions of bad faith on the critics’ part that figures so prominently in so many of the responses to critiques of the Court’s emergency docket behavior, of which this week’s tranche are just the latest examples. I harbor no illusion that I have always perfectly adhered to neutral principles, or that my principles are the same as yours. But I’ve always tried to explain, defend, and support my arguments with evidence—which is more than I can say for a troubling number of my interlocutors.

To that end, and in the interest of trying to close the loop, I wanted to take one final shot at responding to the two substantive claims being advanced by the Times’ (and my) critics—that there was nothing meaningfully new or novel about the Clean Power Plan ruling; and that the way Chief Justice Roberts’s internal memos handled the equities was principled and defensible. The former claim is objectively false—as the putative counterexamples themselves help to illustrate. And the latter claim requires a remarkable obliviousness, if not willful blindness, to how the Court (including Roberts) has handled the equities in emergency relief involving the federal government both before and since February 2016.

As is so often the case with commentary about the emergency docket, the Court’s defenders make arguments that sound outwardly reasonable, but that depend entirely on cherry-picking their examples and ignoring the counterexamples. And at the end of the day, the single most newsworthy thing about the Clean Power Plan ruling is not what happened in February 2016, but what happens when you compare the behind-the-scenes analysis to the Court’s behavior over the last 15 months—which none of these commentaries have seriously done. For as long as I’ve written about the emergency docket, I’ve flagged the Court’s tendency to act inconsistently in ways that are more favorable to Republican litigants (and presidents) and more unfavorable to Democrats. Because the Court writes so little in these cases, it’s hard to prove that inconsistency. But that’s a big part of what the Clean Power Plan memos actually do.

It’s easy for folks who clerked on the Court and/or who spend much of their time writing about it to tell themselves that it isn’t news that the Court makes hugely impactful decisions with scant briefing, even less deliberation, and no public explanation. But (1) it certainly seems to have been news to others (especially those who haven’t paid as close attention); and (2) regardless, the Court’s apparent inconsistency across administrations is problematic no matter when it started, who’s engaging in it, or how we learned about it.

I would’ve thought all of that would be uncontroversial, even in 2026. Alas.

For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our continuing coverage of the Court. For those who are, please read on. And either way, my thanks and gratitude to Grace Kiple and Ava Singh for timely and terrific research assistance.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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Back in February, I wrote about the tenth anniversary of the Supreme Court’s unsigned, unexplained February 2016 rulings blocking President Obama’s “Clean Power Plan,” and how they ushered in what might be called “the modern emergency docket.” In my earlier post, I raised a series of questions about what had led the Court to do something that, in 2016, was completely unprecedented (blocking an executive branch program then under review in the lower courts), and whether the justices had any idea of the Pandora’s Box they were opening. As I wrote, “because the Court didn’t write then, and hasn’t explained itself since, we’ll never know (at least, until our grandkids can read the justices’ internal papers from that time period).”

It turns out, thanks to some truly remarkable reporting from Jodi Kantor and Adam Liptak for the New York Times, that we didn’t have to wait quite that long. On Saturday, Kantor and Liptak published 16 pages of (leaked) internal memoranda from six of the justices providing a window into how and why the Court did what it did on February 9, 2016. And the memos are, at least to me, a remarkable combination of eye-opening and sadly unsurprising. As I explain below, I think there are at least five significant takeaways from these materials—none of which paint the Court in an especially flattering light. And at the heart of most of them is Chief Justice Roberts.

Behind the scenes, Roberts led the charge for the Court to blaze a new trail—relying on statements outside the record; invoking the wrong standard for the kind of relief the applicants sought; failing to even acknowledge the irreparable harm the government (and the environment) would suffer from the Court intervening; and pushing back aggressively when Justices Breyer and Kagan both urged a compromise that should have accounted for his ostensible concerns. I’ve suggested before that the real acceleration of the Court’s modern emergency docket behavior can be traced to 2018, right around when Justice Kavanaugh succeeded Justice Kennedy. But in the first major case in which the Court granted emergency relief as a means of shaping nationwide policy, it turns out that the justice who led the charge was the one who was doing quite a bit more than calling balls and strikes.

Much more on that below, but first, the (other) news.

On the Docket

Although the justices made plenty of news outside the Court (more on that in a moment), it was a pretty quiet week for the Court’s formal output. The only set of orders from the full Court were housekeeping orders relating to the April argument session (which starts later this morning); and there was a single ruling on the merits docket—with Justice Thomas writing for an effectively unanimous Court in allowing Chevron to remove a particular climate change suit from state court to federal court. (If you’re curious about the details, see the footnote at the end of this parenthetical.)1

Off the bench was a different story. On Monday, Justice Jackson delivered the James A. Thomas Lecture at Yale Law School, titled “Equity and Exigency: A First-Principles Solution for the Supreme Court’s Emergency Docket.” As you might imagine, Justice Jackson was quite critical of the Court’s behavior on emergency applications, especially over the past 14 months. And although she did not call any of her colleagues out by name, she was unsparing in her criticisms of how the Court, almost entirely in rulings that have divided the Republican appointees from the Democratic appointees, has gotten away from the role that “equity” is supposed to play in all emergency relief—in a manner that has allowed the Court to minimize, if not entirely ignore, the real-world harms its rulings have imposed. More than just a critique, Jackson also made a specific proposal—that the Court should formalize a two-step process for resolving emergency applications, in which it balances the equities first, and evaluates the likelihood of success on the merits only after concluding that the equities would support intervention. There’s a lot to be said for such an approach, in my view (only the more so in light of Saturday’s developments).

And then on Wednesday, Justice Clarence Thomas delivered a speech of his own at the University of Texas. Unlike Jackson’s surgical critique of the Court’s behavior, Thomas’s speech was a Jeremiad against … progressivism in general. Ostensibly tied to the upcoming 250th anniversary of the Declaration of Independence, Thomas argued, repeatedly, that such a political view “requires of the people a subservience and weakness” that is “incompatible” with the Constitution. (The speech is worth watching; I’m not quite doing justice to his disdain for what people like me believe.)

I’m not at all surprised to hear that Justice Thomas believes all of these things. But it’s pretty striking that he used such a rare public platform not to articulate or defend some particular interpretive philosophy or methodological approach to the Constitution, but to launch a series of thinly veiled broadsides at, let’s just say it, the modern Democratic Party. That’s not a defense of a particular set of legal principles by someone who is lionized on the right for his principles; it’s demonizing the left. It’s his right to say all of these things, but … ugh.

Wednesday also featured a rare apology from Justice Sotomayor for her remarks the previous week at the University of Kansas, in which, while criticizing Justice Kavanaugh’s concurring opinion in Noem v. Vasquez Perdomo, she had veered into more of a personal attack against her colleague. Quoting Sotomayor, “At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.” I’m with Chris Geidner on this: I’m deeply sympathetic to Sotomayor’s substantive critique of Kavanaugh’s concurrence in Vasquez Perdomo, but I’m also glad she apologized for what she said.

Turning to this week, we expect a regular Order List at 9:30 ET, followed by the beginning of the April argument session—the last two weeks of (scheduled) oral arguments for the October 2025 Term. And the justices have also announced that, before this Wednesday’s arguments at 10 ET, they’ll hand down one or more additional rulings in argued cases. This is the time of year when the Court’s output begins to ramp up—from now through the end of June.

The One First “Long Read”:
Chief Justice Roberts Opens Pandora’s Box

As I wrote 10 weeks ago, on February 9, 2016, the Supreme Court handed down unsigned, unexplained orders granting five pending emergency applications and effectively blocking President Obama’s “Clean Power Plan.” The rulings, all of which divided the Court 5-4 (with the Republican appointees in the majority and the Democratic appointees in dissent) were, in many ways, the birth of the modern emergency docket. It was completely unprecedented, at the time, for the Court to step in and block an executive branch regulation while it was being challenged in the lower courts; and it was deeply unusual for the full Court to grant emergency relief in any context that produced nationwide effects (it’s not that there were no pre-2016 grants of emergency relief; it’s that most of them were in death penalty cases and election-related cases, with a handful of cases about state laws). And because the Court didn’t explain what it did or why, we could only guess as to what had led the justices to set the stage for … everything that has followed.

We don’t have to guess anymore. Saturday’s New York Times included a remarkable trove of material—and reporting about the trove. In particular, Jodi Kantor and Adam Liptak got their hands on seven internal memoranda from six justices written over the span of five days as the Court considered what to do about the five applications. As part of its reporting, the Times posted the 16 pages of memos themselves; pieces summarizing what’s in the memos and key takeaways; and the (main) news story putting all of this in context.

My post from February already addressed the broader significance of the February 2016 rulings. Here, I’d like to focus on my key takeaways from Saturday’s Times reporting—of which there are five:

Takeaway #1: The Mechanics of Emergency Applications

First, and perhaps least importantly, the memos themselves seem to confirm a bunch of the speculation I offered last year about how we think the Court processes emergency applications. Chief Justice Roberts, as Circuit Justice for the D.C. Circuit, circulated an initial memo to the Conference that (1) referred the matter to the Court; (2) voted in favor of a stay; and (3) offered at least a bit of analysis in support of such an outcome. The justices then responded. Justice Breyer filed a memo disagreeing with the Chief Justice and suggesting a compromise; the Chief Justice responded to Breyer; Justice Kagan responded to the Chief (and piggybacked on Breyer’s compromise proposal); Justice Sotomayor did the same; Justice Alito responded; and Justice Kennedy weighed in (which appears to have been the decisive vote to settle the matter).

We don’t have memos from Justices Thomas, Scalia, or Ginsburg, but it stands to reason that they had each voted cursorily in favor of (Thomas and Scalia) or against (Ginsburg) Roberts’s proposal—and that their memos are missing because they didn’t say anything substantive. It’s possible that there are other substantive memos that weren’t part of this tranche, but I’m skeptical; Kennedy’s memo is clearly his first intervention, and it has the same date as the Court’s actual ruling. This all went down very quickly, and very cursorily. (The absence of the Thomas, Scalia, and Ginsburg vote memos may also suggest that the leaker was someone who did not have the entire case file in their possession—since I can’t imagine why the Times wouldn’t have published those, too. But that’s sheer speculation on my part.)2

The key here is how utterly impoverished the discussion was. There was no real debate and no in-person meeting to hash out differences of opinion; just a brief exchange of remarkably short memos over five days (two of which were a weekend). I’ve suggested before that folks would be floored to see just how little analysis and deliberation go into rulings like this that produce massive real-world effects; here, for once, is pretty compelling direct evidence in support of that speculation—and a pretty powerful rejoinder to those who have insisted that the Court’s internal debates in these cases are rigorous and deeply substantive. Whatever else this was, it wasn’t that.

Takeaway #2: The Chief Justice Railroads the Court

Turning to the substance, Roberts’s central argument comes in a sentence on page 1 of his first memo: “Absent a stay the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector before this Court has an opportunity to review its legality.”

There are three points to make about this sentence—and the analysis that follows it.

First, and right off the bat, Roberts invokes the wrong standard for relief—citing cases about the traditional standard for a stay of a lower-court ruling pending appeal of that ruling. What the Court was asked to do in the Clean Power Plan cases was something much more aggressive—to stay administrative action pending all judicial review of that action, something it had never done before. (Here’s a great 2024 Harvard Law Review student note on the problem.) By invoking only the traditional equitable standard, Roberts made his task much easier than it should have been—and never acknowledged the extraordinary nature of the relief he was proposing to grant (even though the Solicitor General had made the novelty point in his brief in response to the application).

Second, even under the (incorrect) lesser test for a stay pending appeal, look at how Roberts changes the question from whether the applicants will suffer “irreparable harm” to his claim that they will face a “substantial and irreversible reordering of the domestic power sector.” Those … aren’t the same thing. Worse than that, he never so much as mentions the other side of the equities—the irreparable harm the executive branch (to say nothing of the environment) would suffer if the Court did intervene. As regular readers of this newsletter know, one of the central features of the Court’s repeated grants of emergency relief to the Trump administration over the past 15 months has been its rigid and thinly defended assumption that the federal executive branch is always irreparably harmed when any of its behavior is blocked—even when it’s defying a statute (when the “presumption of constitutionality” from which this argument derives shouldn’t even apply).

And what opinion is most often cited for this idea that the government is always harmed? A 2012 in-chambers opinion by … Chief Justice Roberts (2012, just to be clear, was before 2016). In other words, Roberts didn’t change his mind sometime between 2016 and 2025; he’s just being a hypocrite. It’s irreparable harm for Republican presidents; just not Democrats (Roberts also claims the stay he’s proposing is “to preserve the status quo pending judicial review,” never mind that the “status quo” was that the rule was in effect.)

Third, with no record on which to rely (the challenges had only just been filed in the D.C. Circuit), Roberts’s sources for his “facts” are a combination of the applications themselves and outside news reports. His initial memo, for instance, cited to a BBC interview of the EPA’s administrator and a blog post by an EPA acting assistant administrator—not exactly vetted sources. (Just two years later, he’d be the author of the majority opinion refusing to rely upon public statements by President Trump in the travel ban case on the ground that they weren’t authoritative statements of policy.) And his second memo responding to Justice Breyer cited a pair of studies (see footnote 1) the provenance of which even he questioned (“the sources of those analyses lead me to believe that their figures are likely at the high end of possible cost range”), along with the same BBC interview. As Justice Sotomayor pointed out, “the factual basis for the Applicants’ claim of irreparable harm seems hotly contested by the Government and in tension with at least my cursory review of the record.” But who needs accurate and verifiable facts when there’s a policy to block?

Takeaway #3: The Superficiality of the “Irreparable Harm” Response

Chief Justice Roberts’s refusal to take the equities on the government’s side seriously was problematic (and hypocritical) enough. But after Justice Breyer proposed a more modest order—one that would nudge the D.C. Circuit to hustle and make clear that the state applicants could come back to the Court if the Obama administration didn’t grant them extensions (which should’ve dissipiated any irreparable harm)—Roberts ratcheted up his rhetoric about the irreparable harm the applicants would still suffer: “[Breyer’s] proposed order forces each state to engage its regulatory apparatus and expend resources well before that date, and does nothing to limit the on-going, cumulative, and irreversible harms that private parties are incurring each day under the rule.”

Of course, forcing a state to “engage its regulatory apparatus and expend resources” is not, and has not in any other case been, irreparable harm. A state can always be given its resources back—which is why emergency relief is almost never available in cases seeking monetary relief. As for the private parties, Justice Kagan’s memo pointed out both that, if states received the promised extensions, any harm (let alone irreparable harm) would likely be paused as well—and that the parties’ claims to the contrary was “both entirely speculative and highly doubtful.” After all, the rule didn’t require private parties to do anything; it required states to set emissions targets and then come up with their own regulations to meet them.

Instead, what seems to have really been going on here is that Chief Justice Roberts was offended by the belief that the EPA had already thumbed its nose at the Court in a different case—about the Mercury and Air Toxics Standards, which a number of actors had complied with before the Supreme Court struck them down on the merits in June 2015. As Justice Alito put it in his memo, “A failure to stay this rule threatens to render our ability to provide meaningful judicial review—and by extension our institutional legitimacy—a nullity.”

Of course, why voluntary compliance with a rule while it’s being challenged threatens the Court’s institutional legitimacy is beyond me, let alone why that same argument didn’t augur in favor of relief in, say, the Texas abortion case (where Alito was in the majority in denying relief). Again, there are two layers to the problems: the putative principles don’t make sense; and even if they did, the justices’ application of them sure seems to depend upon the partisan valence of the dispute. (Roberts may also have been worried that, by the time the case returned to the Court on the merits, it might be a different Court—with the 2016 election obviously looming in the background. This might also explain why Breyer and Kagan were willing to embrace a compromise that would effectively move everything back two years.)

Takeaway #4: The Refusal to Acknowledge the Precedent They Were Setting

I mentioned already that neither of Roberts’s memos acknowledged the novel step the Court was taking. The closest he came was admitting that what he was proposing was “unusual.” Justice Kagan, in contrast, was clear-eyed about the novelty: “As far as I can tell,” she wrote, “it would be unprecedented for us to second guess the D. C. Circuit's decision that a stay is not warranted without the benefit of full briefing or prior judicial decision.”

She was right. Contra what some right-wing commentators have claimed, the Clean Power Plan cases were something new—emergency relief to directly block an executive branch program (none of their earlier examples are anything of the sort). And yet, neither Kagan’s memo nor any of the other memos reflected any appreciation on the Court’s part for the fact that, by granting such unprecedented relief, the justices were establishing a new precedent—and signaling that they would be more open to other (less-unprecedented) requests for emergency intervention in cases about statewide or nationwide policies going forward. There were examples of emergency relief before and after the Clean Power Plan cases, but something undeniably changed on February 9, 2016.

And yet, it didn’t seem to occur to anyone during those five days in February 2016—or, at least, in anything that was written down—that, once this particular seal was broken, it would be so difficult to get the toothpaste back in the tube. Indeed, there have been three subsequent cases in which the Court provided this exact type of emergency relief—blocking the CDC’s COVID-related eviction moratorium in August 2021; OSHA’s vaccination-or-testing mandate in January 2022; and the EPA’s “Good Neighbor” ozone pollution rule in June 2024. All three, of course, were Biden administration policies. And more generally, it’s not a coincidence that the massive uptick in the volume of emergency relief granted by the Court followed only after the ruling in West Virginia v. EPA.

Takeaway #5: The New York Times and the Shadow Docket

Finally, this is the third major story the Times has published with inside (and previously unreported) information about how major cases unfolded on the emergency docket; earlier stories covered the September 2021 Texas abortion case (as part of a broader story on the road to Dobbs); and the presidential immunity case during the October 2023 Term. Indeed, as it noted in February, the Times has made a substantial, public committment to providing more in-depth coverage of the Supreme Court, and these stories have all been, in my view, remarkable (and, I’d argue, laudable) feats of journalism to that end. The folks (mostly on the right) insisting that the memos aren’t especially newsworthy are, frankly, telling on themselves.

But there’s a larger point here that I can’t resist making: The term “shadow docket” has itself become something of a litmus test for how one feels about the Supreme Court. Those who are even mildly supportive of the Court won’t be caught dead using the term; and even critics have started moving away from it, perhaps largely to avoid wasting time over terminology. Fair enough.

But the reason why Will Baude coined the term in 2015, and why I’ve used it since, is very well captured in Saturday’s Times story: The Court is deciding massively important questions not just out of public sight, or through unsigned and unexplained rulings, but with remarkably cryptic behind-the-scenes deliberations, too. These decisions are being made in the “shadows” in any number of ways. To use the term “shadow docket” to capture the inaccessibility, inscrutability, and insufficiency of the Court’s output in these massively important cases is simply to describe a pattern of behavior that should trouble everyone, and not just those who also don’t like the results.

And though some degree of secrecy and confidentiality is inherent in the ability of a court to do its job, it seems to me that the lack of depth or detail behind the scenes, or public explanation in front of it, did not serve the Court well in the Clean Power Plan cases—and hasn’t served it well since. Instead, Saturday’s reporting seems to bear out almost every significant criticism of the contemporary Supreme Court with respect to how it processes, analyzes, and rules on applications for emergency relief.

Someone really ought to write a book about all of that.

SCOTUS Trivia: Chief Justice Stone’s Passing

Eighty years ago this Wednesday, on April 22, 1946, the Court was in the middle of handing down 12 opinions in argued cases when Chief Justice Harlan Fiske Stone had a medical episode on the bench—apparently while beginning to read his opinion for the Court in Heiser v. Woodruff.3 Justice Black called a brief recess while he and Justice Reed helped Stone off the bench. Stone was stabilized by physicians—enough that his wife drove him home. But he passed away that night from a cerebral hemorrhage.

Stone’s passing was not just entirely unexpected and immensely sad, but it touched off a significant amount of drama over who would succeed him—for a seat that, by many accounts, President Franklin D. Roosevelt had promised to Justice Robert Jackson (who was himself away at Nuremberg at the time), before FDR himself passed away in April 1945. I told a fair amount of this story in my January 2023 post on the “Black-Jackson Feud”—the remarkably ugly public row between Jackson and Justice Hugo Black; one line that has stuck with me since writing that post is how Jackson, some years later, began a draft review of Merlo Pusey’s biography of Charles Evans Hughes. He was surely harkening back to April 1946 when he wrote that "Washington adores a funeral—especially if it ushers in a vacancy.”

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!

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This week’s bonus topic was prompted by three different conversations in which I’ve participated in the last three days—each of which has reflected a particular variation on the same broader theme. Monday afternoon and yesterday afternoon, I was part of two separate roundtable discussions (conducted under the Chatham House Rule), one about the erosion of the credibility and legitimacy of a significant government institution; and one about the inefficacy of existing constraints on the President’s power to use military force. In both sessions, at least some of the conversation focused on how to rebuild/reinforce those institutions and constraints—should the ability to do so present itself sometime soon.

And yesterday morning, I testifed before the Senate Homeland Security and Governmental Affairs Committee—suggesting, among other things, that the hearing’s focus (on, of all things, the Second Amendment) was singularly misplaced given all of the other conversations we should be having right now about both the widespread constitutional violations for which the executive branch is responsible and Congress’s refusal to do anything about them. During the Q&A, Senator Johnson attempted to brand me a hypocrite for asserting that President Trump is abusing the war powers—apparently oblivious to the fact that I have written, for decades, about how presidents of both parties have done so. (He also asked me if I support “the ayatollah.” I regret not responding that he’s “weak on crime.”)

What these conversations have in common is the difference between the separation of parties and the separation of powers. There are a lot of people out there who think that the way to fix our current problems is by putting different people in charge—people who will be in a position to rebuild internal and external trust in these institutions because they are the right kind of people and they’re on the right “team.”

I certainly agree that focusing on the people will help; principled leadership unquestionably matters—as its absence is driving home in spades on a daily hourly basis. But it seems to me that, among the many lessons the past 15 months have (or should have) taught us, an especially important one is that the wrong people can, in very short order, undermine trust that it took years, if not decades, for the right people to build. And we should all be clear-eyed about the possibility that the American people will elect the wrong people again.

The goal of a reconstructive agenda, then, has to be not just about rebuilding the institutions from the inside out, but ensuring that there are better external checks in place, should history repeat itself, to constrain the ability of the wrong people to abuse their authority quite so easily—by creating or expanding external accountability mechanisms. The old Russian proverb that President Reagan parroted is “trust but verify.” As I elaborate upon below the fold, the theme of any rebuilding agenda ought to be “verify, don’t trust.”

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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On Friday, the en banc Fourth Circuit handed down its much-anticipated ruling in the lawsuit challenging DOGE’s access to Social Security data—a case in which, as I noted in January, the Department of Justice had to “correct the record” to identify six different material misrepresentations that it had made to the district court in that case—five that stemmed from declarations from Social Security Administration personnel, and one that came directly from a DOJ brief. Although the court of appeals on Friday largely endorsed the plaintiffs’ challenge, it nevertheless vacated the district court’s injunction at least largely because the Supreme Court had already stayed it last June—never mind the subsequent … developments … in the district court.

What is especially striking about the court of appeals’ decision are the separate opinions respecting it: Six of the court’s Democratic appointees dissented almost entirely because of the weight the majority opinion gave to the Supreme Court’s thinly explained June 2025 intervention; and six of the court’s Republican appointees, in concurring opinions by Judge J. Harvie Wilkinson III and Julius Richardson, wrote separately to criticize the dissenters not only for failing to give the Supreme Court’s intervention sufficient weight, but for having the temerity to criticize the Supreme Court for not doing more to explain itself.

What this divide underscores is a phenomenon for which there is plenty of other evidence: how much views of the Supreme Court’s behavior on emergency applications (and not just the results the Court is reaching) are sorting folks ideologically. Besides simply documenting this phenomenon in today’s “Long Read,” I also aim to criticize it. There isn’t, or at least shouldn’t be, anything inherently ideological about believing that the Supreme Court should have to explain itself when it intervenes in cases in ways that upend the status quo—or, at the very least, in criticizing the Court when it both doesn’t explain itself and insists that lower courts must follow whatever tea leaves can be divined from its explanation-free interventions.

When the Court itself has told us, over and over again, that its legitimacy depends upon its ability to persuade readers through the principles it articulates in its decisions, defending the Court’s double-edged (if, ironically, unexplained) abandonment of that understanding isn’t “conservative” any more than criticizing it is “liberal.” Rather, it’s just covering for bad behavior that has nothing to do with ideology—and everything to do with power.

More on that below. But first, the (other) news.

On the Docket

The Merits Docket

Last week’s Order List brought with it a series of “GVRs”—orders in which the Court summarily granted certiorari, vacated lower-court rulings, and remanded for further proceedings. Two of particular note were in the Steve Bannon case, in which the Court sent the case back to the district court to consider the Department of Justice’s motion to dismiss Bannon’s conviction for contempt of Congress; and in FBI v. Fazaga, a long-running, ugly dispute over surveillance of Muslim Americans in Southern California allegedly motivated by anti-Muslim bias, which the Court sent back to the district court to sort out what to make of recent claims by a former FBI operative that he “made up” some of the allegations that have formed the basis for the plaintiffs’ claims.

The Court also added to the merits docket for next term a dispute over whether federal district courts have the authority to hear challenges to the constitutionality of federal laws affecting veterans’ benefits, or whether, as the Eleventh Circuit held, such challenges must be brought through the system Congress created for veterans’ benefits cases—through appeals to the Court of Appeals for Veterans Claims and thence to the Federal Circuit.

If you’re keeping score at home (more on this in the trivia, below), that brings to a grand total of just six the number of cases the Court has granted to date for the October 2026 Term.

The Emergency Docket

There was only a single new1 full-Court ruling on an emergency application last week—a denial, over no public dissents, of a strange application from an Ohio congressional candidate who state officials removed from the Republican primary ballot because he is not, in fact, a Republican.

I’m not aware of any pending applications that are likely to produce a full-Court ruling this week.

The Week Ahead

We don’t expect a regular Order List today. Instead, the only thing currently on the Court’s calendar is a public, “non-argument session” on Friday—which could end up including the handing down of one or more rulings in argued cases, but hasn’t yet been announced as such. Otherwise, it could end up being an especially quiet week at the Court.

Miscellaneous

On Wednesday, the Court formally transmitted to Congress proposed revisions to the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Evidence. I didn’t see anything in the proposed changes of interest to non-lawyers (only the bankruptcy changes are substantial). But for those curious about the Court’s rulemaking power and process, see this earlier post.

Finally, I’d be remiss in not noting the remarkable comments Justice Sotomayor made last week during a public (but not recorded) event at the University of Kansas School of Law—specifically about Justice Kavanaugh and his concurring opinion in the ICE profiling case, Noem v. Vasquez Perdomo. As reported by Jordan Fischer for Bloomberg Law, Sotomayor said “I had a colleague in that case who wrote, you know, these are only temporary stops.” She continued, “[t]his is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”

It seems worth making two different points about Sotomayor’s comments. First, they strike me as wildly out of character. Justice Sotomayor is not shy about expressing her own background and beliefs in public, behavior for which she receives far too much grief from motivated critics on the “right.” But this is different; it’s a personal attack on a colleague in a register that is not just uncommon, but, in my own view, unbecoming. One can be deeply critical of Justice Kavanaugh’s Vasquez Perdomo concurrence (as I was and remain) without making it personal.

Second, the unusually personal nature of Sotomayor’s comments leads me to wonder what prompted them. It’s been more than seven months since the Vasquez Perdomo ruling came down, so why is Sotomayor making hay about it now? The best explanation is that something else deeply ugly has happened and/or is happening inside the Court—and the best candidate for that is, in my view, Callais (the Louisiana redistricting cases). Perhaps the justices are just now finalizing their votes, or their separate opinions, and there was some kind of exchange that put Sotomayor and Kavanaugh at such loggerheads. We may never know, but I’ll just say that whatever else one thinks of Sotomayor’s comments, she’s far too sophisticated and used to these kinds of public appearances for them to have been accidental. Which raises the question we may never be able to answer: to what end?

The One First “Long Read”: The Ideological Divisiveness of Shadow Docket Critiques

Friday’s en banc Fourth Circuit ruling in the DOGE/Social Security case is a bit complicated, because it includes multiple different holdings that divided the full court of appeals’ 15 active judges into a series of different camps. But to make a long story short(er), the court reached three holdings with respect to the district court injunction (which had limited DOGE’s access to Social Security Administration data)—two in support of it, and one that led the majority to vacate the injunction and remand the case for further proceedings:

1. “[W]e disavow any suggestion [in an earlier decision by a Fourth Circuit panel] that district courts should assign numerical probabilities to a plaintiff’s chances of success on each issue and then multiply those probabilities together to determine whether the plaintiff’s ‘overall odds’ of success are high enough to warrant a preliminary injunction.” Likelihood of success, instead, should be assessed pursuant to the traditional, equitable criteria.

2. “Before entering a preliminary injunction, the district court concluded that plaintiffs had sufficiently established standing to pursue at least some of their claims. Reviewing that issue de novo, we agree”; and

3. Despite the new evidence in the record, “[t]he district court did not grant this preliminary injunction on the theory that plaintiffs’ members would be harmed by some downstream misuse or public disclosure of their personal data” (which is what the “corrections” seemed to confirm). Instead, “the irreparable harm on which the district court relied” has “two forms of corrective relief that may be available down the line: money damages and a reparative permanent injunction.” In other words, without regard to the merits, the Fourth Circuit vacated the injunction by concluding that the harms on which the district court had previously relied to justify preliminary relief lacked an adequate alternative remedy.

The third holding is the one that provoked sharp dissents from six of the court’s judges—Judges King, Gregory, Wynn, Thacker, Benjamin, and Berner. Much of the dispute is over whether, and to what extent, the court should have taken heed of the subsequent “corrections” of the record filed by the Department of Justice, or a related whistleblower report seeming to substantiate some of the plaintiffs’ allegations. After all, appellate courts can affirm district courts on any ground supported by the record—including corrections thereto.

But beyond that procedural point, I was struck by the sniping between the two separate dissenting opinions and the two concurring opinions over the precedential force of the Supreme Court’s June 2025 stay of the same injunction in the same case.

First, let’s start with what the Supreme Court actually said last June. Skipping over the first paragraph (which simply summarized the posture) and the last (which was the boilerplate language imposing the stay), here’s the sum total of the Court’s “analysis”:

When considering whether to grant a stay, this Court looks to four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U. S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U. S. 770, 776 (1987)). After review, we determine that the application of these factors in this case warrants granting the requested stay. We conclude that, under the present circumstances, SSA may proceed to afford members of the SSA DOGE Team access to the agency records in question in order for those members to do their work.

As you may have noticed, there was no suggestion of why the Court “determine[d]” that a stay was warranted. Thus, although the order in SSA v. AFSCME doesn’t count as one of the Court’s entirely unexplained grants of emergency relief, it certainly is effectively unexplained. Nor can we assume the Court found a particular argument by the Department of Justice compelling; in its application for a stay, DOJ identified three very different grounds on which it was likely to succeed on the merits: a lack of Article III standing; a lack of “final agency action” for purposes of the Administrative Procedure Act; and that what DOGE was doing was perfectly lawful on the merits. Suffice it to say, those are three very different grounds for a stay.

Judge King’s dissent noted one problem with the Fourth Circuit relying upon the Supreme Court’s order in this context; Judge Wynn’s dissent noted another. Taking Judge King first:

[T]he proper outcome of this appeal cannot possibly be preordained, in that the Supreme Court had to rely on the erroneous original record in issuing its stay ruling, while we must assess the merits of the preliminary injunction on the basis of the corrected record. Simply put, the facts now known are materially different from the facts considered by the Supreme Court, foreclosing any notion that the Court’s Nken stay analysis controls our Winter preliminary injunction assessment.

And in his dissent, Judge Wynn also explained the myriad ways in which the question the Supreme Court was asked to decide last June is a meaningfully different one, even on the same record, as the one before the Fourth Circuit on this appeal. Moreover, Judge Wynn flagged the problems with relying upon an unexplained order in a context in which there were multiple potential grounds for granting a stay. As he put it, “an interim order has legal effect—it binds us as to its result. But to say that an interim order has effect is not to say that it has reasoning. And without reasoning, its reach extends no further than its result.”

At a more basic level, Wynn continued, the real problem with treating the Supreme Court’s stay as compelling a vacatur of the injunction is treating the stay as effectively deciding the appeal. Given that the Supreme Court itself has affirmed preliminary injunctions on the merits after staying them, it just doesn’t follow that, without any analysis, a stay does or should foreordain the merits in the same case. (Indeed, if the Supreme Court’s stay had been based on agreement with the government that the plaintiffs likely lacked Article III standing, then the Fourth Circuit’s ruling on Friday is directly inconsistent with that unexplained result—since Judge Heytens’ majority opinion specifically held that the plaintiffs do have standing.)

That brings me to the two concurring opinions. Judge Richardson’s opinion, joined by Judges Wilkinson, Niemeyer, Agee, Quattlebaum, and Rushing, takes an even more radical view of the precedential force of unexplained Supreme Court grants of emergency relief—arguing that “Supreme Court interim orders bind lower courts at the preliminary stage in like cases,” period.

With all due respect to Judge Richardson, that’s not what the Supreme Court majority said in the case from which he claims that proposition follows—Trump v. Boyle. There, the Court wrote only that, “[a]lthough our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.” That’s a far cry from saying they “bind” lower courts in like cases. And in any event, even the same case at Time 2 may be meaningfully different from what it was at Time 1, given shifts in the nature of the factual and legal record (as this case illustrates). Thus, whether two cases are “like” can’t be determined simply by an unexplained Supreme Court order at Time 1, even when the second case is the same case at Time 2. (Nor are Judge Richardson’s citations to Justice Gorsuch’s NIH concurrence persuasive; whatever one thinks of that two-justice opinion, it necessarily was not speaking for the Court.)

And then there’s Judge Wilkinson’s concurrence—which takes issue with the tone of Judge King’s and Judge Wynn’s dissents:

I regret my dear colleague Judge Wynn’s rhetorical assault upon the Supreme Court and my friend Judge King’s support of it. It is one thing to regret “emergency motions made under intense time pressure.” It is quite another to repeatedly lambast the Court for the “unexplained and summary nature” of its orders and to declare that “interim orders announced without reasons can just as easily be ignored without explanation,” which more than hints that this and future courts would be willing to do so. And while Judge Wynn states that “a stay may be a strong signal” as to the ultimate outcome on the merits, his opinion then proceeds to ignore that signal in this very case. My brothers King and Wynn have delivered a stern warning to the Supreme Court. This creeps too near the water’s edge of defiance for my comfort.

As someone who has long admired Judge Wilkinson (even when I’ve disagreed with him), this strikes me as a remarkably uncharitable reading of the two dissenting opinions in the guise of tone policing. Judge Wynn’s point about lower courts being ignored wasn’t a threat; it was an effort to underscore the problem with this entire misbegotten enterprise of giving precedential effect to decisions with no analysis—that lower courts might do it, too. And complaining that Judge Wynn “ignore[d]” the “strong signal” the Supreme Court sent last June misses the point that “strong signals” aren’t necessarily conclusive—and that Judge Wynn devoted significant explanation to why he didn’t think the signal here was.

After criticizing his colleagues, Judge Wilkinson turned toward rationalizing the Supreme Court’s behavior:

To be sure, in an ideal world, every ruling would be accompanied by full briefing, oral argument, lengthy and reasoned opinions, and the like. To truncate or dispense with that process on too frequent a basis would indeed reflect an arbitrariness that risks public faith in the judicial process. But there is another side to this. The Supreme Court is the one judicial body that can establish a degree of uniformity in the application of what is, after all, our national law. And if the Court senses something is very wrong, it cannot then be right to just let it go. Or if the rulings of lower courts are not only disparate but chaotic, is the Court just to shrug it away? Better by far to issue a stay with the expectation that its assessment will have at least some effect in those instances where cases are factually and legally similar. The stay holds matters in place, gives lower courts the chance to analyze and reflect, and achieves a measure of uniformity pending the ultimate decision on the merits. It is a useful device when used sparingly, and if the danger of overuse is arbitrariness, the risks of underuse are anarchic.

My colleagues jump too quickly onto the bandwagon of those who condemn each and every use of the Supreme Court’s emergency docket, no matter how justified. The unfortunate effect of Judge King and Wynn’s approach will be to aggrandize the role of the lower federal courts at the expense of the Supreme Court’s own place in a hierarchical judicial system.

Leaving aside that I’m unaware of anyone, present company included, who “condemn[s] each and every use of the Supreme Court’s emergency docket,” the first paragraph can’t be reconciled with what the Court has actually done over the past 14 months. This is not a device that has been “used sparingly”; there were as many grants of emergency relief during OT2024 as there were non-unanimous merits rulings. Nor is the Court using the emergency docket to “establish a degree of uniformity”; what was the uniform national rule that emerged from the Court’s unexplained June 2025 intervention in the Social Security case? (Or from CASA, where Justice Kavanaugh argued at length for the Court providing a “nationally uniform interim answer,” and then … didn’t in that very case.) And if there is some systemically problematic behavior by lower courts that’s leading to “chaotic” rulings each of which are demanding the Court’s intervention, well, the justices have yet to actually say what that behavior is, let alone why it’s wrong. Instead, Judge Wilkinson’s concurrence is propping the Supreme Court up entirely on the backs of straw men.

All of that leads to the question with which I started the post: Why is it that these kinds of defenses of the Court’s behavior are coming only from judges and commentators of one particular ideological bent, while the sharpest (albeit not the only) criticisms are coming from those on the “other” side? Why is it so hard to build consensus around the idea that the Supreme Court ought to explain itself if it wants to intervene in these cases—and, at the very least, that the absence of any explanation should all-but preclude giving the Court’s unexplained intervention any precedential force?

When the Court (and individual justices) in the past have explained the relationship between reasoned explanations and public confidence in the Court, those explanations have not come from the wings of the Court; they’ve come from its center. Here’s the joint opinion in Casey:

The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands. The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all.

And here’s Justice Kennedy in March 2001, defending the Supreme Court’s decision in Bush v. Gore while testifying at a congressional hearing alongside Justice Thomas:

Justice Thomas and I and our colleagues will be judged not by what we say after the fact in order to embellish our opinions or detract from what some of our collegues say, we will be judged by what we put in our appellate reports. That’s the dynamic of the law. . . . My colleagues and I want to be the most trusted people in America. How do you instill that trust? Over time you build up a deposit, a reservoir, a storehouse of trust.

In other words, not that long ago, we took for granted that the Court’s power came from its ability to persuade us—not that the principles on which its rulings were based were necessarily correct, but at least that they were principles. These days, too many of us have become inured to the idea that the Court owes us no such persuasion. That’s remarkably disappointing—and an alarming sign of the thinness of the Court’s contemporary power.

At a basic level, I understand why the Court can’t always write. And I even understand why, even when it grants emergency relief, the Court doesn’t want to write. But whether or not one believes the Court should always be writing in these cases, it really shouldn’t be a “bandwagon” that divides us ideologically to suggest that lower courts shouldn’t have to give precedential effects to orders with precisely zero analysis. That’s not a “liberal” or “progressive” argument; it is an institutional one, one I find it increasingly hard to believe that anyone who takes judicial institutionalism seriously actually disputes.

SCOTUS Trivia: Halfway Home in OT2025

Last Monday (April 6) marked the formal halfway mark for OT2025—26 weeks in. To that end, I thought it would be useful to track where things stand (relative to last term) with regard to (1) decisions of the Court; (2) the emergency docket; and (3) what’s been granted for next term.

Starting with the merits docket, the Court as of last Monday had handed down 19 rulings in argued cases—exactly one-third of what we expect this term. At this point last term, the Court had handed down 21 rulings—but two were “DIGs” (dismissing certiorari as improvidently granted). So there were also 19 merits rulings at this point last year.

On the emergency docket, six months in to OT2024, the full Court had ruled on 59 emergency applications (on its way to a record of 140)—and had granted only four of them (it granted 27 in the second half of the term en route to a record of 31). Those totals for the first half of OT2025 are 56 full Court rulings and six grants. Of course, it’s possible we won’t see the same surge in applications (and grants) this summer that we saw last summer. But at least the (record-setting) denominator to this point is relatively similar.

Finally, as noted above, the Court has so far granted only six cases for OT2026. Through the first half of OT2024, the Court had granted eight cases for plenary review in OT2025. That different may seem modest, but given how much the Court’s docket has shrunk in recent terms, the paucity of grants for OT2026 to this point is potentially revealing.

Of course, we’ll see where the numbers end up come October. But at least at the halfway post, OT2025 looks a lot like OT2024—which, given how extraordinary OT2024 was, is a story unto itself.

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On July 16, 2024, the Supreme Court granted a stay of execution to Texas death-row inmate Ruben Gutierrez. That intervention wasn’t an especially noteworthy one—except that it remains, as of today, the last time that the justices granted emergency relief to block an execution. Emergency interventions in capital cases had been the bread-and-butter of the emergency docket from the 1970s all the way into the mid-2010s. But the Court’s change in personnel in 2018 and 2020 augured a dramatic shift in the Court’s death penalty jurisprudence writ large—and, with it, in the Court’s behavior on emergency applications in capital cases.

Indeed, the grant in Gutierrez was only the third time that the Court had blocked an execution since the beginning of the October 2020 Term—a period during which it has granted emergency relief to un-block executions ten different times. And since Gutierrez, the Court has denied at least 75 applications to stay executions from state prisoners—with only seven of those rulings drawing public dissents from even one justice, and only three drawing public dissents from three or more justices (one was 5-4).

In other words, however you slice the data, the bottom line is the same: even as the emergency docket has been busier than at any other point in the Court’s history, what Supreme Court clerks used to refer to as “the death docket” has all-but disappeared—at least as a source of interventions by the justices. Below the fold, I sketch out some thoughts as to why this has happened, and what its implications are both for death penalty cases and for how we think and talk about the emergency docket (and the Court) more generally.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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The Scottish writer Andrew Lang is usually identified as the source of one of my favorite quotes. Specifically, Lang once complained about economists using statistics “as a drunken man use lampposts—for support, rather than illumination.”

That line has been on my mind as I’ve been watching, mostly from the sidelines, a pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case. Starting with a tweet and a New York Times op-ed last February inisisting that there was already “an entire literature” supporting the government’s position, these folks have spent much of the last 14 months working hard to create the very literature they claimed already existed.

And when their efforts have been debunked by an ideologically diverse array of careful and serious scholars like Professors Evan Bernick, Paul Gowder, and Anthony Michael Kreis; Professor Michael Ramsay; and Professor Keith Whittington (among others), the revisionists have simply shifted the baselines of their claims rather than admitting that they were wrong and yielding the floor.1 (Kelsey Reichmann has a thorough article on the particulars via Courthouse News Service.)

I’ve written before about the obligations that law professors (especially those writing in public law) have when it comes to the scholarship they’re producing at this particular moment in American history—and I won’t rehash my thoughts here. Rather, it seems worth making two new points. First, at least based on how last Wednesday’s oral argument went, it certainly appears likely that those efforts will have been largely for naught.2 Solicitor General Sauer may have tried to allude to some of these newfangled arguments in his presentation; it didn’t sound to me like any of the justices were biting.

Second, as I elaborate upon below, it’s worth reflecting on the Court’s own responsibility for incentivizing this phenomenon—and how the move in the justices’ substantive constitutional jurisprudence toward “history and tradition” as dominant leitmotifs in constitutional interpretation necessarily invites the kind of “law-office history” that more responsible scholars have long decried and derided.

There’s a harder conversation (and, indeed, debate) to be had over the role that law schools play (and the responsibilities we bear) in supporting “scholarship” the purpose of which at least appears to be propping up a predetermined partisan political goal rather than meaningfully advancing academic understanding of a disputed historical or legal question. Academic freedom protects scholars’ right to challenge the orthodoxy; it doesn’t insulate them from charges of bad faith in doing so.3 But the problem here is one of both supply and demand. And for as much as recent discourse has been focused on the former, the Supreme Court bears at least some responsibility for the latter.

More on that below. But first, the news.

On the Docket

The Merits Docket

The Court handed down a single ruling in an argued case last week, but it was a biggie. In Chiles v. Salazar, Justice Gorsuch wrote for an 8-1 majority in holding that Colorado’s ban on “conversion therapy” regulates speech based upon its viewpoint—and must therefore be subjected to the most rigorous First Amendment scrutiny (i.e., it must be “narrowly tailored” to vindicate a “compelling governmental interest”).

Contra headlines in a number of media outlets, the Court did not itself “strike down” Colorado’s law. But given how difficult it is for laws to survive strict scrutiny (“strict in theory, fatal in fact,” as Professor Gerald Gunther famously put it in 1972), the writing is on the wall for what happens on remand. Justice Kagan wrote a short concurring opinion, which was joined by Justice Sotomayor. Kagan’s basic argument was that, although it’s possible for states to regulate conversion therapy through laws that are content-based but viewpoint-neutral, Colorado’s wasn’t—hence her vote with the majority. Justice Jackson dissented—and read her dissent from the bench (something the justices do only rarely, and in order to convey the gravity of their objections). At its core, Jackson’s argument was that “bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.” My own view, which I hope to revisit in a future post, is that there’s a lot to both that argument and Justice Kagan’s concerns about its full implications.

The other two significant developments on the merits docket last week came in Monday’s regular Order List. First, the Court added another case to the merits docket for the October 2026 Term—taking up a nerdy Civil Procedure dispute with regard to when and how defendants can waive affirmative defenses by failing to raise them in their answer. Second, Justice Sotomayor, joined by Justice Jackson, filed a lengthy dissent from the denial of certiorari in a case in which the Court had previously (and summarily) vacated the petitioner’s co-defendant’s conviction because of the prosecution’s Brady violations. As Sotomayor argued, “Equal justice under law, the phrase engraved on the front of this Court’s building, requires that two codefendants, convicted of the same crime, who raised essentially the same constitutional claims, receive the same answer from the courts.” Alas.

The Emergency Docket

It was another quiet week on the emergency docket, with no full Court rulings of any kind on a single application for emergency relief. Nor am I aware of any pending emergency applications that are likely to produce full Court rulings this week.

The Week Ahead

Speaking of the week ahead, the justices are off the bench—and not expected back on it until next Friday, April 17. Besides a regular Order List at 9:30 ET this morning, we do not currently expect anything else out of the full Court this week, including any more decisions in argued cases. That can always change, but at least for now, the 17th is the next likely day for any additional rulings.

Miscellaneous

Finally, I wanted to flag a story my CNN colleague Joan Biskupic broke Friday morning—that Justice Alito was hospitalized in March after becoming ill at a Federalist Society dinner in Philadelphia (the story reports that he was “evaluated and administered fluids for dehydration”). The Supreme Court put out a statement only after Biskupic’s story was filed. There are obvious reasons why the justices (and the Court) have historically been mum about these kinds of episodes. That said, it seems worth at least asking if it does more harm to the Court for these kinds of stories to come out only thanks to journalistic scoops rather than through an effort on the Court’s part to provide even a modicum of transparency. As I’ve suggested before, the Court has bigger transparency problems, but those problems help to magnify the smaller ones.

The One First “Long Read”:
History, Tradition, and the Legal Academy

Of all of the long-form academic pieces I’ve published in my career, my favorite is still a 52-page book review I published in the Harvard Law Review in 2011. Titled “The New Habeas Revisionism,” the piece was ostensibly a review of a fantastic legal history monograph—UVa professor Paul Halliday’s Habeas Corpus: From England to Empire. But it also aimed to situate Halliday’s work within the Supreme Court’s (misbegotten) effort to define the scope of the writ of habeas corpus protected by the Constitution’s Suspension Clause by reference to the writ “as it existed in 1789.”

Unlike decades (if not centuries) of scholars, Halliday didn’t try to answer that question just by reading secondary sources; he went to the archives. And in looking at thousands of actual writs of habeas corpus issued by English courts across the sixteenth, seventeenth, eighteenth, and nineteenth centuries, Halliday made a number of discoveries that were inconsistent with various pieces of conventional wisdom about both the scope of and limits on pre-revolutionary English habeas practice. I won’t get into those discoveries here (the review does that). The more important point is that Halliday’s book both argued for and demonstrated the value of this kind of careful, methodologically driven historical (and historiographical) scholarship. In his words,

[I]f lawyers and judges want to act on claims about history, we must first make a fully contextualized reclamation of those past principles. Only then might history serve law: not as a grab bag of poor analogies, but as an otherwise unseen position from which to think anew about the questions that law must answer.

As someone who is not a professional historian, I have always tried to keep Halliday’s admonition in mind—not least because his book does such a remarkable job of demonstrating so many of the ways in which less-careful histories of habeas corpus have distorted our understanding of what was actually true on the ground. And, as my review argued, those distortions, in turn, have skewed the Supreme Court’s own jurisprudence (and numerous modern debates) regarding the “Great Writ”—and not at all for the better. Indeed, the review used a quote from a brief by Harvard law professor Paul Freund, which nicely dovetails with the broader thesis of Halliday’s work, as its epigraph: “We shall have to look to history for the essentials of the Great Writ, but not to one point in that history for its accidents.”

To be sure, this concern about lawyers doing bad history (and doing history badly) is not a new one—and wasn’t when I published that piece 15(!) years ago. More than three decades ago, Fordham law professor Martin Flaherty bemoaned what he called history “lite” in American constitutional scholarship. As Flaherty documented (and lamented), “constitutional discourse is replete with historical assertions that are at best deeply problematic and at worst, howlers.”

The problem has not just been bad history by law professors; it’s been bad history (and demands for bad history) by Supreme Court justices. Here’s DePaul law professor Stephen Siegel in 2010:

Historians coined the epithet "law-office history" over a half-century ago to describe the way Supreme Court Justices distort the historical record to provide support for positions they take on constitutional controversies. The epithet encompasses many abuses of the historian’s craft, such as cherry-picking evidence, ignoring the context in which evidence was embedded, and drawing clear conclusions from evidence that was conflicting or indeterminate.

As you might imagine, the rise of “law-office history” coincided with the turn in American constitutional law and scholarship toward originalism—and the idea that ambiguous constitutional text could and should be interpreted based upon how that language was understood by certain actors (the identities of which have … evolved) at that time. That is, in the main, a historical question—one that lawyers who aren’t professional historians might be singularly unqualified to answer, but have endeavored to answer nonetheless. Thus, whatever else might be said about when and why American constitutional law became obsessed with history, that turn is, by now, a longstanding one.

What’s new are two moves the Supreme Court first started making in detail just four years ago—during its October 2021 Term. The first move has been toward a more amorphous demand for evidence of “historical tradition” (or “history and tradition”), rather than the (somewhat) more analytically rigorous demands of “originalism.” As Emily Bazelon explained in an April 2024 feature in the New York Times Magazine that focused on those 2022 rulings enshrining the new approach,

[Originalism’s] main selling point was to fix the meaning of the Constitution to the moment in which it was written, to prevent judges from substituting their values for the wisdom of the nation’s founders. Though originalism in practice never lived up to this promise, because judges used it inconsistently or to reach the results they preferred, “history and tradition,” unlatched from any one moment, is even more pliable and indeterminate. It lets judges choose from a vast array of sources, which makes it easy to cherry-pick.

This approach was reflected on consecutive days in the Court’s landmark rulings in New York State Pistol & Rifle Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization—in which the majority opinions by Justices Thomas and Alito seemed more interested in finding scattershot historical data points to support their conclusions than in being informed by the broader historical developments of what they asserted were the relevant eras. (Beyond the dissents in those cases, Justice Jackson’s dissent last year in Medina made this point powerfully in the context of the need for “a broader—and more inclusive—survey of historical sources” in unpacking the original understanding of 42 U.S.C. § 1983.)

All of that would be problematic enough by itself. But at the same time as a majority of the Court has been embracing an ever-more-amorphous conception of what kind of history matters, it has also started to treat law review articles much like Andrew Lang’s lampposts—as support, rather than illumination, for the historical propositions for which they were being cited.

Consider Justice Gorsuch’s concurrence in West Virginia v. EPA (filed a week after Bruen and six days after Dobbs, and the source of the image above). Justice Kagan’s dissenting opinion in that case had responded to the Court’s claim that the Constitution is generally wary of statutory delegations of policymaking authority to the executive branch by flagging exceptional (and exceptionally careful) recent scholarship about how (and how often) Congress in fact delegated such power in the first years after the Founding. Indeed, before the recent contretemps over birthright citizenship, the scholarly debate over non-delegation was probably the most recent example of such widespread engagement over a specific historical-legal question.

In a footnote, Justice Gorsuch responded by suggesting that, “if a battle of law reviews were the order of the day, it might be worth adding to the reading list.” And then he cited 12 other scholarly works—none of which actually responded to the revisionist accounts invoked by Justice Kagan. Nor did Gorsuch explain how the authorities he cited actually supported his (and the majority’s) position notwithstanding Justice Kagan’s dissent and the sources on which she relied. Apparently, it was enough that there was scholarship on the other side; Gorsuch’s “battle of law reviews” was not about which scholars were actually correct (or even which were more persuasive about the same Founding-era historical evidence); it was about the citation scoreboard. A law review article on one side can be defeated merely by the existence of an article on the other.

The Gorsuch footnote is, alas, no outlier. One can find any number of other examples of justices citing recent scholarship as proof of (or at least support for) historical claims that, whatever their merits, just have not run the gauntlet of conventional historical scholarship. History can be, and usually is, complicated (the Dutch historian Pieter Geyl called history “an argument without end”). But if the Supreme Court is going to try to backfill its conclusions with whatever citations it can muster regardless of their integrity or persuasiveness, someone will provide those citations. Justice Sotomayor captured this exact point last month in paraphrasing Field of Dreams about how the Court’s behavior provokes responses: “if you build it, they will come.”

We should necessarily be critical of the transparent (and transparently cynical) attempt to generate “an entire literature” in the birthright citizenship case at the exact moment that President Trump attempted to reignite such a long-settled constitutional debate. But so long as this is the Supreme Court’s attitude toward legal scholarship, law professors will write articles that are designed and intended to be cited as much as they are designed and intended to be learned from. We should all be better about that—including the justices.

SCOTUS Trivia: My Two Citations

Further to the point of today’s “Long Read,” I thought I’d use the trivia to flag the two times my own work has been cited in Supreme Court opinions—both of which, I can safely say, were not part of any “battle of the law reviews.”

The first, perhaps unsurprisingly, was on the emergency docket—in Justice Sotomayor’s September 2019 dissent from the grant of a stay in Barr v. East Bay Sanctuary Covenant, in which the majority put back into effect one of the (first) Trump administration’s controversial asylum restrictions.

The second was, ironically enough, a citation to my Halliday review in Justice Jackson’s dissenting opinion in Jones v. Hendrix—as part of her refusal to accept that the Suspension Clause should be limited to protecting the scope of habeas corpus “as it existed in 1789.”

Something tells me it might be some time before there’s a third…

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One of my favorite one-liners about dissenting opinions belongs to Judge Henry Friendly—the highly regarded former Second Circuit judge for whom Chief Justice Roberts and Merrick Garland (among plenty of other legal luminaries) clerked. As Friendly wrote in an otherwise unexceptional 1960 decision, “dissenting opinions are not always a reliable guide to the meaning of the majority; often their predictions partake of Cassandra’s gloom more than of her accuracy.”

I was reminded of Friendly’s quip earlier this week while reading my friend and Harvard law professor Richard Re’s post, “The Dissenter’s Dilemma and Trump v. CASA.” Writing before yesterday’s oral argument, Re’s focus was on the two opinions penned by Democratic appointees last June in dissent from the Court’s narrowing of universal injunctions in Trump v. CASA, Inc. (the first tranche of birthright citizenship cases to reach the Court). To Re, “recent events have undermined claims made by the CASA dissenters,” specifically the concerns expressed by both Justices Sotomayor (in an opinion joined by Justices Kagan and Jackson) and Jackson (writing for herself) that the CASA ruling would make it much harder for courts to rein in executive branch lawlessness—with, to them, obvious (and ominous) consequences for the rule of law.

The “dilemma” Re identified is the conflict between a dissenter’s desire to “fuel outrage over a decision’s potential reach and to minimize the same decision’s actual consequences.” And as Re concludes, “to the extent that the [CASA] dissenters made testable claims, those claims have not been borne out. The dissenters’ doomsaying, in other words, can be viewed as both falsifiable and falsified.”

In one very limited respect, Re is correct. Not only did last June’s ruling in CASA impose no serious obstacle to the justices’ eventual consideration of the legal merits of President Trump’s birthright citizenship executive order, but lower courts were able, in the interim, to prevent that executive order from going into effect by pursuing procedural pathways to nationwide (or effectively nationwide) relief that CASA did not foreclose. From the specific perspective of President Trump’s effort to constrain birthright citizenship, it is objectively true that the dissenters’ concerns did not come to pass.

But what Re’s post neglects, as I pointed out in a New York Times op-ed that was published last night, is that the birthright citizenship case is an outlier in this exact respect—and deliberately so. The Trump administration appealed to the Supreme Court, and the justices agreed to hear its appeal, entirely because the government promised that it would. Indeed, that concession during the oral argument last May in CASA was a critical one—as reflected, among other things, in the fact that Justice Barrett went out of her way to memorialize it in footnote 18 of her majority opinion. The birthright citizenship issue was always coming back to the Court; the justices—from across the bench—made sure of it.

The government has made no similar promises about other cases—and the Court hasn’t asked for them. And appeals or no, one need not look far to find other contexts in which the pathways to nationwide relief that CASA left intact—Rule 23(b)(2) class actions; vacatur under the Administrative Procedure Act; or the modest remaining category of “universal” injunctions—have not been available in practice. The result in numerous contexts has been a combination of litigation chaos and an inability on the part of lower courts to rein in apparent executive branch lawlessness on a systemic basis—exactly what Justices Sotomayor and Jackson warned against in CASA.

Right after the CASA ruling came down last June, I wrote about how CASA’s real implications—and the accuracy of the dissenters’ predictions—would depend upon the answers to three different questions. And as I write this post nine months later, the jury is still out on … all three of them. The point is not that the CASA dissenters’ warnings were clearly correct; it’s that the lens of the birthright citizenship case—and only the birthright citizenship case—is a fundamentally flawed one through which to argue that they have already been proven wrong.

For those who are not paid subscribers, we’ll be back (no later than) next Monday with our regular coverage of the Court. For those who are, please read on.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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When University of Chicago law professor Will Baude coined the term “shadow docket” in 2015, he was writing principally in response to an uptick in a particular type of ruling off of the merits docket—a “summary reversal,” which is the (somewhat misleading) term often used to describe cases in which the justices dispose of an appeal through an unsigned opinion at the certiorari stage, rather than after granting certiorari, receiving plenary briefing, and holding oral argument. (Yes, Baude’s use of the term “shadow docket,” like mine, encompasses quite a bit more than just emergency applications.1)

Summary reversals aren’t conventional “merits” rulings; they’re decided based only upon the cert.-stage briefs (which, as we’ll see below, can rather skew the presentation), and without oral argument. Indeed, the idea is supposed to be that the lower court’s error is so obvious and apparent that there’s no need to conduct plenary review. But they still produce an “opinion of the Court,” one that the current Court treats as having comparable precedential effects to rulings it hands down after plenary review.

In 2015, Baude was reacting to a dramatic mid-decade uptick in the number of such summary rulings. But as Kalvis Golde documented in a fantastic student note in the Columbia Law Review, summary reversals had petered out shortly thereafter and into the early 2020s; indeed, during the entire October 2023 Term, there were none. (Adam Liptak wrote a piece in the New York Times in February 2025 citing Golde’s note and noting that “the justices have all but stopped issuing summary reversals.”) But less than halfway through the October 2025 Term, we’re already up to five summary reversals—the latest of which came last Monday in Zorn v. Linton, in which the Second Circuit had denied qualified immunity to a Vermont police officer on the ground that using a “rear wristlock” on a protester passively resisting arrest constitutes excessive force. Over public dissents from the three Democratic appointees, the Supreme Court reversed—“[b]ecause the Second Circuit failed to identify a case where an officer taking similar actions in similar circumstances ‘was held to have violated’ the Constitution.”

As I explain below, the ruling in Zorn is a useful illustration of two distinct sets of problems: the problems with the Supreme Court deciding these cases at the cert. stage at all; and the problems with its qualified immunity jurisprudence more generally. Zorn is likely to be cited going forward for only further limiting the circumstances in which a plaintiff can recover damages for a constitutional violation by government officers—in a context in which the Court’s consideration (and its analysis) was both cursory and skewed. If the justices want to make material expansions to their qualified immunity jurisprudence (which is problematic enough already), they ought to do so, at the very least, on the merits docket.

More on that below. But first, the other news.

On the Docket

The Merits Docket

After the summary reversal in Zorn, the Court also handed down two rulings in argued cases last Wednesday:

1. In Rico v. United States, Justice Gorsuch wrote for an 8-1 majority in rejecting the Ninth Circuit’s rule that, for purposes of federal criminal sentences, an absconding defendant’s term of supervised release does not expire when a court has directed—but continues to run so long as the defendant remains out of contact with his probation officer.2 As Gorsuch explained, although the Ninth Circuit described this rule as a “tolling” rule, it’s really an extension of supervised release—something the Sentencing Reform Act does not authorize without far more case-specific facts and findings. Only Justice Alito dissented.

2. In Cox Communications, Inc. v. Sony Music Entertainment, Justice Thomas held for seven justices that an internet service provider can be contributorily liable for a user’s copyright infringement only if it intended that its provided service be used for infringement—which can be shown only if the provider induced the infringement or the provided service is tailored to that infringement. Justice Sotomayor (joined by Justice Jackson) concurred in the judgment—agreeing with the result in this case, but disagreeing with how much the majority opinion narrows secondary liability for copyright infringement in other cases.

Monday’s Order List also brought with it two different opinions by Justice Sotomayor dissenting from denials of certiorari:

1. Reed v. Goertz is a case the Court has heard before, in which a Texas state prisoner is seeking access to the murder weapon in the case in which he was convicted of capital charges, so he can conduct a DNA test that (he claims) will exonerate him. Texas has refused, and the Fifth Circuit rejected two of Reed’s three constitutional objections to Texas’s refusal to conduct such a test (and apparently skipped right over the third). As Sotomayor argued in a dissent joined by Justices Kagan and Jackson, the Court should at least require the Fifth Circuit to actually resolve Reed’s third argument—and then grant cert. if it rejects it. Instead, by denying certiorari, “the State will likely execute Reed without the world ever knowing whether Reed’s or Fennell’s DNA is on the murder weapon, even though a simple DNA test could reveal that information.” Sigh.

2. Villareal v. Alaniz also comes from the Fifth Circuit, where a deeply divided en banc court had held that a police department and district attorney’s office were entitled to qualified immunity in a civil suit by a citizen journalist who alleged that they had retaliated against her because they disliked much of her reporting on their activities—holding that, because Villarreal alleged that the officials violated her First Amendment rights by arresting her, she had to prove a Fourth Amendment violation too (i.e., that the arrest was itself unconstitutional, and not just retaliatory). Justice Sotomayor’s dissent outlined the three different problems with that analysis; I won’t rehash them here. And although denials of certiorari aren’t precedential, it’s more than a little alarming that the Court would leave intact a Fifth Circuit ruling that makes it so much harder for journalists to seek remedies when they are retaliated against for constitutionally protected newsgathering—especially for those journalists working in the Fifth Circuit’s three states, i.e., Louisiana, Mississippi, and Texas.

The Emergency Docket

It was an unusally quiet week on the emergency docket—without a single full Court ruling on an application. Nor is that likely to change this week; I’m not aware of any pending applications that are likely to produce a full Court ruling (let alone a ruling this week).

The Week Ahead

Instead, the real focus of this week is going to be the merits docket. We expect a regular Order List at 9:30 this morning, followed by the second week of the “March” argument session starting at 10:00 (the highlight of which is unquestionably the birthright citizenship case, which is set for oral argument on Wednesday).

The Court has also announced that it will hand down one or more rulings in argued cases on Tuesday at 10:00 ET. I know everyone is focused on the “big” cases, and maybe some of those are coming soon. But there are still plenty of cases of more modest political or legal importance that were argued in November or December and decisions in which remain outstanding. It wouldn’t surprise me if those were the focus of Tuesday’s hand-downs.

Miscellaneous

Finally, the Court has tweaked the oral argument calender for the “April” session (which begins on April 20) to account for the late-added argument in the Haiti and Syria TPS cases. Those cases will now be the first argument on the last scheduled day of arguments for the October 2025 Term, i.e., Wednesday, April 29.

The One First “Long Read”:
Qualifying Official Immunity

As I teach my Federal Courts students, the idea that government officers should be entitled to at least some immunity from having to pay damages when they commit constitutional violations isn’t a new one. Indeed, the Supreme Court’s modern articulation of the standard for what’s now known as “qualified immunity” dates to its 1982 ruling in Harlow v. Fitzgerald, which held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Although the Court still follows this test, it has done two things in the ensuing 44 years, in particular, that have helped to make qualified immunity (“QI”) such a font of controversy—and to make it far harder for victims of constitutional violations to recover not just today, but tomorrow.

First, the Court has clarified that the “clearly established” question is not whether the plaintiffs’ rights were clearly established, but whether it was clearly established that the defendant’s conduct was unconstitutional. This line of cases, which dates to Anderson v. Creighton, has thus shifted the focus away from the injuries the plaintiff has suffered and toward the specific means by which they were inflicted. Excessive force claims for QI purposes thus aren’t all similar; the question becomes not only exactly how the officer’s force was excessive, but the broader particulars of the context in which the (allegedly) excessive force was used. Thus, many qualified immunity cases have turned into a hunt for precedent—and whether there are cases with sufficiently similar facts in which an officer was held to have violated the Constitution.

Second, and related, the Court has made it much harder for those precedents to be generated. A court in a qualified immunity case has (at least) two different questions before it—whether the officer’s conduct was actually unconstitutional (the “legality” question); and whether the unconstitutionality was clearly established (the “liability” question). For a time (from 2001-09), the justices required federal courts to answer both questions—even in cases in which the answer to the liability question was “no” (that is, where the officer was going to escape liability whether or not his conduct was actually unconstitutional). The point of having courts also answer the legality question in those cases (what became known as the “Saucier sequence”) was so that, even if the officer in Case 1 prevailed, the law would be “clearly established” going forward. Future officers who committed similarly unconstitutional conduct from that point onwards would necessarily lose (and would also be deterred from committing that conduct).

But in 2009, the Court unanimously overruled Saucier in Pearson v. Callahan—holding that, in cases in which the law was not already “clearly established,” courts can, but don’t have to, answer the legality question. And in 2011, it went even further—with Justice Kagan’s majority opinion in Camreta v. Greene urging lower courts to “think hard, and then think hard again, before turning small cases into large ones” by doing so. As a result, the typical qualified immunity ruling today is one that holds that the law was not clearly established, and then . . . declines to establish it. Unless the law can be established in other contexts (e.g., through suits for injunctive relief or as defenses in criminal prosecutions), the result is that the law remains quite frozen—and government officers can commit the same constitutional violations over and over again without fear of liability until some case actually holds that their conduct was unconstitutional.3

Zorn v. Linton reached the Court against that backdrop. The case arose out of the arrest of a protestor who was part of a sit-in at the Vermont State Capitol in 2015. Although Shela Linton refused to cooperate with law enforcement officers who asked her to leave, she was only passively resisting when Sergeant Jacob Zorn used a “rear wristlock” to subdue her and remove her from the grounds, in a context in which there was no broader threat to the officer’s or the public’s safety that might have justified such force. Linton brought suit, claiming that Zorn had used excessive force in violation of the Fourth Amendment, and that the constitutional violation had causes both physical and psychological injuries.

The Second Circuit agreed, at least at the summary judgment stage. It held that one of its earlier rulings clearly established that the “gratuitous” use of a rear wristlock on a protester passively resisting arrest constitutes excessive force under the circumstances.

The Supreme Court summarily reversed. The heart of the unsigned majority opinion was its explanation for why that one earlier Second Circuit case did not actually clearly establish the relevant principle. Even assuming circuit precedent (versus Supreme Court precedent) can clearly establish the law,4 as the Court explained, “[r]easonable officials would not ‘interpret [that prior case] to establish’ that using a routine wristlock to move a resistant protester after warning her, without more, violates the Constitution.” In other words, because six (or five)5 justices disagreed with the Second Circuit’s interpretation of its own precedent, the law was not “clearly established.”

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. As she wrote,

At bottom, the majority’s analysis rests on the assumption that the law can be clearly established only by factually identical case[s] directly on point, despite the Court’s rejection of such a standard. Instead, it is “enough that governing law places ‘the constitutionality of the officer’s conduct beyond debate.’” Here, taking the facts in the light most favorable to Linton, it is “beyond debate” that Zorn’s use of pain compliance against the passively resisting Linton was excessive.

But Sotomayor also objected to the Court reaching that holding in the context of summary adjudication: “Relying on disputed facts, the Court today simply disagrees with how the Second Circuit applied a correctly stated legal standard (the requirement that law be established to ‘a high degree of specificity’ in the qualified immunity analysis) to this particular set of facts. That is a routine, and nowhere near extraordinary, dispute that did not require the Court’s intervention.”

Needless to say, I find it difficult to disagree with Sotomayor on either the substantive point or the procedural one. Indeed, it seems like the only way to truly defend the majority’s analysis is as demanding a factually identical case to establish that the unconstitutionality of the officer’s conduct is “clearly established.” Sotomayor is not only right that the Court has never held that (and has regularly insisted to the contrary), but that would be a pretty striking thing for the Court to hold in a case in which it did not receive full briefing or have oral argument.

As Justice Sotomayor has pointed out before, summary adjudication is a distorted lens through which to conduct any of this kind of analysis, because the briefing before the Court tends to be both skewed and one-sided. It’s skewed because cert. stage briefing is about why the Supreme Court should take up a case—not why the lower court was right or wrong. And it’s one-sided because, at the cert. stage, the Court tends not to hear from interested parties in support of the decision below; bottom-side cert.-stage amicus briefs are exceedingly rare, since the whole point of opposing certiorari is to make the case seem unworthy of the Court’s attention. A bunch of flashy friend-of-the-Court briefs would necessarily send the opposite message.

In a 2013 student piece in the Yale Law Journal Online, Alex Hemmer criticized the Supreme Court’s approach to summary adjudication in the early years of the Roberts Court as “distorting both its error-correcting and law-declaring functions.” To the former, Hemmer found reason to be concerned that the uptick in summary adjudication was encouraging the justices to “wade into fact-bound disagreements” in contexts in which the Court would historically have given lower courts the last word, and, per Sotomayor, doing so asymmetrically (one does not see, for example, summary reversals of circuit-level rulings granting qualified immunity to officers). To the latter, Hemmer argued that the Court’s summary rulings were “claiming to apply settled questions of law while in fact answering those questions anew without the benefit of slow, considered judgment.”

Zorn v. Linton suffers from both of those defects in spades. The justices spent their finite capital to resolve a fact-bound case at the summary judgment stage (in which the officer might very well have prevailed at trial); and they did so in a ruling that makes sense only if it stands for a significant narrowing of the circumstances in which circuit precedent can clearly establish the unconstitutionality of an officer’s (mis)conduct. And for those who might respond that the Court won’t treat Zorn as quite the same degree of precedent as it would a merits docket ruling, well, the unsigned majority opinion in Zorn itself cites four of the Court’s prior summary reversals in qualified immunity cases as precedents. Lower courts unquestionably have done (and will do) the same thing.

Ultimately, for all of the oxygen that the emergency docket has consumed in public and academic discussions (and criticisms) of the shadow docket, Zorn is a good reminder that the Court gets up to plenty of mischief elsewhere away from its merits docket—and that the benefits of plenary review, oral argument, and full-throated opinions aren’t limited to emergency applications.

SCOTUS Trivia:
How Many Votes for Summary Reversals?

Just like last week’s trivia focused on the (unwritten) voting threshold for granting certiorari before judgment (five votes), I wanted to use this week’s trivia to focus on the even-more-obscure threshold for summary adjudication. For a very long time, the suspicion among Court watchers was that it takes six votes to agree to summary adjudication—for the entirely mechanical reason that any four justices can vote for plenary review by granting certiorari. Summary adjudication, then, presumably requires no more than three justices voting for plenary review (and, so, six voting against).

Justice Alito appeared to confirm this understanding in his “Emergency Docket” speech at Notre Dame Law School in September 2021, and then Justice Breyer likewise endorsed it in an October 2021 interview with (my CNN colleague) Joan Biskupic—referring to it as “a custom.”

That said, there are still a handful of examples of summary adjudications in which there are four dissents. My best guess for how that’s happening is that there are two different questions—whether the case should be resolved summarily, and how it should be resolved. So it’s possible that fewer than four justices might want to grant plenary review, but that four justices disagree with the other five about what a summary adjudication looks like.

Of course, it’s impossible to say whether that’s true, or whether it’s just that sometimes the Court doesn’t follow the six-vote “custom”—because it isn’t written down anywhere. There’s a reason why, the best efforts of certain justices and the Court’s defenders to the contrary notwithstanding, calling it the shadow docket has stuck.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!

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This week’s bonus issue for paid subscribers will drop on Thursday. And we’ll be back with our regular content for everyone (no later than) next Monday. As ever, please stay safe out there—especially from rear wristlocks.

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Today’s bonus post was inspired by a colleague at an Inn of Court event last night, who reminded me of one of my favorite obscure (and arcane) nerdy procedural stories about the Supreme Court—the 1940s-era case in which Congress decided to give a specific Second Circuit panel the final say in a landmark antitrust case, at least once it became clear that the Supreme Court lacked a quorum to decide it.

The Second Circuit’s subsequent decision in that case—United States v. Aluminum Co. of America (Alcoa)—remains an important precedent in that field. But the historical precedent for Congress exercising such direct power over a specific case has largely receded from memory—even though the Court today retains the power to follow a similar procedure in cases in which it lacks a quorum, at least if it wants to do so. For structural reasons, that authority almost never comes up.

On one hand, it’s difficult to read too much of a precedent into Congress making some other court “supreme” in the Alcoa case—because that was a case in which the Court had itself already determined that it lacked the power to resolve the federal government’s appeal. On the other hand, it’s a reminder of two broader points I’ve touched on before—that Congress used to be a lot more directly involved in tweaking the Court’s docket where necessary; and that Congress also used to mandate that the Court take particular actions, versus its more modern pattern of giving the justices a ton of power, but almost complete discretion over when and how to exercise it.

It’s not the most important thing you’ll read this week—or even today. But it’s a telling and colorful moment from the Court’s history with at least some contemporary ramifications. (And I can’t make every post about current events!)

For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Court (including the Court’s deeply exasperating dispositions of two different qualified immunity appeals earlier this week). For those who are, please read on.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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Today’s “Long Read” uses the Court’s grants of certiorari “before judgment” last Monday in the Haiti and Syria TPS cases (which were the focus of last week’s newsletter) as a foil for asking whether the Court is granting certiorari before judgment too often. Historically, the Court used this procedural device, which, unlike an “ordinary” cert. petition, allows the justices to leapfrog federal courts of appeals in cases of both exceptional importance and urgency, once in a blue moon; as the chart below reflects, between the last major reforms to the Court’s jurisdiction in June 1988 and February 2019, the Court granted cert. before judgment a total of three times—i.e., roughly once a decade. Last Monday’s grants, in contrast, were the 25th and 26th since February 2019—and the fourth and fifth of this term, alone. That’s a massive increase for an extraordinary power the exercise of which, as then-Justice Rehnquist put it in 1976, has historically been “an extremely rare occurrence.”

As last week’s post suggested, if the alternative to certiorari before judgment is a rushed, unexplained ruling on an emergency application after (at best) truncated briefing, it should be obvious why the plenary (if accelerated) merits review provided by certiorari before judgment is almost always going to be “better.” But there are also very real risks inherent in the Court coming to view cert. before judgment as a “compromise” to resolving high-profile disputes through the emergency docket—risks that have already manifested in real cases with real effects, and risks that it might behoove the justices to carefully consider sooner, rather than later.

More on that below. But first, the (other) news.

On the Docket

The Merits Docket

The only merits docket news last week was the single ruling the Court handed down on Friday—Justice Kagan’s opinion for a unanimous Court in Olivier v. City of Brandon. In a nutshell, the Court held that a plaintiff can bring a prospective challenge to a local or state law he or she believes is unconstitutional even if they have already been convicted of violating it. The Court thus distinguished the (much-maligned) “favorable termination” rule of Heck v. Humphrey,1 which the district court and a Fifth Circuit panel had concluded provided a bar to a Mississippi street preacher’s First Amendment suit (the Fifth Circuit denied rehearing en banc, 9-8).

The Emergency Docket

As noted above, on Monday, the Court took the Trump administration’s two applications for emergency relief in the TPS cases, treated them as petitions for certiorari before judgment, and granted them—setting an expedited briefing schedule that would allow the (now-consolidated) cases to be argued during the last week of April (and, presumably, decided by the end of June). Importantly, the Court did not also grant the Trump administration’s stay requests; it “deferred” them pending at least the April argument.2 Thus, the lower-court rulings in both cases (which had blocked Secretary Noem’s efforts to rescind TPS for Haiti and Syria, respectively) remain in place, at least for now. Although I had suggested in last week’s newsletter that this was the exact right outcome (granting cert. before judgment and not granting the stays), I’ll confess to being a bit surprised not only that the Court did the right thing, but that no one publicly dissented. More on that dynamic below.

The only other non-housekeeping order out of the full Court last week was Monday’s denial of a stay of execution (over no public dissents) to Florida death-row inmate Michael King. King was executed Tuesday evening.

The Week Ahead

We expect a regular Order List this morning at 9:30 ET, followed by the beginning of the “March” argument session at 10:00, with argument in a major dispute over whether federal law (simply by setting an “Election Day”) bars states from accepting mail-in ballots that are postmarked on or before Election Day, but received a short time thereafter. And the “March” session will be bookended next Wednesday (April 1), by the much-anticipated oral argument in the birthright citizenship case.

The Court has not yet identified the next day on which it will hand down rulings in argued cases. But with the justices already set to take the bench Monday through Wednesday both this week and next, it would be easy for the Court to add one of those as a hand-down day without too much effort. After next Wednesday, the next currently scheduled public session is Friday, April 17.

Beyond this action on the merits docket, I’m not aware of any pending emergency applications in which we expect full Court action this week.

Miscellaneous

On Thursday afternoon, the Court held its Bar Memorial for Justice Sandra Day O’Connor, who passed away in December 2023.3 As the Court’s website explains:

Since 1822, the Supreme Court has memorialized Justices who have died with a meeting of the Supreme Court’s Bar, followed by a Special Sitting of the Court. The Bar Meeting features a series of tributes to the late Justice and concludes with the adoption of resolutions in memory and appreciation of the Justice’s life, work, and service. The resolutions adopted by the Bar are then presented to the Court in a formal, ceremonial Courtroom presentation.

I didn’t get to watch the proceedings live (although one might note the remarkable revelation that the Court does have the capacity to provide live, streaming video!), but the archived audio reflects an understandable amount of nostalgia for a justice who not only had a remarkable career but who was also widely respected by colleagues to both sides of the ideological spectrum. When O’Connor announced her retirement from the Court in August 2005, Justice Scalia, with whom she had so often sparred, sent her a note in which he wrote that she had been “the forger of the social bond that has kept the Court together.” He wondered, “who will take that role when you are gone?” Two decades later, that remains an open question.

Finally, and speaking of video, I wanted to flag a rare video-recorded appearance by Chief Justice Roberts in Houston, where he was in dialogue with Judge Lee Rosenthal from the Southern District of Texas. What stood out to me (and, it seems, the entire Supreme Court press corps) about the conversation was Roberts’s response when asked about criticism of the justices. In his answer, Roberts noticeably went past limiting his answer to his colleagues on the Supreme Court to talk about the entire federal judiciary: “The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. Judges around the country work very hard to get it right. And if they don’t, their opinions are subject to criticism. But personally directed hostility is dangerous and it’s got to stop.” You might think it’s no coincidence that those remarks came one day after President Trump (whom Roberts did not name) referred to D.C. district court Chief Judge Jeb Boasberg as “wacky, nasty, crooked and totally out of control”; I couldn’t possibly comment.

The One First “Long Read”:
The Cert. Before Judgment Express Lane

Let’s start with the easy part: It is objectively undeniable that the Supreme Court is granting certiorari before judgment at a far higher clip than it ever had before 2019, especially compared to what had become the norm on the far side of the 1988 revisions to the Court’s jurisdiction.4 As the chart above suggests, some of those grants have been so the Court can conduct plenary review on the merits docket; some have been to bring companion cases to the Court alongside cases that reached the Court through ordinary means (which is what happened, for instance, in the tariffs cases); and some have been to take various (previously unprecedented) procedural steps, especially during the COVID pandemic. (Don’t get me started about Higgs.)

Everyone will have their own suspicions about what caused this uptick. The obvious culprits, in my view, are the massive expansion of the emergency docket combined with (and perhaps partly caused by) the subtle-but-significant shift in the Court’s composition in 2018, when Justice Kavanaugh replaced Justice Kennedy. Indeed, Justice Kavanaugh has made no bones about his willingness to regularly take cases in relatively premature procedural postures if the issues are, from his perspective, important enough—including by granting certiorari before judgment (as he explained quite directly in his concurring opinions last year in both Trump v. Illinois and Trump v. Boyle). There’s plenty of reason to believe that Justice Kennedy would have been far less likely to support certiorari before judgment in comparable contexts, and certainly not at this scale. And although “regular” cert. petitions take only four votes to grant, as noted in today’s trivia, it’s now fairly clear that cert. “before judgment” takes five—so it would’ve been hard to imagine similar upticks prior to 2018 without Kennedy’s support.

As for the role of the emergency docket in pushing the Court toward more grants of certiorari before judgment, one of the things that’s striking about the list of cases above is how many of the recent ones reached the Court first as emergency applications—where granting certiorari before judgment was, quite likely, some kind of compromise. For instance, in December 2023, the Court granted certiorari before judgment in the student loan cases rather than rule up or down on the Biden administration’s applications for emergency relief; as in the TPS cases, it “deferred” those applications pending the plenary review the Court conducted in Biden v. Nebraska and Department of Education v. Brown. None of the justices who ultimately dissented in Nebraska (who would’ve upheld the program) publicly objected to the December 2023 orders—which is at least circumstantial evidence that the acceleration of merits review alongside deferral of the emergency applications reflected some kind of behind-the-scenes deal.

Ditto the Court’s January 2024 intervention in the EMTALA/Idaho abortion cases—in which, in the same order, it granted certiorari before judgment and stays of the district court’s injunction, and no one (at least at the time) publicly dissented.5 I don’t think I’m speaking out of school to suggest that granting cert. before judgment in these cases was thus less about the exceptional importance of the case relative to historical examples and more about a transactional move by the justices—to accelerate the Court’s ability to fully resolve a contentious case that arrived via an emergency application by granting cert. before judgment either alongside or instead of emergency relief. Indeed, both Justice Kagan’s and Justice Jackson’s subsequent opinions in the EMTALA cases provide at least some hints that they were not fully onboard with granting the stays in January 2024—but acquiesced because of the accelerated merits review.

Without reference to those specific examples, Justice Kavanaugh, at least, has all-but admitted that this is what’s happening—writing the following in Labrador v. Poe ex rel. Poe in 2024:

Given the extraordinary significance of the question whether a consequential new law can be enforced during the several years while merits litigation is ongoing, the Court should use as many tools as feasible and appropriate to make the most informed and best decision. Sometimes that might mean taking more time (if available), ordering supplemental briefing, or inviting amicus briefs. In certain circumstances, moreover, the Court might benefit from oral argument or may even grant certiorari before judgment.

Especially in recent years, the Court has employed many of those tools to help the Court better decide important emergency applications. [citing examples.] And I believe that the Court should continue to be flexible in employing appropriate procedures so as to best decide important emergency applications.

The harder question is whether, insofar as this is what’s happening in the TPS cases (and/or why there have been so many grants of certiorari before judgment), it is ultimately a good trade-off for the Court. Of course, if the alternative is only “grant emergency relief in an unsigned, unexplained order and wait for the case to come back sometime later,” then it’s easy to see why cert. before judgment is better in almost every respect—especially if the Court is going to continue to resort to such impoverished procedures for (and provide such little explanation in) resolving emergency applications.

But it strikes me that there are also at least three costs to this fairly significant shift in the Court’s docket—costs that ought to at least be accounted for, even if one might conclude that they are ultimately outweighed by the benefits either in individual cases or across the entire field.

First, and most obviously, certiorari before judgment cuts off the very percolation of disputes in the lower courts that the justices have so often defended, and the lack of which was one of the concerns the conservative justices (and right-wing commentators) often leveled against “universal” injunctions. I’ve written before about all of the ways in which the Court’s frequent claim that it is “a Court of review, not first view” has been utterly belied by its behavior in recent years, but the flood of grants of certiorari before judgment is, by volume, the most significant dataset.

Leapfrogging the federal courts of appeals necessarily deprives the justices of a meaningful additional layer of review; an additional round of briefing and argument; and the opinion(s) of other appellate judges on questions that are, in so many of these cases, ones of first impression. To take just one especially visible example, in Biden v. Nebraska, at the point at which the Supreme Court took up the legal validity of President Biden’s student loan debt forgiveness program, the district court and the Eighth Circuit, between them, had said exactly one word about the merits (that word was “substantial,” which was the sum total of how the Eighth Circuit described the plaintiffs’ claims in granting a nationwide injunction pending appeal). Maybe more percolation and the creation of a record in the lower courts might’ve made clear just how little the states’ theory of Missouri’s standing was actually supported by the facts.

Second, and related to the lack of percolation, is the far-heightened risk of error from taking cases too quickly and on completely undeveloped records. Again, an example may help to illustrate the concern. Consider the Court’s handling of Moyle v. United States—the consolidated cases from 2024 about the conflict between Idaho’s abortion ban and the federal Emergency Medical Treatment and Labor Act (EMTALA). The district court had enjoined Idaho’s abortion ban insofar as it barred doctors from performing medically necessary abortions to stabilize emergent (but not immediately life-threatening) conditions, and the Court stayed that injunction in the same order in which it granted certiorari before judgment.

As I wrote back when the Court ultimately dismissed certiorari as improvidently granted (what’s known as a “DIG”) and vacated the stays, the separate opinion by Justice Barrett, which was joined by the Chief Justice and Justice Kavanaugh, suggested that the key justices had been under a material misimpression about the record, the factual representations made by the parties, and various other features of the cases, all of which would likely have been clearer had ordinary appellate review run its course. Nor was the Court’s belated DIG harmless; as Justice Kagan pointed out in her separate opinion, in the six months during which the Court’s stays had been in effect, countless doctors had been forced to arrange medical airlifts out of Idaho for pregnant woman for whom abortions were the safest way to stabilize an emergent medical condition—and for whom abortions would have been available under EMTALA (and the district court’s injunction) but for the Supreme Court’s intervention.

Third, the indirect and direct costs of a lack of percolation aside, there’s also the inevitability that holding certiorari before judgment out as an alternative to granting or denying a stay will alter the internal calculus respecting votes on emergency applications in a way that sharply reduces the costs (to the justices, anyway) of either move. Justices Kavanaugh and Barrett are both fond of arguing that the Court has no choice when it receives emergency applications; it must “grant or deny.” But that argument doesn’t actually explain why the Court’s impulse, in so many more cases these days than ever before, is to grant, not deny.

Put another way, in a world in which the Court was faithfully applying the standards for emergency relief (standards that, in my view, should produce far more denials of emergency applications), there wouldn’t be the same pressure to grant certiorari before judgment—because it wouldn’t in so many cases be an alternative to a grant of a stay. But holding cert. before judgment out as an “alternative” to an unsigned, unexplained intervention moves the baseline in ways that take the Court off the hook for its own misadventures with emergency applications (and for the very different standards that are supposed to apply to these different procedural moves). The Court’s bad behavior on stays shouldn’t create leverage for mainstreaming a practice that used to be “extremely rare.”

Again, I don’t think these costs necessarily outweigh the benefits in individual cases. That may be especially true in the TPS cases, where part of the justification for cert. before judgment wasn’t as an alternative to staying the district court’s rulings, but because of the significant uncertainty in the lower courts across a large number of cases other than the Haiti and Syria disputes. And yet, it’s worth closing by underscoring the source of that uncertainty, i.e., the Court’s own unsigned, unexplained grants of stays last May and October in the Venezuela TPS case—and confusion about whether the Court was expressing a view on the jurisdictional question, the substantive merits with respect to the Secretary’s legal authority, or the Venezuela-specific facts (to say nothing of confusion over the precedential force in other TPS cases of the Court’s unexplained interventions in the Venezuela dispute).

If the ultimate case for certiorari before judgment is that it makes it easier for the Court to more expeditiously clean up its own messes, maybe the real conversation should be about why the Court shouldn’t be creating those messes in the first place—and not why this is the best way to fix them.

SCOTUS Trivia:
How Many Votes for Cert. Before Judgment?

Even relatively casual Supreme Court-watchers likely know the “rule of four,” i.e., that it takes four justices to agree to grant certiorari and take up a discretionary appeal in an ordinary case (It isn’t actually a “rule,” but I digress.) But for quite some time (at least outside the Court), there was genuine confusion about the vote threshold for certiorari before judgment.

It turns out, at least based on an internal September 1985 memorandum by then-Justice Rehnquist in the Court’s consideration of Darden v. Wainwright, that the answer is “five votes,” and that the Court only conclusively settled on that answer in 1983—in the process of granting cert. before judgment in Barefoot v. Estelle, one of the most legally significant capital cases of the decade. As Rehnquist wrote:

In hashing all of this out at the time of the discussion about the stay application in Barefoot, I think it was agreed by all of us that past practice required five votes to grant certiorari before judgment. I haven’t the slightest doubt that it should take a majority to grant certiorari before judgment, where our Rules provide that it will be granted “only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate processes and to require immediate settlement in this Court.”

Of course, this “rule of five” isn’t written down publicly, either.

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As folks will recall, back on March 2, the Court simultaneously granted a pair of pretty important emergency applications—in Mirabelli v. Bonta and Malliotakis v. Williams. I wrote about both of them initially, and came back to Malliotakis on March 5. But there’s one more point that I’ve been meaning to make, especially about Mirabelli, and that seems worth writing down before these decisions get stale: The continuing efforts of some of the justices (and their defenders outside the Court) to claim to be responding to criticisms of the Court’s behavior in these cases without either (1) identifying the criticisms; or (2) meaningfully addressing the critiques.

In Mirabelli especially, Justice Barrett’s concurrence, joined in full by the Chief Justice and Justice Kavanaugh, devotes an entire paragraph to explaining why the Court, in that one particular case, chose to write a majority opinion—an unambiguous response both to Justice Kagan’s dissent and to those who have been critical of the Court for not explaining itself. But as I explain in more detail below the fold, the defense is remarkably superficial—and neither correctly identifies nor engages with any of the more visible critiques of the Court’s unwillingness to write previously (or even in its contemporaneous ruling in Malliotakis).

One can say the same thing about the most concerted effort to defend the two March 2 rulings—my Georgetown colleague Stephanie Barclay’s March 6 SCOTUSblog post, titled “The Emergency Docket’s Critics Have it Backwards.” Other than the dissenters and a stray citation to a New York Times article, Barclay doesn’t identify the critics to whom she is supposedly responding, and her summary of their criticisms (and why she finds them unavailing) rests on some rather superficial—and, in some cases, flatly incorrect—claims about the Court’s (and the justices’) prior behavior.

We’re all better off when folks are engaging with these arguments rather than ignoring them altogether. But this isn’t meaningful engagement; it’s shadowboxing. If the Court and its defenders want to attempt to persuade those who aren’t already onboard that the justices’ behavior in these cases is all fine and dandy, a good place to start would be responding to the critics directly and persuasively—rather than caricaturing their arguments and knocking down strawmen.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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I wanted to use today’s “Long Read” to bring folks up to speed on the series of ongoing cases involving efforts by the Department of Homeland Security to revoke “Temporary Protected Status” (TPS) on a country-by-country basis for hundreds of thousands of immigrants from Haiti, Syria, Venezuela, and elsewhere—two of which have reached the Supreme Court through the Trump administration’s 33rd and 34th emergency applications. As I explain below, the TPS cases are critically important not just because they are the epitome of the rank cruelty (and, frankly, racism) behind so much of the Trump administration’s approach to immigration, or because what the Supreme Court does with them could immediately affect hundreds of thousands of people, but because they are also a referendum on the Supreme Court’s own work—especially the precedential force and effects (or lack thereof) of its two (unexplained) earlier grants of emergency relief in another TPS case, National TPS Alliance v. Noem, last May and October.

Indeed, it seems likely that the Court will (and, maybe even should) take the Trump administration up on its invitation to grant certiorari before judgment in one or both of the cases provoking the pending applications—so it can conclusively resolve these overlapping but distinct disputes after full-throated, plenary review. But whether that comes with or without stays that would allow the government to subject hundreds of thousands of immigrants to immediate arrest, detention, and deportation is itself a huge question—not just for those who would be directly affected, but for how the justices are thinking about the internal and external consequences of their earlier, unexplained orders in different cases.

More on all of this below. But first, the (other) news.

On the Docket

The Merits Docket

It was a relatively quiet week on the merits docket. The justices granted certiorari in one new case in last Monday’s regular Order List—a petition from the Solicitor General in a technical but significant case about the interaction between the Administrative Procedure Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act with regard to the Air Force’s attempt to dispose of hazardous munitions by openly burning them on a beach in Guam. Justice Gorsuch also dissented from the denial of certiorari in Burnett v. United States—a case about whether, when a violation of a prisoner’s supervised release conditions leads to additional prison time that exceeds the statutory maxiumum for the original offense, any factual dispute relating to that violation must be resolved by a jury (beyond a reasonable doubt), or merely by a judge (under a preponderance of the evidence standard). The Third Circuit had held the latter, and Justice Gorsuch tells a persuasive story of why that seems inconsistent with the Court’s Sixth Amendment jurisprudence after and in light of Apprendi v. New Jersey. (Indeed, as regular readers of this newsletter will know, I think Justice Gorsuch is often very right about the Sixth Amendment.)

The Emergency Docket

It was also a quiet week on the emergency docket; the only full Court ruling came on Wednesday, when, over no public dissents, the Court denied a stay of execution to Texas death-row prisoner Cedric Ricks. Ricks was executed later Wednesday night.

Wednesday also saw the docketing of the Trump administration’s emergency application in the Haiti TPS case (Trump v. Miot), about which much more below. Although the Court initially noted that Chief Justice Roberts had called for a response by next Monday (March 23) at noon ET, it quickly (as in, three minutes later) changed that to today at noon—almost certainly reflecting an internal miscommunication, not a change of heart. But that especially quick turnaround certainly may augur a desire on the Chief Justice’s part to do something on both the Haiti TPS application and the fully briefed application in the Syria TPS case sometime this week.

The Week Ahead

Speaking of this week, we don’t expect a regular Order List today (as there was no Conference last week). But in addition to a decent chance at some movement in the Syria and Haiti TPS cases, we know for sure that the Court is taking the bench this Friday (March 20), and is expected to hand down one or more rulings in argued cases. The only cases left from October are the Louisiana redistricting cases (for which I still think it’s too early) and the Colorado conversion therapy case (for which it may not be).

Miscellaneous

On the miscellaneous front, I wanted to flag a fascinating (and, in my view, long-overdue) development from last week—when the Judicial Conference formally approved a proposal to create the “Supreme Court Advocacy Project,” something of a hub of Supreme Court experts and litigation resources to work with public defenders representing criminal defendants in cases before the Court, with an eye toward leveling the playing field between the Department of Justice and criminal defendants in cases before the Court. Ashley Robertson, currently an Assistant to the Solicitor General (and a fantastic lawyer) will be the project’s first director. I’ve written before, in multiple contexts, about the inequities baked into so much of the litigation before the Court. This isn’t a cure-all, but it’s a welcome step.

Finally, on a far smaller level, I wanted to flag (especially for D.C.-area readers) an awesome event this Thursday night at Gonzaga: The 39th Annual “Home Court” charity basketball game between the Georgetown and George Washington law schools. In addition to the main event (the student game, which tips at 6:30 p.m.), there’s also a faculty game at halftime—in which I may or may not be playing (as my high school basketball coach liked to say, “you can’t teach height”). All ticket sales and auction proceeds go to the Washington Legal Clinic for the Homeless.

The One First “Long Read”: TPS Reports

“Temporary protected status,” known in shorthand as “TPS,” is exactly what it sounds like: It is a limited-duration authorization from the federal government for non-citizens from specific countries who might not otherwise have a legal basis for remaining in the United States to not just do so, but to work legally and access certain other benefits while holding TPS. Under a statute enacted in 1990 (a statute designed to reduce the President’s discretion to grant or deny protected status on spur-of-the-moment whims), Congress has authorized the Secretary of Homeland Security to designate countries that are eligible for TPS if she makes certain findings about the conditions there—many of which have to do with whether there are man-made or natural conditions that would make it unsafe for nationals of that country to return. And although the statutes give broad discretion to the Secretary to decide whether to designate a country for such humanitarian relief initially, they are far more rigid in the procedures the Secretary must follow when deciding whether to extend or terminate an existing designation—especially because of the reliance interests that such a designation will often have created.

Once a country is designated for TPS, the statute requires DHS to make individualized determinations about applicants’ eligibility. Applicants must show they have “been continuously physically present in the United States since the effective date of the most recent designation,” and they are ineligible for TPS if they have been “convicted of any felony or 2 or more misdemeanors” or could reasonably be regarded as a danger to the security of the United States. (In other words, TPS is something one applies for once their country of origin has been designated; it isn’t automatic.)

Thanks to the first requirement, the government isn’t limited to extending existing designations (which extends the status of those who have already received TPS under a prior designation); sometimes, it also re-designates countries—to restart the effective date clock (so that folks who arrived after the earlier designation can also apply for TPS). And thanks to the second requirement, the folks we’re talking about with regard to TPS are those who are not by any definition “the worst of the worst,” but are rather individuals who have not been convicted of serious offenses or otherwise pose any threat to their community.

According to the Congressional Research Service, as of this time last year, 17 different countries were covered by TPS designations, covering nearly 1.3 million holders (again, this is the number of individuals with TPS—not the number of nationals from those countries theoretically eligible for it). And then the Trump administration started pulling those back—not just by revoking designations (so folks could no longer apply for TPS), but in several cases, by purporting to vacate existing designations—with no notice to existing TPS holders. Countless non-citizens in this latter category went overnight from being legally allowed to reside and work in the United States to being subject to immediate arrest detention (including, in many cases, without bond), and removal.

And rather than provide persuasive explanations for why the negative country conditions that had justified TPS for those countries had abated, the government’s primary argument all along has been that Secretary Noem’s determinations are not subject to any judicial review—because of a statute that bars review of “any determination” of the Secretary with respect to designation, termination, or extension of TPS (critically, the statute says nothing about vacatur of TPS, and it sure seems to contemplate judicial review of other features of the TPS program).

The National TPS Alliance Case

Not surprisingly, those moves provoked immediate litigation. The first major case involved Venezuela. The National TPS Alliance, whose members include over 84,000 Venezuelan TPS holders, brought suit in federal district court in California, claiming that Secretary Noem had violated the Administrative Procedure Act both by vacating the Biden administration’s January 2025 extension of TPS for Venezuela and by terminating its January 2023 designation. The plaintiffs also claimed that her actions reflected unconstitutional discrimination against Venezuelans in violation of the Fifth Amendment’s Due Process Clause.

Last March, a district court held in a 78-page opinion that it had jurisdiction; that the plaintiffs had plausibly alleged that the Secretary’s actions were unlawful; and that the balance of the equities supported a preliminary injunction. The Ninth Circuit denied a stay. But on May 19, the Supreme Court, with no explanation, stayed the district court’s injunction—clearing the way for the administration to act against those Venezuelan nationals whose only basis for remaining in the United States was a prior grant of TPS.

The National TPS Alliance litigation didn’t stop with the Supreme Court’s stay. On September 5, the district court granted partial summary judgment to the plaintiffs—and set aside both the Secretary’s vacatur and termination of Venezuela’s TPS designation, and her partial vacatur of Haiti’s TPS designation (which was also part of the case). The Ninth Circuit again denied a stay. And the Supreme Court again granted a stay—once more, with no substantive analysis. All the Court wrote in October was that, “Although the posture of the case has changed, the parties’ legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.” And whereas only Justice Jackson had publicly dissented from the May order, all three Democratic appointees publicly dissented from the October stay—with Justice Jackson filing a solo opinion in support.

On January 28 of this year, a unanimous panel of the Ninth Circuit affirmed the district court’s grant of summary judgment. And just last Wednesday, the full Ninth Circuit denied rehearing en banc—with Judge Wardlaw (who had written the prior panel opinions) explaining on the panel’s behalf, quite persuasively (in my view), (1) why the courts have jurisdiction at least with respect to the vacatur of TPS; (2) why such vacatur was unlawful; and (3) why neither of the Supreme Court’s prior intervention necessarily resolved either of the first two points. Indeed, if you read exactly one opinion from these cases (I’m going to suggest that you read two), I’d start with the seven-page concurrence Judge Wardlaw filed last week.

The Dahlia Doe Case

While the National TPS Alliance (or “NTPSA”) litigation was proceeding apace, a separate suit was brought in federal district court in Manhattan seeking to block Secretary Noem’s actions to revoke and vacate TPS for Syria (for which there are roughly 6,100 current TPS holders). In that case (Dahlia Doe v. Noem), the district court agreed that Secretary Noem acted unlawfully and acted under the APA to postpone the effective date of her actions. The government appealed to the Second Circuit, and sought a stay pending appeal. But for messy procedural reasons, the stay took some time to resolve. On February 17, the court of appeals refused to issue a stay. It first explained why it didn’t think the Supreme Court’s stays in NTPSA required a stay in the Syria case. And on the merits, it held that the TPS statute “does not bar judicial review of the Secretary’s compliance with that statute’s procedural requirements.” It also explained why the government’s irreparable harm arguments were especially unpersuasive.

The Justice Department then sought emergency relief directly from the Supreme Court, arguing that the lower courts did indeed lack jurisdiction to provide any relief—and that, in any event, Secretary Noem hadn’t violated the APA. It also urged the Court to grant certiorari before judgment—to take up the merits of the district court’s postponement ruling before the Second Circuit.

The Miot Case

The third major case is, in some respects, the ugliest of all three. Miot v. Trump is a challenge to Secretary Noem’s termination of TPS for Haiti—a move that affects more than 350,000 individuals in the United States. I’ve previously flagged Judge Reyes’s 83-page ruling in the district court, which is the second opinion in these cases that I’d encourage folks to read (at the very least, the four-page introduction will give you a capsule summary). It walks through, in some detail, why the government’s jurisdictional arguments aren’t persuasive; why the government’s actions sure do seem to violate the APA; and, perhaps most significantly, the mountain of evidence that these actions are being taken out of animus against particular immigrants based upon their national origin—and not for any other reason. As Judge Reyes noted:

President Trump has referred to Haiti as a “shithole country,” suggested Haitians “probably have AIDS,” and complained that Haitian immigration is “like a death wish for our country.” He has also promoted the false conspiracy theory that Haitian immigrants were “eating the pets of the people” in Springfield, Ohio. Even after that (ridiculous) claim was debunked, he claimed they were eating “other things too that they’re not supposed tobe.” About two weeks after the Termination, he again described Haiti as a “filthy, dirty, [and] disgusting” “shithole country.” He stated: “I have also announced a permanent pause on Third World migration, including from hellholes like Afghanistan, Haiti, Somalia and many other countries.” Then continued, “Why is it we only take people from shithole countries, right? Why cannot we have some people from Norway, Sweden, just a few, let us have a few, from Denmark.” It is not a coincidence that Haiti’s population is ninety-five percent black while Norway’s is over ninety percent white.

10 days ago, a divided D.C. Circuit panel denied the government’s application for a stay—with Judges Pan and Garcia explaining in some detail why the government couldn’t meet the requirements for emergency relief; why the TPS jurisdiction-stripping statute doesn’t apply to all challenges to the government’s behavior vis-a-vis TPS; and why the equities in the other direction strongly cut against immediately subjecting more than 350,000 Haitians to arrest, deportation, and removal. The government then asked the Supreme Court for a stay in that case, as well (with the plaintiffs’ response due today)—which is how we got to where we are. (The DOJ application, rather remarkably, claims President Trump’s comments “raise no plausible inference of animus” but instead merely reflect “President Trump advocating for policies that curb immigration and decrease crime.”)

The Issues Before the Supreme Court

The first thing to say about these three cases is that they’re not alone. There has been separate litigation challenging the government’s TPS revocations for Afghanistan, Cameroon, Ethiopia, Honduras, Myanmar, Nepal, Nicaragua, and South Sudan (and I may be missing some). And even these cases aren’t all in the same procedural posture; some lower courts have purported to enjoin Secretary Noem’s revocations; others have postponed the effective date(s) of her actions; etc. So there are case-specific variations that I can’t possibly account for even in a 3,998-word newsletter post.

That said, it still seems abundantly obvious to me that the Supreme Court ought to step in and resolve at least three different questions here:

1. Whether and to what extent federal courts retain jurisdiction to review the Secretary’s compliance with the TPS statute’s procedural requirements and/or her claim that the statute authorizes vacatur in addition to revocation;

2. Whether, on the merits, the Secretary’s actions in any/all of these cases violated the APA; and

3. Whether, in any/all of these cases, the Secretary’s (and the President’s) clear and transparent animus against immigrants of these national origins can and should factor into the lawfulness of the government’s actions.

There is, of course, a fourth question lingering in these two applications—which is the government’s repeated (if not hyperbolic) claim that lower courts in these cases are all-but defying the two earlier (and completely unexplained) Supreme Court stays in National TPS Alliance. Given the detailed explanations from the Second and D.C. Circuits as to why those stays did not require stays in these cases (and from the Ninth Circuit about why those stays didn’t necessarily preclude further relief even in National TPS Alliance), it would be deeply problematic for the Court to endorse that reasoning—just as, in my view, it would be problematic for the Court to grant either or both of the applications for stays in Dahlia Doe and Miot—with or without (but especially without) an explanation as to why these cases warrant the same interventions.

There’s a longer conversation to be had about how much the President’s (and Secretary’s) clear animus can and should factor into these kinds of cases. But all of that just seems like further reason for the Court to try to do something new when it rules on these applications—to tread carefully, rather than reflexively letting the Trump administration do whatever it wants. We’ll find out soon enough.

SCOTUS Trivia: Four-Justice Majority Opinions

I was reminded last week of the unusual but not unheard-of scenario in which the Supreme Court is sitting with seven (or even six) justices, and can therefore hand down a “majority” opinion with fewer than five justices signing on. (Given that a quorum is six justices, it’s not possible to have a ruling from five or fewer justices—although the Court does sometimes take the bench with fewer than six justices, which … shouldn’t be a thing.)

All of this is to say that there is a small but non-zero category of “four-justice majority opinions.” The most recent one of which I’m aware is Justice Kennedy’s opinion for a 4-2 majority in Ziglar v. Abbasi—an important (and problematic) post-9/11 Bivens case from 2017.1 And I’d argue that the most well-known four-justice majority opinion is the relevant passage of Justice Stone’s opinion for the Court in Carolene Products—including famous footnote 4.2 There was also a flurry of such rulings during the October 1971 Term—when the Court sat with seven justices for the first three months of the session before Justices Powell and Rehnquist joined the bench in January 1972.

Although no one disputes that the Court can hand down four-justice majority opinion, there are two interesting (and mostly open) questions about the rulings in such cases. The first is the suggestion, first made by Chief Justice Marshall in 1834, that, “except in cases of absolute necessity,” the Court should not decide a constitutional question unless there is a majority “of the whole court,” and should instead hold over such questions for re-argument before a fully constituted bench. What constitutes a “case[] of absolute necessity” is, of course, a matter of perspective. One possible distinction is between a Court that’s short-handed due to absences or soon-to-be-filled vacancies (where the short-handedness can be resolved by waiting/holding the case over) and one that’s short-handed due to never-to-go-away recusals.

The second is the related idea that four-justice majority opinions should carry relatively less precedential weight than majority opinions that speak for five or more justices (Justice Scalia wielded this argument, for instance, in criticizing Justice Sotomayor for relying upon Carolene Products.) Professor Jonathan Remy Nash at Emory Law has a (typically) brilliant 2009 article exploring the debate over the relationship between the quorum rule and precedential weight—and noting that the Court itself has been … inconsistent … in how it has handled this question.

Especially because four-justice majority opinions are few and far between these days, very little of consequence turns on these questions (versus in the early 1970s, when, as Nash notes, the precedential force of the 4-3 majority opinion in Fuentes v. Shevin provoked quite the contretemps). But there’s still a universe of interesting issues surrounding how the Court does and should operate when it’s short-handed—especially when it’s doubly or triply short-handed—whether in individual cases or for meaningful periods of time.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!

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For this week’s bonus issue, I wanted to take a moment to write out a more complete (and hopefully coherent) response to a question that I’ve received at several events over the last few weeks: what actually goes into putting the newsletter together—including identifying topics, finding time to write, and actually writing and producing what you receive in your inboxes (at least) twice a week?

The short answer is that there’s no short answer. Much though I might wish (and you might prefer) that the newsletter was a well-oiled machine staffed by a large team of folks with plenty of time on their hands to carefully vet and research topics and edit the final product before it goes out into the world, the reality is a lot more … modest and chaotic. The bonus issues, in particular, tend to be written at the last minute on Wednesday afternoons (or early Thursday mornings)—either because I was waiting to see if the Supreme Court would make news; because I didn’t have time to tackle it any earlier; or, as is true of today’s bonus issue, both! (I’m writing this one, in particular, while waiting for a delayed flight home to D.C. from Kansas City.)

I’ll get into all of this below the fold. And I’ll leave to you if these additional insights change your view of the enterprise—and, if so, whether for better or for worse. I’ll just say that, for all of the warts inherent in such a necessarily haphazard operation, I’m immensely proud of what we’ve built over the 3.5 years that we’ve been doing this—and I’m immensely grateful to all of you for supporting it, in whatever form that support has come. The newsletter has become a much more meaningful part of my work than I ever could have anticipated in November 2022—and if you’re reading this, you’re a big part of why.

For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our continuing coverage of the Supreme Court. For those who are, please read on.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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Even though the Supreme Court made plenty of news last week (which I wrote about both Monday night and in Thursday’s bonus issue, and may yet come back to later this week), I wanted to use today’s “Long Read” to provide some more context for a broader conversation that’s afoot respecting the United States’ ongoing military operations—indeed, its war—against Iran. One strain of commentary has, quite rightly, flagged the myriad ways in which the Trump administration’s behavior constitutes a flagrant breach of the U.N. Charter (which, as a treaty ratified by the Senate, is just as much a part of the “supreme law of the land” as any other statute or treaty); and is also a textbook violation of the separation of powers insofar as it is authorized neither by a statute nor by the President’s inherent constitutional authorities under Article II. A separate strain has suggested that these legal constraints are irrelevant because they are not judicially enforceable—that is, because it’s virtually impossible for anyone to walk into court and use these legal arguments to stop the U.S. operations. Still a third strain has tried to explain why the law matters even when it can’t be enforced in court—rightly (in my view, anyway) reasserting the principle that law should constrain government whether or not courts can punish the government for breaking it.

What I wanted to add to these points is a bit of context for why it would be so difficult for these legal constraints to be judicially enforced. And that context is the Supreme Court’s (not-so-well-known) role in Vietnam. The short version, which I expand upon a bit below, is that there were dozens of efforts to try to get the Supreme Court to rule on the legality of the war in Vietnam itself, and on countless subsidiary questions—especially separation-of-powers questions about the President’s power to use force in contexts increasingly far removed from what Congress had authorized in the August 1964 Gulf of Tonkin Resolution.

And although the Court decided plenty of cases related to the war in Vietnam, when it came to the legality of the war itself, the Court ducked the matter altogether—by repeatedly refusing to even take up appeals (or, in one extraordinary case, an original action) asking the Court to settle the separation-of-powers questions. Thus, as the federal courts of appeals (especially the Second and D.C. Circuits) eventually held that most of these disputes were not justiciable (whether because the plaintiffs lacked standing or because their claims presented “political questions”), the Supreme Court just … sat on its hands. Four different justices (led by Justice William O. Douglas) would dissent at one point or another from many of these procedural denials. But there were never four votes to take up a single one of those cases (or five to take up the original action). Vietnam came and went without any definitive judicial pronouncement as to its legality—or even the legality of things like President Nixon’s 1973 bombing of Cambodia.

The Court’s (unmistakbly willful) refusal to intervene has been interpreted, ever since, as an endorsement of the (in my view, flawed) conclusion that these kinds of disputes are best left to the other branches to resolve. As much as that judicial hesitation might make sense in a world with a moderately functioning Congress, we’re seeing, right in front of our eyes, the real—and steadily increasing—costs of such judicial abdication when Congress has abandoned any semblance of institutional responsibility.

More on all of this below. But first, the news.

On the Docket

The Merits Docket

The Court handed down two unanimous rulings in argued cases on Wednesday:

1. In Urias-Orellana v. Bondi, Justice Jackson sided with the government in a dispute over the specific standard that courts of appeals should apply to review claims of whether a given set of undisputed facts rises to the level of persecution for purposes of asylum claims. Specifically, the Court held that the question for the court of appeals is whether “substantial evidence” supports the agency’s determination respecting whether or not an asylum applicant was persecuted by the country from which they’re seeking asylum.

2. And in Galette v. New Jersey Transit Corporation, Justice Sotomayor held that New Jersey Transit is not an “arm of the state” for purposes of the Eleventh Amendment—and, thus, cannot avail itself of New Jersey’s sovereign immunity in suits for damages. I’ve suggested before that Justice Sotomayor has inherited Justice Ginsburg’s mantle as the Court’s fastest writer, and this certainly seems to bear that out; the decision was handed down just seven weeks after argument (the second-fastest ruling so far this term took 11 weeks).

Earlier in the week, the three Democratic appointees all dissented from the denial of certiorari in Johnson v. High Desert State Prison—a dispute over “whether federal law prohibits the poorest prisoners from splitting the $350 fee required to file a federal lawsuit when it allows everyone else to do so.” The (divided) Ninth Circuit panel ruling had held that the answer was “yes,” a holding that, as Justice Sotomayor’s dissent (joined in full by Justice Jackson) explained, was worthy of the Court’s review even if it was correct—but all the more so because it probably wasn’t.

Otherwise, the Court wrapped up the “February” argument calendar on Wednesday, and we don’t expect the justices to take the bench again until Friday, March 20.

The Emergency Docket

The biggest news out of the Court last week were the (bizarrely) simultaneous grants of emergency relief on Monday night in Mirabelli v. Bonta and Malliotakis v. Williams. I’ve already explained at some length why the ruling in Mirabelli was both premature and problematic in its application of the traditional standards for equitable relief; and why the ruling in Malliotakis appeared to rest on a mischaracterization of the record by Justice Alito that allowed him to claim that the Court had jurisdiction when … it didn’t. Later this week, I may have a bit more to say on the attempts to defend those rulings from folks more sympathetic to the Court than I am, but … there’s a lot going on.

The Court also denied emergency relief on Tuesday (over no public dissents) to Florida death-row inmate Billy Kearse. Kearse was executed later Tuesday night.

The Week Ahead

Other than a regular Order List at 9:30 ET this morning, there’s nothing on the Court’s formal calendar for the upcoming week. Briefing is complete on the Trump administration’s (33rd) emergency application seeking to revoke temporary protected status for Syrian nationals in the United States, so it’s possible a ruling on that could come this week. On Friday, a group of more than 175 former state and federal judges filed a remarkable amicus brief in support of the respondents (the plaintiffs challenging the revocation of TPS)—focusing on why the Supreme Court’s rulings on emergency applications, including its prior rulings respecting TPS for Venzuela, shouldn’t have precedential effects in other cases. It’s striking that it’s come to this, but, it’s come to this.

One other development of potential relevance to the Syria TPS case is Friday night’s denial, by a divided D.C. Circuit panel, of the Trump administration’s request to freeze a district-court ruling blocking its rescission of TPS for Haiti—and the panel majority’s (to me, deeply persuasive) explanation of why the justices’ earlier interventions in other TPS cases didn’t compel a stay here. The Haiti case may well factor into how the justices handle the Syria case—and whether they might take these cases up on the merits, rather than continuing to tackle such massively important immigration moves by the executive branch through the truncated process of emergency applications.1

The One First “Long Read”:
The Vietnam Court and the “Passive Virtues”

Toward the end of his majority opinion for the Court in Boumediene v. Bush (the 2008 Guantánamo habeas case), Justice Kennedy offered a curious reflection on judicial review of the government’s war powers.2 In his words, “[b]ecause our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.”

As a historical claim, Justice Kennedy’s rhetorical flourish was deeply flawed. Up until Vietnam, federal courts routinely reviewed a wide range of questions arising from military operations during wartime, including, among others: the legality of particular maritime captures during the “Quasi-War” with France; the validity of the naval blockade imposed by President Lincoln during the Civil War; the constitutionality of military commissions convened by President Roosevelt to try Nazi saboteurs during World War II; and, perhaps most famously, the propriety of President Truman’s seizure of steel mills during the Korean War. Indeed, as I’ve explained before, the most significant military power that Congress delegated to the President in the early years of the Republic—the power to use the military during domestic emergencies—was, in the most controversial cases, expressly conditioned on judicial review (and pre-authorization). These assertions of power were not just justiciable; judicial review was a prerequisite.

Instead, Justice Kennedy was presumably alluding to the array of decisions that began during the Vietnam War, in which federal courts relied upon a host of justiciability rules—especially Article III standing and the political question doctrine—to avoid settling inter-branch disputes over the constitutionality of particular uses of military force. (And disputes there were; although President Johnson relied heavily upon the Gulf of Tonkin Resolution to justify the dramatic ramping up of combat operations in Southeast Asia, U.S. activities quickly took on a scale and scope that far exceeded what Congress could ever have been said to have authorized in August 1964.)

As those questions percolated through the federal courts, between 1965 and 1974, the Supreme Court used every way imaginable to avoid deciding on the merits any fundamental questions about the legality or scope of the Vietnam War, even as public and academic debate on those questions intensified. As one academic commentator has written in a comprehensive survey of those rulings,

Avoiding decisions on the merits of justiciable Vietnam issues presented by litigants with requisite standing through cryptic silence would be an ignoble abdication of the Court’s constitutional responsibilities, whether or not a judgment on the merits would have sustained or invalidated the Government’s prosecution of the war. The Court had frequently declared its power and duty to adjudicate federal questions on the merits, but it withheld judgment on the Vietnam cases. The Court was willing to approve the war by silence but would neither confirm nor condemn that result by opinion for or against the Government. Although concealed by the privilege of discretionary review, the Court’s apparent failure of courage was inexcusable.

The lower federal courts followed suit in similarly Delphic decisions. In dozens of suits, federal judges relied on two different procedural barriers to justify not reaching the merits of a wide range of litigants’ challenges to the constitutionality of the war; the draft; and a host of other Vietnam-era measures. In one class of cases, these courts held that the plaintiffs lacked “standing”; they could not prove that the allegedly unlawful government action they sought to challenge injured or would injure them specifically. In another class of cases, courts relied on the “political question” doctrine, holding that the Constitution committed disputes over the scope of whatever authorization Congress had (or had not) provided for military force in Southeast Asia to the political branches, not to the courts.

To be sure, the Supreme Court during the same period heard various disputes related to the war, several of which are now part of our constitutional canon and historical consciousness. For example, in New York Times Co. v. United States (the Pentagon Papers case), the Court famously rejected the government’s effort to enjoin the New York Times and the Washington Post from printing the Pentagon Papers. In Cohen v. California, the Court threw out the conviction of an anti-war protestor who was prosecuted for wearing a “Fuck the Draft” jacket. In United States v. O’Brien, the Court upheld a federal law that made it a crime to burn a draft card. And in Clay v. United States, the Court threw out the conviction of Muhammad Ali for refusing to report for induction, holding the government failed to demonstrate that Ali’s application for conscientious objector status was properly denied.

Every time, however, that a litigant asked the Supreme Court to take up an appeal contesting the substance of U.S. military or paramilitary activities in Southeast Asia, or the means by which soldiers were conscripted to participate in those operations, the Court ducked and declined to review lower court decisions—virtually all of which had concluded that such disputes were not justiciable. For a time, the Supreme Court’s repeated avoidance provoked dissents from as many as three of the nine Justices, William O. Douglas foremost among them. Those dissents, however, had no visible effect on the Court’s majority, which only appeared to harden against intervention as the war dragged on. (This was also a period of remarkable turnover on the Court; between 1969 and 1972, four of the Court’s nine seats received new occupants—each of whom was appointed by President Nixon.)

The result was to radically ratchet up the bar litigants had to clear for persuading federal courts that they could review separation-of-powers questions arising out of exercises of military force—and not just individual rights questions—even as the war became ever more detached from even the thinnest reed of statutory support.

Nor did things change in the first years—or decades—after Vietnam. An especially illustrative case in point is Campbell v. Clinton, where three D.C. Circuit judges relied on a combination of Article III standing and the political question doctrine to avoid reaching the merits of a claim that nineteen members of Congress brought challenging the constitutionality of U.S. airstrikes over Kosovo. As Campbell illustrates, from the end of the Vietnam War onwards, courts faced with lawsuits challenging overseas military operations on separation of powers grounds have consistently relied on the same two doctrines—standing and the political question doctrine—to avoid reaching, let alone resolving, such thorny constitutional questions. The result has been not to sustain the President’s ability to use military force in circumstances in which neither a statute nor the Constitution authorizes it, but rather to leave the President’s power in such a case to be resolved only through the practicalities of the political process—not the formalities of litigation.

In one sense, the Court’s refusal to intervene in Vietnam powerfully reflected an idea that Professor Alex Bickel had first advanced in his 1961 Harvard Law Review Foreword, titled “The Passive Virtues.” Bickel’s thesis was that the Court could (and, in the long term, would) gain more power by not reflexively intervening in various high-profile disputes and/or handing down sweeping decisions, on the theory that the Court’s credibility would be burnished by the sense that the justices were carefully picking their battles and were participating in—rather than hijacking—a broader dialogue with the other branches of government about what the law ought to be.

Bickel was writing at least in part to defend the Court’s use of various procedural devices, including cert. denials, to sidestep hot-button issues. In his view, the Court had only so much capital to spend. And in a context in which Congress and the President were continuing to fight a series of smaller battles over how much war power Congress had truly delegated with respect to the goings-on in Southeast Asia, maybe the less the Supreme Court said, the better.

To be sure, Bickel’s thesis has been controversial since the day he wrote it. (The late Stanford professor Gerry Gunther once described Bickel’s essay as an “emphasis on principle as the highest Court duty, but only in a limited sphere of Court actions; the 100% insistence on principle, 20% of the time.”)

But a larger problem has emerged with Bickel’s thesis—one that’s powerfully mapped out in a brand-new paper that’s forthcoming in the Georgetown Law Journal (woot!), in which my friend and University of Michigan law professor Leah Litman writes about the “passive vices.” Litman’s thesis is that the Supreme Court’s behavior on emergency applications arising from the second Trump administration calls Bickel’s entire account into serious question—because of the extent to which, in our current political moment (especially the disappearance of an institutionally minded Congress), the Court’s passivity is necessarily (if not inevitably) enabling more lawlessness by the executive branch.

It’s well beyond the ambit of Litman’s paper, but it seems to me that the same can be said about the Court’s Vietnam-era passivity: In a context in which Congress had already ceded so much of its constitutional authority to the President, the Court’s refusal to clarify when the President had crossed the line (and, indeed, whether there was even a line for the President to cross) necessarily enabled more unilateral presidential warmaking. Of course, that warmaking could have been (and can be) halted at virtually any moment by a sufficiently motivated Congress. And, failing that, it can be halted come November (or, next January, anyway) by a sufficiently motivated electorate. But given the rich history of the Supreme Court inserting itself into the middle of some awfully significant questions about the legality of presidential actions undertaken ostensibly during “wartime” (and its willingness to insert itself into plenty of other highly “political” disputes), the Court’s turn toward passivity in the Vietnam cases looks, with each passing day, like far more of a vice for the separation of powers than a virtue.

SCOTUS Trivia: A Canonical Anniversary

Today marks the 62nd anniversary of the Supreme Court’s 1964 decision in New York Times Co. v. Sullivan—in which an effectively unanimous Court held that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

I’ll save for another day the richness of the background to Sullivan and the contemporaneous significance of the Court siding with the Times at such a critical juncture in the Civil Rights Era. But I largely agree with the Times’s own retrospective on the decision in an editorial marking the 50th anniversary back in 2014:

The ruling was revolutionary because the court for the first time rejected virtually any attempt to squelch criticism of public officials—even if false—as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher—capable of calling public officials instantly to account for their actions and also of ruining reputations with the click of a mouse.

Justice Thomas has regularly called for the Court to revisit (if not overrule) Sullivan, and has picked up, at least at some moments, the support of Justice Gorsuch. But for as much mischief as Sullivan allows, consider me one of those who thinks we’d be a lot worse off without it than we are with it.

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I wanted to follow up on the Court’s grants of emergency relief Monday night in the Malliotakis redistricting cases (and on my Monday night post about the decision) by taking a deeper dive into the jurisdictional issue the applications presented.1 I’ve written before about how the Supreme Court’s formal jurisdictional relationship with state courts differs in some pretty significant respects from its relationship with the lower federal courts. Here, those differences should have meant—as Justice Sotomayor’s dissent argued—that the Court lacked the power to intervene. By nevertheless granting the stays, the Malliotakis majority has necessarily set a precedent for litigants in state courts to seek emergency relief from the justices in circumstances in which it shouldn’t be (and has never previously been) available.

The majority, of course, did nothing to explain why it had jurisdiction; it didn’t say anything at all. But perhaps the most galling aspect of Monday night’s ruling is Justice Alito’s concurrence—which rests the Court’s jurisdiction on a remarkably deceptive (if not deliberately misleading) sleight-of-hand about the timing and sequencing of the state courts’ rulings. With the record properly clarified, the Court’s exercise of jurisdiction in Malliotakis notwithstanding the availability of further review from New York’s highest court is in direct conflict with a 2022 ruling; and, more fundamentally, risks throwing open the emergency docket floodgates to encompass a potentially limitless number of state-court rulings, as well.

For those who are not paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Supreme Court. For those who are, please read on.

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In Mirabelli, as Justice Kagan pointed out in her (understandably exasperated) dissent, the Court reached out to weigh in on a deeply fraught substantive constitutional question—even though there are potentially dozens of cases through which it could’ve taken up that question on plenary review and received the benefit of full briefing and oral argument; and even though the Ninth Circuit was already hustling to resolve California’s appeal of the district court’s ruling on the merits; and even though the justices in the majority seem to be endorsing the exact kind of “substantive due process” reasoning that they’ve consistently repudiated.

And in Malliotakis, the Court reached out to block a state trial court ruling before the state supreme court had even had a chance to rule on the matter—for what appears to be the first time … ever. And it did so in order to intervene in New York’s congressional elections, something the “Purcell principle” supposedly prevents federal courts from doing (at least, according to <checks notes> the same justices’ ruling in the Texas redistricting case three months ago).

We’re long past the point at which there are neutral legal principles that can be deployed to persuasively reconcile all of the Court’s behavior on emergency applications. The Court is intervening because it (thinks it) can, and because, for whatever reason, it doesn’t want to wait—in these cases, anyway—for the ordinary processes that would bring these issues to the Court in due course. To whatever extent such a “decide first, ask questions later” approach might ever make sense in a Court with the constitutional and statutory jurisdiction of the Supreme Court of the United States, it makes absolutely no sense when it’s applied selectively—let alone in ways that have a remarkable tendency of benefitting Republican elected officials and/or conservative-coded legal positions. Instead, it makes the Court at least look like what so many regularly accuse it of being: a font of partisan political power, and not much more. One might think that the Court would be at least somewhat interested in disabusing observers of that impression on the emergency docket as much as it seems to be on the merits docket, but then we get rulings like these.

What follows are my brief summaries of the issues in the two cases, what the Court decided, and the substance of the concurring and dissenting opinions filed in both cases—followed by some concluding thoughts on why, in my view, the only theme uniting these two disparate decisions is the majority’s selective impatience.

Ruling 1: Mirabelli v. Bonta

At issue in Mirabelli are a series of California state laws and regulations that the state has interpreted as not requiring schools to tell parents about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification (and to require schools to use children’s preferred names and pronouns regardless of their parents’ wishes). Two pairs of parents and a group of teachers challenged those policies, claiming violations of both the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. After certifying two separate subclasses (one of parents and one of teachers), the district court entered a permanent injunction against the policies, concluding that the challengers were likely to succeed on both sets of claims. The Ninth Circuit issued a stay of the ruling, explaining that it believed the district court’s injunction was both procedurally and substantively flawed.

In an unsigned, six(ish)-page majority opinion, the Supreme Court put the district court’s injunction back into effect—at least for the parent plaintiffs (it denied the stay for the teacher plaintiffs). To the Court’s (marginal) credit, not only did it write a majority opinion, but it identified the correct standard of review and then purported to apply the four traditional factors for such an equitable intervention (even this much has been too much to ask in many of the Court’s prior grants of emergency relief). In a nutshell, the Court explained that it thinks that both the Free Exercise Clause claim (for parents with religious objections) and the substantive due process claim (for all parents) are likely to succeed on the merits. But when it turned to the equities, well, the Court didn’t even attempt to analyze how the relief the parents are seeking might harm transgender students in California—or whether one set of harms might outweigh the other. All it had to offer was its own ipse dixit.2

Justice Barrett wrote a four-page concurrence joined in full by Chief Justice Roberts and Justice Kavanaugh, the crux of which is two distinct points: First, she attempted to defend the majority against the charge leveled by Justice Kagan’s dissent—that they’re being hypocrites about substantive due process. In Barrett’s words, “It does not follow from Dobbs that all our substantive due process cases conflict with [the Court’s modern test for new substantive due process rights], much less that stare decisis would counsel overruling any that do.” (Of course, that’s not actually responsive to the charge that these justices tend to be very hostile to substantive due process in general.)

Second, she also, curiously, attempted to explain to somebody (I have a suspicion…) the majority’s decision to actually write a majority opinion in this case—claiming that the Court wrote to explain how the Ninth Circuit misapplied Mahmoud v. Taylor and to respond to Justice Kagan’s dissent with respect to the implications of Dobbs for the Court’s substantive due process jurisprudence more generally. As you might notice, neither of these arguments do anything to explain why the Court wrote a majority opinion here but not in countless other grants of emergency relief in recent years in which … lower courts had misapplied the relevant precedent and the dissenters leveled a broad charge at the implications of the Court’s intervention. If the goal was to distinguish any of those cases, it might have helped if Justice Barrett had actually tried to distinguish them.

Justice Kagan’s dissent opens by referring to the majority opinion (quite correctly, in my view) as “tonally dismissive.” Kagan’s basic charge is that the Court is in a hurry in a context in which prudence is called for, and to enforce a right about which every member of the majority has previously expressed significant doubt. (Indeed, Kagan’s opinion outs Justice Gorsuch as being in the majority by citing him as one of the examples.) On the “hurrying” point, Kagan explains, correctly, that the applicants request for en banc rehearing of the Ninth Circuit’s stay ruling is still pending. As she put it:

Regular order counsels that, in this situation, the Ninth Circuit should go first. The lower court, that is, should decide whether to vacate the stay; and only then should this Court decide whether further action is needed. Cf. Supreme Court Rule 23.3 (Stay applications “shall set out with particularity why the relief sought is not available from any other court”). But the Court’s impatience cannot be contained for even that long. The Court jumps the line, pre-empting the Ninth Circuit’s normal (and notably reflective) en banc process. Why wait for appellate procedures to play out when the Court already knows what it wants?

Worse than that, as Kagan explained, the Court has any number of cases pending before it on the merits docket raising the same questions about parental rights in the context of transgender students who are only out about their gender identity at school. Given the Court’s reluctance to recognize rights grounded in substantive due process in other contexts, doing so through an emergency application “cannot but induce a strong sense of whiplash.” (She also has a pretty poignant footnote about how, in Skrmetti, the Court didn’t even grant certiorari on the substantive due process claim it endorsed in its brief opinion in this case.)3

Justice Barrett attempted to respond to Kagan’s claim of impatience by emphasizing the harm parents could face from the California policies at issue. But again, that might’ve been a bit more persuasive if the same justices (1) took those kinds of substantive due process harms remotely seriously in other contexts; or (2) explained why the harms to the children the policies are intended to prevent are no never mind. Alas.

Ruling 2: Malliotakis v. Williams

At least the Court wrote something in Mirabelli. As Justice Sotomayor opened her dissent in Malliotakis, “The Court’s 101-word unexplained order can be summarized in just 7: ‘Rules for thee, but not for me.’” In a nutshell, Malliotakis involves a classic “vote-dilution” challenge to a congressional district—an argument that Rep. Malliotakis’s House district, which included all of Staten Island and a small part of southwestern Brooklyn, was drawn in a way to reduce the voting power of Black and Latino New Yorkers.

After a four-day trial, the state trial court agreed, holding that the district was drawn in a way that violated the state constitution—and explaining that the case raised “an issue of first impression” because “New York courts have yet to determine the appropriate legal standard to evaluate a vote dilution claim” under the New York Constitution. The court thus ordered New York’s Independent Redistricting Commission to re-draw the district as a “crossover” district—one in which minority voters would have a meaningful chance to not just vote for, but elect, their preferred candidates.

As was their right, the defendants in that case, including Rep. Malliotakis (who had intervened), sought emergency relief from New York’s appellate courts—asking both the “Appellate Division” (the intermediate appellate court) and the “Court of Appeals” (the supreme court) to stay the trial court’s ruling. on February 11, the Court of Appeals transferred the request to the Appellate Division on the ground that the defendants had to seek relief there first. The next day, Malliotakis and other defendants filed a pair of applications in the U.S. Supreme Court before the Appellate Division even ruled. And although the Appellate Division has since denied their requests for a stay (we’ll come back to this timing in a moment), no one sought relief from the Court of Appeals.

As Mirabelli makes clear, the justices have gotten into the bad habit of granting emergency relief before applicants have fully exhausted the availability of such relief in the lower federal courts. But Malliotakis presents a bigger problem—the Supreme Court doesn’t even have jurisdiction to hear appeals from state courts until and unless the highest court in the state has ruled on the issue. As Justice Sotomayor pointed out in her dissent, “This procedural defect should be fatal. In every other case in which this Court has granted emergency relief from a state-court decision, the State’s highest court either denied it first or failed to act promptly on a request for it.”

So how did the Court have jurisdiction? The majority … didn’t say. Only Justice Alito wrote to explain the Court’s intervention, and the way he frames the procedural posture is disingenuous at best. In his words, “[t]he Appellate Division refused to issue a stay, and by order issued on February 11, the Court of Appeals sent the appeal filed in that court to the Appellate Division and dismissed applicants’ motions for a stay.” Thus, Alito claims, the applicants had “nowhere else to turn.” The only problem is that that’s just not true. As noted above, the applicants initially sought relief from both the Appellate Division and the Court of Appeals, and the Court of Appeals transferred the application because the Appellate Division hadn’t ruled yet. Once the Appellate Division ruled, the applicants could have gone back to the Court of Appeals; they just chose not to. That should have deprived the Supreme Court of jurisdiction. Except it didn’t. Whether accidentally or on purpose, Alito’s description of the facts eludes the critical point that the Appellate Division’s refusal to issue a stay (the first clause) came after what happened in the second clause.

And then there’s Justice Alito’s attempt to explain why Purcell didn’t preclude the Court’s intervention here, i.e., that “our stay, far from causing disruption or upsetting legitimate expectations, eliminates much of the uncertainty and confusion that would exist if the Independent Redistricting Commission proceeded to draw a new district that this Court would likely strike down if the cases reached us in time.” Of course, if Purcell doesn’t apply to orders “eliminat[ing] uncertainy and confusion,” well, then it’s been misapplied … a lot.

Alito closes by criticizing Sotomayor’s dissent, suggesting that it

demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order. That would provide a way of achieving what full review would not permit: the use of an unconstitutional district in the November election and the election of a Member of the House of Representatives whose entitlement to the office would be tainted. That is a prospect this Court should not countenance.

Even before getting to footnote 7 of Justice Sotomayor’s dissent, folks might have recalled the Supreme Court’s interventions in the Alabama and Louisiana redistricting cases in 2022—in which a 5-4 majority put back into effect House maps that lower courts had held to be unlawful in rulings that the Court would eventually affirm, meaning that Alabama, Louisiana, and a handful of other states used unlawful districts in the 2022 midterms (districts that helped to contribute to the Republicans’ razor-thin margin in the House between 2023 and 2025). Alito calls this a “prospect this Court should not countenance.” Except that Alito was one of the five justices who voted for that exact result when it favored Republicans. More than that, he joined in full Justice Kavanaugh’s concurring opinion in the Alabama cases, which explained that such intervention was demanded by (wait for it) Purcell.

Of course, it’s entirely possible that the Court is on the verge of holding in Callais that the kind of district the New York state court ordered the Commission to draw in response to a violation of the New York Constitution is itself a violation of the federal Constitution. Indeed, Alito’s opinion seems to be all-but-advertising that outcome. But that hasn’t happened yet. Given the jurisdictional obstacles to the Court’s intervention, why the rush here? All Alito can offer is chutzpah; the more obvious impact is to allow Rep. Malliotakis to run for re-election in her existing district, rather than one drawn to protect the rights of minority voters.

***

Although my critics may not notice, I spend a lot of time defending the Court, at least as an institution. But rulings like these certainly make it harder to do so. If the Court were consistently applying procedural and substantive principles with which I disagreed, that would be one thing. But it’s the inconsistency that, in my view, opens the Court to charges of more than just being wrong on the law.

That inconsistency is not just about which substantive principles the Court applies in which cases; it’s about how the Court acts—and when. Here, the grants of emergency relief seem to reflect impatience on the Republican appointees’ part with the ordinary flow of litigation, which would surely have brought these issues to the justices sooner rather than later.

Maybe one could defend “judicial impatience” as a virtue in the abstract. But the Court can’t (for volume reasons) and doesn’t (for … other … reasons) apply that impatience consistently. And if you’re going to intervene only when that impatience is getting in the way of results you want to reach now, and not in any other cases, well, that’s only going to exacerbate charges that the justices are simply doing what they want, when they want. Whatever else that is, what it ain’t is “law,” at least how I’ve always understood it.

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