Share

If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription if and when your circumstances permit:

Subscribe now

One of the quieter casualties of the Court’s just-completed term is the modern descendant of a 1789 statute that, for nearly half a century, was used to allow victims of torture and other grave human rights abuses to walk into a federal courthouse and ask for a remedy. In Cisco Systems, Inc. v. Doe I, a majority comprising all six Republican appointees effectively shut that door—and, as I’ll explain, it did so by overruling a unanimous 2004 precedent without ever fully acknowledging that that’s what it was doing, and through reasoning that says a lot more about this Court’s (lack of) regard for its own past decisions than it does about the relevant clause of section 9 of the Judiciary Act of 1789—known today as the Alien Tort Statute (“ATS”).

To that end, today’s “Long Read” traces how the ATS went from a “legal Lohengrin” to a human rights workhorse and back again; why Justice Barrett’s account of the statute in Cisco doesn’t hold together; and why one case the majority conspicuously ignored—the Abu Ghraib litigation out of the Fourth Circuit—shows just how much we all stand to lose when the Supreme Court closes the courthouse doors to these kinds of lawsuits.

More on that below. But first, the news.

On the Docket

The Supreme Court issued the first of its regular summer order lists last Monday—adding one case to the merits docket for the upcoming term, and denying a number of rehearing petitions (and re-filed applications). Those were the only full Court rulings to come down last week. Speaking of rehearing, although President Trump has publicly committed to seeking rehearing of the Supreme Court’s June 30 decision in the birthright citizenship case, the deadline for filing such a petition is today (technically, it was Saturday, but that bumps it to today). It’s President Trump, so you never know. But I’m not holding my breath.

The One First “Long Read”: The ATS, Then and Now

There are exactly 33 words in the Alien Tort Statute (as amended), and for most of the two centuries after Congress enacted it as part of the Judiciary Act of 1789, they received little attention. The statute gives the district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That was it. It doesn’t expressly provide a cause of action; it doesn’t list specific, covered wrongs; and there is next to no legislative history to help illuminate why Congress included it in the federal judiciary’s founding charter. Nor did history help; for nearly 200 years, the statute mostly sat on the shelf. Courts invoked it a handful of times, but nobody was quite sure what it was supposed to do.

The modern history of the statute starts with Filártiga v. Peña-Irala, in which a Paraguayan family found their son’s torturer living in Brooklyn and sued him under the ATS for his 1976 killing back home. In 1980, the Second Circuit held that the statute reached the claim—that deliberate torture by a state official violated the law of nations, and that federal courts were open “for adjudication of the rights already recognized by international law.” The court read the ATS not as manufacturing new rights but as providing a domestic forum for a wrong the world had already condemned, and it grounded that reading partly in foreign relations, reasoning that claims “fraught with implications for the nation as a whole” belonged in federal court rather than being left to fifty different state courts.

Filártiga set off a wave of human rights litigation—including significant rulings from at least three different federal courts of appeals (the Second, Ninth, and D.C. Circuits) in the 1980s and 1990s. It also led to an enormous and sustained debate among academics—who fought bitterly over the extent to which U.S. courts could (and should) provide remedies for violations of “customary international law,” i.e., international legal principles and norms that were not part of statutes or ratified treaties, and thus were not (at least obviously) the law of the land for purposes of the Constitution’s Supremacy Clause.

Even as that debate raged on, the Supreme Court didn’t weigh in for almost a quarter of a century. And when it finally did, in Sosa v. Alvarez-Machain, it landed on a compromise that would govern ATS litigation for the next two decades. Justice Souter, writing for the Court, agreed that the ATS is “strictly jurisdictional” and creates no causes of action on its own—but rejected the argument that this made the statute “stillborn.” The First Congress, the Court reasoned, understood that courts would recognize a modest set of common-law claims for violations of international law as well defined and universally accepted as the paradigms the drafters had in mind in 1789 (offenses against ambassadors, violations of safe conduct, and piracy—what the Court now calls the “Blackstone three”).

Going forward, Sosa held, courts could recognize new claims, but only for norms of comparable “definite content and acceptance among civilized nations,” and only with great caution. That was Sosa’s famous second step: narrowing the scope of ATS claims relative to the most extreme lower-court rulings, but leaving federal courthouse doors unmistakably open. Justice Scalia wanted those doors shut altogether, but he didn’t get five votes (or even four). Only Chief Justice Rehnquist and Justice Thomas took the narrowest view of the ATS in 2004.

The Court spent the next two decades narrowing that opening, but it kept declining to overrule Sosa itself. In its 2013 ruling in Kiobel v. Royal Dutch Petroleum, the Court initially granted certiorari to decide whether corporations could be proper defendants under the ATS, but then held, on re-argument, that the ATS wasn’t available in “foreign-cubed” cases—those in which foreign plaintiffs sued foreign defendants for conduct on foreign soil. Only if the claims “touch and concern” U.S. territory “with sufficient force to displace the presumption” against extraterritoriality would Sosa’s framework be available.

Then, in its 2021 decision in Nestlé USA, Inc. v. Doe, the Court held that “general corporate activity”—operational decisions made in U.S. boardrooms—was not enough domestic conduct to let former child laborers sue two American companies over forced labor on Ivorian cocoa farms. That was enough to decide the case, and tellingly, Justice Thomas’s effort to go further and hold that Sosa should be scrapped entirely, couldn’t hold a majority; Chief Justice Roberts and Justice Barrett pointedly declined to join it, with Justice Sotomayor noting separately that such an approach “would overrule Sosa ‘in all but name.’”

Then, on June 23, and without any attempt to reconcile their prior adherence to Sosa, the Chief Justice joined Justice Barrett’s opinion for a six-justice majority in all but relegating Sosa to the scrap heap. In Cisco, plaintiffs alleged that Cisco and two of its executives had helped the Chinese government build the “Golden Shield” surveillance system used to identify, detain, and torture Falun Gong practitioners, and they sued under both the ATS and the Torture Victim Protection Act. Justice Barrett, writing for herself, the Chief Justice, and Justices Thomas, Alito, Gorsuch, and Kavanaugh, held that federal courts “may not create new causes of action” under the ATS at all—including for aiding and abetting—and that the TVPA likewise does not reach those who aid and abet torture. The three Democratic appointees all dissented from the ATS holding, and Justice Sotomayor dissented from the TVPA holding.

Formally, Cisco doesn’t eviscerate the ATS. But it takes a huge bite out of it (and Sosa), by eliminating the power of courts to recognize new international-law claims that were not available in 1789. What’s left is what Scalia wanted in his Sosa concurrence and what Thomas pressed for in Nestlé: the ATS as a jurisdictional grant and nothing more, good for the three offenses Blackstone catalogued in 1789 and, well, that’s it. Justice Sotomayor called this what it is—a “sub silentio overruling of Sosa” that “marks yet another low point in this Court’s esteem for its precedents”—and she’s right. The whole significance of the compromise in Sosa was the Court leaving the door open for ATS suits for offenses other than the “Blackstone three.” By cabining the ATS to those three offenses and nothing more, Cisco renders Sosa a dead letter.

In many respects, reading the opinions in Cisco is like re-reading the opinions in Sosa. It’s the same debate about the relevance of the same sources and arguments to the interpretation of the same statute. And that’s what really bothers me: the majority never really explains why Sosa had to go. Sosa was unanimous on the point that courts retain some power to recognize international-law claims. It was 20 years old. Litigants, human rights advocates, and lower courts had built two decades of doctrine on top of it. Under any of the versions of stare decisis the current justices have professed to follow, that combination usually counts for something.

The Cisco majority engages with almost none of that. Its two stated reasons—that Sosa’s second step was “narrow at the outset,” and that judicially implied causes of action are disfavored today—are arguments about why Sosa was wrong (again, just read Scalia’s Sosa concurrence), not reasons why a wrong-but-entrenched precedent must now be abandoned. Those are different questions, and the Court has spent years insisting they are different questions. “We now think the 2004 Court got it wrong” is not a special justification; it is just disagreement, and disagreement with a prior Court has never been enough, by itself, to justify tossing out its ruling. Beyond its implications for human rights litigation in the United States (about which more in a moment), this is the most alarming part of Cisco: stare decisis really is, as the hosts of Strict Scrutiny so often put it, for suckers.

The other major move in Cisco is Justice Barrett’s suggestion that recognizing ATS claims carries an inherent risk to American foreign relations—that letting these suits proceed invites the courts to meddle in matters the Constitution assigns to the political branches. Especially given how Kiobel and Nestlé had already narrowed the ATS to minimize its impact in cases with foreign implications, that move seems underdefended at best—all the more so in light of a high-profile case that the Court didn’t even discuss: Al Shimari v. CACI Premier Technology.

Al Shimari is the Abu Ghraib case. Four Iraqi men, arrested and detained by the U.S. military in 2003 and later released without charge, alleged that interrogators working for CACI—a Virginia-based government contractor—conspired with soldiers to torture them. After 16 years and five trips to the Fourth Circuit, the case was pared down to two ATS claims, and in 2024 a jury found CACI liable for conspiracy to commit torture and cruel, inhuman, and degrading treatment, awarding the three remaining plaintiffs a total of $42 million. On March 12, 2026—three months before Cisco—the Fourth Circuit affirmed. And it directly confronted the foreign-relations worry that animates Barrett’s opinion. Because Congress had itself endorsed torture claims under the ATS and its companion statutes, the court explained, “allowing this case to proceed lacks any potential to negatively affect foreign relations.” If anything, the court said, the opposite is true: “nothing would be more offensive to the arena of foreign relations than to proclaim that courts of the United States may not provide a remedy to foreign nationals who were tortured by members of the U.S. military.”

The existence of cases like Al-Shimari (and Al-Shimari itself) is, to me, the critical point Justice Barrett’s opinion elides. The foreign-relations objection has at least some force in “foreign-cubed” suits like Kiobel, where U.S. courts are asked to referee a dispute among foreigners over conduct abroad. It has almost no force where the defendant is an American company and the alleged wrong is torture carried out under color of U.S. authority in a manner that, per Kiobel, “touches and concerns” U.S. territory. In those cases, refusing to hear the claim doesn’t protect American diplomacy—it announces to the world that the United States offers no forum when its own contractors and companies are accused of grave human rights abuses. Al Shimari shows how this is supposed to work. There, you had an ATS suit that went to a jury after years of litigation over jurisdictional and procedural predicates. The case not only produced a verdict, but it survived every foreign-relations and separation-of-powers objection that CACI raised. In other words, Al-Shimari illustatres the very accountability that the ATS was revived to provide, delivered without any of the diplomatic ramifications that Justice Barrett’s majority opinion just assumed are inevitable.

Whether Al Shimari itself survives is now an open question—CACI is already arguing that Cisco forecloses the plaintiffs’ aiding-and-abetting theory, and the plaintiffs are countering that torture, like piracy, sits within even the narrowest reading of the 1789 statute. (Perhaps needless to say, I’m deeply sympathetic to the plaintiffs here.) But however that case comes out, its stakes will be deeply significant. For 46 years, the ATS gave torture survivors somewhere to go when no one else would hold their abusers to account—all the more so when the abusers were Americans or American corporations. Cisco has taken most—if not all—of that away. The problem isn’t just what Cisco means for human rights plaintiffs, real as that is. It’s how little work this Court now thinks it has to do before walking away from a precedent it no longer likes—something that the same 6-3 majority would do two more times in the seven days between Cisco and the last hand-downs of the October 2025 Term.

SCOTUS Trivia: The Fifth Seal

For … reasons, I was recently watching a (bad) old West Wing episode (from the sixth season, by which point everything had gone to pot), where Vice President Bob Russell keeps telling his completely unfunny joke about how, if he looks at the Vice President’s seal just so, it kinda looks like it says “President of the United States.”

Somehow, that got me thinking about the Supreme Court’s seal—including its history and evolution. Here’s an image of the current version:

As it turns out, the current seal is the Court’s fifth in its history. On Wednesday, February 3, 1790—during the very first sitting of the Supreme Court—the Court ordered “that the Seal of this Court shall be the Arms of the United States, engraved on a circular piece of Steel of the Size of a Dollar, with these words in the Margin ‘The Seal of the Supreme Court of the United States.’” That original die served the Court for four decades; its last known use came in August 1831, on the papers in Worcester v. Georgia.

Four successive redesigns followed, culminating in the larger, less ornate version the Court ordered in May 1904 and adopted on May 4, 1905—the one still in use today. The symbolism is derived from the Great Seal of the United States, as are most of the design elements. Indeed, besides the Court’s name, the only detail that’s specific to the Court’s seal is also the one with the most meaning: beneath the eagle’s claws sits a single star, representing the “one supreme Court” that Article III creates—a not-so-subtle reminder that the Constitution mandates exactly one such body and leaves control over the existence, size, and scope of the rest of the federal judiciary to Congress.

The seal remains in the custody of the Clerk of the Court, who stamps it on official papers—including the admission certificates issued to new members of the Supreme Court bar and, as I’ve learned the hard way, the official judgment handed down 32 days after a merits case has been decided.

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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there—especially from human rights abuses, for which there are increasingly few remedies in U.S. courts.

That behavior was on display again late Tuesday, when the en banc Fifth Circuit granted the Trump administration’s unprecedented request for a “precedential stay” of three consolidated district court decisions in the latest dispute over the government’s novel and controversial immigration detention policies. Even though the full court of appeals had already agreed (without even being asked) to rehear a panel decision that had recognized constitutional limits on how long the government can detain certain noncitizens pending their removal before providing them with a bond hearing, it apparently concluded that further intervention was warranted.

As a result, in its unsigned, unexplained order, the Fifth Circuit acted in a way that seems at least outwardly intended to deter district courts in cases other than the three under full court review from providing bond hearings to any of the tens of thousands of other noncitizens currently in immigration detention in Louisiana, Mississippi, and Texas. To get there, the court of appeals had to turn the entire concept of an emergency application on its head—and accept, without any analysis, the Trump administration’s deeply disingenuous arguments about what the district courts in these specific cases had actually done. And the Justice Department is already claiming (wrongly) that this unexplained order somehow resolves the constitutional question at issue—perhaps in an effort to distract from what the Fifth Circuit actually said (i.e., nothing):

All of this may seem hypertechnical, but as I explain below the fold, it comes at an enormous cost. A bond hearing is not—as Brett Shumate asserted—“a constitutional right to roam free”; it allows a noncitizen to demonstrate that they should be released pending their (potentially years-long) removal process—based upon an individualized judicial determination that they pose no threat to themselves or others, and no risk of flight. Without even being eligible for bond hearings, everyone from children to the elderly would be forced to remain in indefinite immigration detention for the duration of their removal proceedings (and pending their removal), even those who have never committed a crime—in conditions that, according to a growing number of reputable accounts (including DHS’s own Inspector General), are increasingly inhumane. That’s problematic enough in the abstract; it’s even more galling when it comes through unexplained and undefended procedural chicanery.

For those who aren’t paid subscribers, we’ll be back Monday with our regular coverage of the Supreme Court. For those who are, please read on.

Read more

Welcome back to “One First,” a newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

Share

If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription if and when your circumstances permit:

Subscribe now

For as long as I’ve taught National Security Law, the Alien Terrorist Removal Court (“ATRC”), a specialized national security court that Congress created in 1996, has been a recurring curiosity of mine. The idea was to provide a judicial mechanism like the one provided by the Foreign Intelligence Surveillance Act (FISA), in which the government could simultaneously (1) obtain meaningful judicial review in a deportation case while (2) keeping the (classified) evidence secret. Indeed, in a 2014 book chapter, my now-colleague David Cole and I held out the ATRC procedure as a potentially useful illustration of the “cleared counsel” model of national security litigation—in which, instead of providing the subject of an enforcement proceeding with the classified information on which the proceeding depends, the government provides it to a lawyer for the subject (albeit in only a subset of cases before the ATRC). As the chapter reflects, the ATRC had remained an academic curiosity—because it had never actually been used. Until last week.

On Friday, Seamus Hughes (the truly indispensable editor of “Court Watch,” among many other things) broke the news that the Trump administration had filed the first-ever application before the ATRC, leading to the first order in that court’s 30-year history (and its hasty creation of a website). We don’t know much beyond what Seamus has already reported (and what’s now on the ATRC’s website). But as someone who has spent more time thinking about the ATRC than, I suspect, 99.99% of the population, now seems as good a time as any to introduce the court; to flag the constitutional questions its statutory structure raises; and to reflect on how alarming it is that the Trump administration has, after all this time, activated it.

Skipping to the punchline, much like the FISA Court, the ATRC reflects a series of imperfect compromises. And there are reasons to worry about some of the benefits that the ATRC process provides to the government. But—and this is the important part—it also has some protections baked into it that are not currently available (or, at least, not immediately available) to many non-citizens in the “regular” removal process, primarily the robust role of Article III district judges—as opposed to Justice Department immigration judges—in administering it. I have at least some concerns about why the Trump administration is dusting it off now. But there’s no universe in which the ATRC will allow the administration to pursue the kind of mass, summary deportations that it has thus far been unable to achieve through any other immigration authorities. If there’s something nefarious afoot, it’s meaningfully smaller than that.

More on all of this below. But first, the Supreme Court-specific news.

On the Docket

There was only a single full-Court ruling out of the Court last week—Tuesday’s denial, over no public dissents, of a stay of execution to Florida prisoner Dennis Sochor. The only other big news out of the Court last week was Tuesday appearances by Justices Kagan and Barrett at House and Senate budget hearings—the first public testimony by sitting justices since 2019, and their first appearance in the Senate since 2011. I’ve written before about the myriad reasons why this really ought to go back to the annual routine that it used to be; hopefully Tuesday’s hearings were a first step in that direction.

Finally, as I noted in last Thursday’s bonus issue, I’ve been a bit busy with Court-related work myself—and posted to SSRN a draft of my Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, tentatively titled “The Court Against the Courts.” As I noted in Thursday’s post, I’d welcome your feedback!

The One First “Long Read”: Unpacking the ATRC

In 1996, as part of the Antiterrorism and Effective Death Penalty Act (and as quickly amended in the Illegal Immigration Reform and Immigrant Responsibility Act), Congress created the ATRC—a tribunal largely modeled on the FISA Court, and which was intended to be able to handle individual deportation hearings in cases involving highly sensitive national security information. Although the statutory procedures are quite complex, the Federal Judicial Center has a helpful summary:

The statute authorize[s] the Attorney General to draft an application for removal of a suspected alien terrorist [a term defined by statute], and to submit the application to the removal court under seal. A single judge may grant the application upon a finding that the alien in question has been identified correctly as an alien terrorist present in the United States and that removal under other available legal means would pose a risk to national security. Upon granting a removal application, the court must hold a public removal hearing at which the accused has the right to be represented by counsel and the government bears the burden of proving that the accused is an alien terrorist. To avoid the disclosure of classified information, the government must prepare an unclassified summary of such information which the judge must find to be sufficient for the alien to prepare a defense. If the government meets its burden of proof at the hearing, the court will order the alien removed from the United States.

As for the judges, the ATRC is composed of five already-serving Article III district judges “assigned” by the Chief Justice to also serve on that court, the only criterion for which is that they come from five different circuits. (For more on the Chief Justice’s assignment powers, see the trivia, below). Under the 1996 statute, the Chief Justice may assign to the ATRC judges who are also serving on the FISA Court, but he doesn’t have to (all five of the current ATRC judges are also FISA judges, but that hasn’t always been true). The Attorney General can appeal a judge’s denial of an application under the statute, and either the Attorney General or the non-citizen at issue may appeal the decision of the judge after a removal hearing. Unlike the FISA process (where there’s also a specialized appeals court—the FISA Court of Review), the 1996 statute gives the ordinary D.C. Circuit exclusive appellate jurisdiction over the ATRC.

I started with the judges and the appeals process because this is probably the most important point about the ATRC: The compromise it reflects is one in which the government’s benefits involve the protection of classified information and the burden of proof (about which more shortly), but in which the costs sound almost entirely in who is reviewing these cases. (There are also some more pro-government rules respecting detention of the subject of the hearing both beforehand and afterwards, but the daylight between those rules and the rules in “ordinary” cases has shrunk quite a bit since 1996.) Unlike immigration judges housed within the Justice Department’s Executive Office of Immigration Review (who are less and less independent by the day), the ATRC is staffed not just by Article III district judges, but (especially today) by those with experience handling the only comparable kind of litigation—classified applications and other proceedings brought under FISA.

The ATRC’s Chief Judge, Judge Joan Ericksen (a senior judge on the District of Minnesota), made this abundantly clear in the order she publicly issued on Thursday. Here’s the relevant text:

On July 15, 2026, the United States filed an Application to the United States Alien Terrorist Removal Court pursuant to 8 U.S.C. § 1531 et seq. to remove the respondent in the above-captioned matter from the United States. On July 16, 2026, the Court held a hearing as contemplated by § 1533(c)(1), at which the Court heard attorney argument but no sworn testimony was taken. During the hearing the United States offered to supplement the record with information, and the Court had questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes with respect to those actions. The answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration.

In other words, the ATRC is not going to be a rubber stamp.

That said, it’s also worth highlighting the constitutional concerns militating in the other direction, most of which were flagged (and carefully analyzed) in an excellent 2008 student note in the Duke Law Journal by John Dorsett Niles. The biggest ones involve the evidence. If the cost to the government of the ATRC process is an Article III judge and a D.C. Circuit appeal, the benefit is the ability to rely entirely on evidence that will remain classified—and be presented in most cases only to the judge and only in camera.

If the judge, after considering the evidence on the record as a whole, finds that the Government has met its burden [i.e., that a preponderance of the evidence shows the non-citizen to be an “alien terrorist,” as that term is defined by statute1], the judge shall order the alien removed and detained pending removal from the United States. If the alien was released pending the removal hearing, the judge shall order the Attorney General to take the alien into custody.

In other words, the statute authorizes the government to remove someone from the country based on evidence they never see and don’t meaningfully have an opportunity to contest. As Niles’s note points out, this raises quite severe due process questions—especially for those non-citizens whose due process rights most closely approximate those of citizens, i.e., lawful, permanent residents (LPRs, or “Green Card” holders).

Mindful of those concerns, Congress provided a special procedure for cases in which the subject of the proceeding is an LPR. Under 8 U.S.C. § 1534(e)(3)(F), the court in such a case must appoint a “special attorney to assist the alien,” “by reviewing in camera the classified information on behalf of the alien, and . . . by challenging through an in camera proceeding the veracity of the evidence contained in the classified information.” In other words, an LPR is entitled to have a lawyer challenge the evidence being used against them, even if the lawyer can’t actually consult with the subject of the proceeding. This approach is obviously not perfect, but it reflects at least a genuine attempt on Congress’s part to balance the government’s interest against that of the non-citizen.

At the other end of the spectrum, for better or worse (my own view skews toward the latter), non-citizens with far weaker claims to comparable due process protections (including those who have never had lawful immigration status) can be removed from the country under this provision without ever being told why; other than the government, only the judge assigned to the case (and the D.C. Circuit) would ever know the reasons. And in the middle, perhaps the hardest cases are those in which the subject is a non-citizen with substantial lawful connections to the United States, just not LPR status. Those individuals would have the strongest argument, in my view, that the statute fails to accord them the constitutionally required process—because they don’t get the benefit of the “special attorney” even though they have substantial due process rights.

As Niles notes, the seriousness of these constitutional concerns is almost certainly a big part of why, across 30 years, the government had never previously utilized this procedure. And we have no way to know what it is that prompted the Trump administration to change course now. But it seems worth flagging three things that we do know—which ought to bear on both how big a story this is and how alarmed we should be by it.

First, on its face, the statute contemplates a robust and meaningful role for the district judge—in lieu of the subject and their attorney in most cases. And Thursday’s order by Chief Judge Ericksen is a promising sign that she, at least, takes that role seriously. Courts could do a lot, in this context, to mitigate the constitutional concerns by ensuring not only that the government is held to the statutory requirements in every particular, but that its evidence that the subject really is an “alien terrorist” is robust and substantial.

Second, because of the meaningful (if secret) judicial review the statute contemplates, there is no universe in which the ATRC could become a vehicle for mass, summary deportations along the lines of what the Trump administration has already attempted—including through the Alien Enemies Act of 1798. The ATRC is exactly what the executive branch-dominant process before immigration judges and the Board of Immigration Appeals is not—it’s insulated from political pressure. However the ATRC’s judges come out in individual cases, the substance and timing of the review the statute contemplates would be deeply antithetical to any attempt to use its procedures in a large number of cases at any one time. It’s a scalpel, not a bazooka.

Third, and militating in the other direction, the fact that the government had never previously used this process in the 30 years it’s been on the books speaks to the discomfort that just about everyone who’s ever looked carefully at the statute has come away with. Democratic legal systems abhor secret evidence—not just because of the grave fairness concerns it can create but because of the corrosive effects of having these kinds of decisions made out of the public eye, no matter how faithful to the relevant legal criteria they may be. The FISA process may affect a heck of a lot more people, but no one is being removed from the country based solely on a secret decision made by a FISA judge based upon secret and uncontested evidence.

Even in a world in which the five ATRC judges are doing their level best to put the government through its paces, and to look out for the interests of the non-citizen whose liberty is at issue, it is more than a little difficult to have faith in such a process—no matter what we think of the administration that’s invoking it. All the more reason, in my view, for abolition of the ATRC—or, at the very least, substantial reform—to be added to the laundry list of lower court-directed measures that will be sorely needed the next time we have a Congress that cares. Until then, here’s another envelope-pushing move by the Trump administration to which we’ll have to pay close attention, and another example of Article III district judges serving as the principal and most meaningful check to hold the executive branch accountable.

SCOTUS Trivia: The Chief Justice’s Assignment Power

One of the Chief Justice’s more interesting statutory authorities is the power to “assign” (a verb that has intentionally different legal implications from “appoint”) already serving Article III judges (and justices) to temporary service on other courts. The ATRC is one of four distinct courts (or panels) staffed entirely by Chief Justice assignments; the FISA Court, the FISA Court of Review, and the Judicial Panel on Multidistrict Litigation are the other three. But the Chief Justice also has the (oft-used) authority to assign active and senior district and circuit judges (and retired justices) to temporary service on other courts. (This practice is generally referred to as “sitting by designation.”)2

Chief Justice Roberts’s approach to these assignments has come under some fire in the past, including in a July 2013 New York Times study by Charlie Savage that raised questions about whether Roberts’s assignments to the FISA Court had skewed toward judges appointed by Republican presidents to a meaningfully greater degree than the assignments made by his predecessors. I’ll just say that, for all of the criticisms directed toward the Chief Justice these days, the current compositions of these courts reflect a pretty impressive cross-section of highly regarded judges appointed by presidents of both parties. There are plenty of problems with the ATRC (and the FISA Court, while I’m at it). But in my view, the identity—and quality—of the judges is pretty far down the list.

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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there.

For better or worse, I have the honor and privilege of having been invited to write the Foreword for this year’s Supreme Court issue, covering the October 2025 Term (to be published in November 2026). And now that I have a completed draft, I thought I’d use today’s bonus post to introduce (and share) the draft, and, below the fold, to reflect a bit on both (1) the evolution of the Foreword in general; and (2) the specific reasons I settled on the focus of this year’s piece.

To spoil the punchline, here’s the abstract:

The Supreme Court sits atop a judicial system on which it is deeply dependent. It lacks the capacity to superintend more than a fraction of the cases filed each year, and it relies on the “inferior” courts beneath it to develop records, sharpen issues, and enforce compliance with coercive orders. The Chief Justice (of the United States, not just the Supreme Court) is steward of that whole system—not merely of the Court at its apex.

Since President Trump returned to office in January 2025, that system, and federal district courts in particular, has been subjected to a sustained, multi-front assault without precedent in American history: a historic flood of litigation, rhetorical and impeachment-based attacks from the political branches, escalating threats against judges and their families, and mounting executive defiance of court orders.

One might have expected the Supreme Court to be the lower courts’ shield. In this Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, I argue that it has instead been a significant part of the problem. Through an accelerating series of emergency-docket interventions—and through its merits rulings, its rhetoric, and its silences—the Court has stayed, narrowed, or vacated district court orders, often without full briefing, argument, or reasoned explanation, while treating trial judges’ considered factfinding and legal conclusions as provisional placeholders to be revisited at the justices’ discretion. Using seven sets of cases from the past eighteen months, I show that the Court has done significant damage to the formal, practical, and moral authority of federal district courts to hold the federal government to account—all while arrogating much of that same authority to itself, with respect to factfinding, law-finding, the timing and scope of appellate review, and the balancing of the equities.

The cumulative effect has been to recast the district judge from an Article III adjudicator whose orders bind the United States into something closer to an adjunct of the justices. That transformation, I contend, is best understood as one more expression of the judicial aggrandizement—and, ultimately, the “autocratic judging”—that has come to define the Roberts Court, and it poses a serious threat to the rule of law. Re-empowering the district courts, accordingly, should be central to any serious program of court reform. The story of the Supreme Court since early 2025 is, in the main, a story about the Court against the courts.

And for those who would like to read more (warning: it’s … long), the full draft can be downloaded from SSRN at this link. Needless to say, I’d welcome any and all feedback!

For those who are not paid subscribers, we’ll be back Monday with our continuing coverage of the Supreme Court. For those who’d like to know a bit more about the Foreword in general and my contribution, in particular, please read on.

Read more

Share

If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription if and when your circumstances permit:

Subscribe now

Given the paucity of news out of the Supreme Court last week, I’m devoting today’s newsletter to an ongoing and increasingly messy litigation battle between the Trump administration and hospitals providing gender-affirming care to transgender minors, and the related litigation between the Federal Trade Commission (FTC) and the World Professional Association for Transgender Health (WPATH)—the professional body whose Standards of Care shape how gender dysphoria is treated worldwide.

This litigation did not arise in a vacuum. Rather, it’s the latest development across nearly eighteen months in which the Trump administration has made ending gender-affirming care an explicit policy goal and directed federal agencies to investigate the doctors and organizations that (legally) provide or support it. But the Trump administration’s animus and shady litigation behavior does not make every criticism WPATH has faced baseless, nor does it resolve the underlying, genuinely contested questions about the evidence behind WPATH’s guidelines. The goal of today’s post is thus to provide enough of a background on what’s going on in these cases for folks to (hopefully) reach their own conclusions. And before diving in, let me express my thanks and appreciation to one of my superstar research assistants, Abby Liman, for truly superlative assistance with this post.

Background

WPATH is a nonprofit professional association that has, for more than fifty years, published the “Standards of Care” (SOC) that much of the world’s clinical, insurance, and legal infrastructure treats as the authoritative guide to treating gender dysphoria. On the other side are the Justice Department the FTC—a federal agency tasked, among other things, with certain consumer protection responsibilities, which has been investigating WPATH and peer organizations, including the American Academy of Pediatrics and the Endocrine Society, over their public statements on gender-affirming care for minors.

Back in 2022, WPATH had published the eighth edition of its Standards of Care and, in doing so, dropped the specific age limits that prior editions had attached to hormones and certain surgeries. That editorial decision—and internal documents about how it was made—has become the centerpiece of the criticism against the organization. But it also became fodder for the Trump administration, which has made hostility to gender-affirming care—and to transgender rights more broadly—an explicit policy priority. On January 20, 2025, the President issued an executive order announcing that the federal government would recognize only two sexes and enforce “all sex-protective laws” accordingly; eight days later, a second order, “Protecting Children from Chemical and Surgical Mutilation,” declared it federal policy not to “fund, sponsor, promote, assist, or support” the “transition” of minors and to “rigorously enforce all laws” limiting such care.

Those orders set the tone, and the enforcement agencies followed. In April 2025, Attorney General Pam Bondi issued a memorandum accusing clinicians of deploying “junk science” to justify “maiming and sterilizing children” and directing DOJ components to investigate providers; a June 2025 Civil Division memo made those investigations a stated priority, and DOJ’s own press release announcing the first wave of subpoenas quoted Bondi vowing that “medical professionals and organizations that mutilated children in the service of a warped ideology will be held accountable.”

That context matters for two reasons. First, it is the evidentiary backbone of the retaliation and improper-purpose findings that courts would repeatedly make about those subpoenas: judges did not infer animus from thin air but from the administration’s own words—including a DOJ lawyer’s concession in one hearing that “the executive branch wants to reduce or eliminate gender-related care to minors,” and FTC Chairman Andrew Ferguson’s memorandum promising to “fight back against the trans agenda” by investigating “the doctors, therapists, hospitals, and others who deceptively pushed” such care. Second, it is precisely what makes the two sides’ conduct so hard to sort: an administration that has openly announced its goal of ending a category of medical care, and then deploys investigative tools against the providers and professional bodies that support it, invites the suspicion that any given enforcement action is pretextual—even in the instances where the underlying legal theory might otherwise stand on its own.

One last note before seguing to the nationwide litigation: I’ve seen the FTC/WPATH imbroglio described elsewhere as “multidistrict litigation,” but it is not an MDL in the technical sense of a single consolidated proceeding under 28 U.S.C. § 1407. Instead, what’s happening is a campaign playing out across multiple districts at once. The geographic sprawl is not an accident, and is itself one of the central features (and, to my mind, problems) of the underlying dispute.

The Trump Administration and the Nationwide Losses It Incurred

The litigation kerfuffle began in July 2025, when the Department of Justice issued more than twenty administrative subpoenas to hospitals providing gender-affirming care, demanding the identities and medical records of minor patients. Those efforts met with near-uniform objections from district courts across the country, most finding they had been issued for an improper purpose.

Judge Chun in the Western District of Washington set aside the subpoena to Seattle Children’s Hospital, citing the government’s “threadbare justification” and “strong evidence” of improper purpose. Days later, Judge Joun in the District of Massachusetts quashed the subpoena to Boston Children’s Hospital, pointing to the administration's own executive orders and memoranda as evidence of its objective. Judge Whitehead, also in the Western District of Washington, quashed a subpoena in the QueerDoc matter, concluding that the government “issued the subpoena first and searched for a justification second.” Judge Kearney in the Eastern District of Pennsylvania quashed a demand for children’s medical and psychological records, finding the link between patient identities and any fraud theory “tenuous at best.” Judge Bissoon in the Western District of Pennsylvania granted a motion to quash in the UPMC matter, writing that the government’s demand carried “more than a whiff of ill intent.” Magistrate Judge Chung in the District of Colorado recommended that a subpoena to Children’s Hospital of Colorado be held unenforceable as a “smokescreen,” expressly “join[ing] the chorus” of courts before him. And Judge Rubin in the District of Maryland quashed the subpoena to Children’s National Hospital as “a pretext to fulfill the Executive’s well-publicized policy objective.”

The District of Columbia litigation belongs in the same story but occupies a distinct branch of it. Where the seven quashals concerned the DOJ’s administrative subpoenas, the D.C. cases challenged a different instrument—the FTC’s civil investigative demands (CID)—and three organizations brought parallel suits there: the Endocrine Society, the American Academy of Pediatrics, and WPATH. The doctrinal frame also differed: rather than resting on the “improper purpose” standard that governs subpoena enforcement, Chief Judge Boasberg analyzed the CIDs as likely First Amendment retaliation, granting a preliminary injunction in the Endocrine Society case on May 7 and, the same day, enjoining the WPATH CID by relying on that companion opinion. Yet the two branches were expressly linked: Boasberg grounded his reasoning for enjoining the CIDs in the rulings by a “slew of courts” that had already characterized the DOJ’s subpoenas as a "smokescreen" for pressuring providers to abandon gender-affirming care, citing the Colorado and Western District of Washington decisions among them. The connection ran the other way too—the Rhode Island Child Advocate, in turn, leaned on the same cross-district consensus in its own motion to quash. What ultimately set the D.C. cases apart was how they ended: not in a merits ruling but in the FTC's withdrawal of the CIDs on the day it filed a new lawsuit in Texas, which mooted the preliminary-injunction motions in D.C.

Shopping for Chief Judge O’Connor

Indeed, it was only after this unbroken run of losses that the government turned to the Northern District of Texas—and the Fort Worth division, specifically, without ever actually explaining why that’s where this nationwide investigation has been centered. (Although Fort Worth is not technically a “single-judge division,” the two judges who hear 90% of the civil cases filed there—Reed O’Connor and Mark Pittman—are both … pretty far to the right end of the ideological spectrum, at least as federal judges go.)

To remind folks, O’Connor, a George W. Bush appointee who became chief judge in 2025, has for years been one of the go-to judges for conservative litigants, a reputation built in part on the outsized power of one-judge divisions where a plaintiff can effectively choose its jurist (including the Wichita Falls division in which O’Connor hears 100% of new civil cases). He has authored some of the highest-profile district-court rulings of the last decade—striking down the Affordable Care Act and portions of the Indian Child Welfare Act among them—and has himself publicly defended the existence of single-judge divisions (and the judge-shopping it invites), blasting the judiciary’s leadership for “caving to political pressure” when it moved to curb the practice. (I published a response to O’Connor’s speech here.)

Importantly, it’s not quite accurate to refer to what the government is doing in Fort Worth as “judge-shopping” (since Fort Worth isn’t a single-judge division). But once one of these cases was assigned to O’Connor, the federal government appears to be have been relying on the claim that all of these other disputes are “related” to produce the same result—having O’Connor handle all of the nationwide litigation relating to the Trump administration’s investigations of gender-affirming care for minors.

The conduct that has drawn the sharpest “exceeded his power” criticism is not the handling of the WPATH litigation (which we’ll come back to in a moment), but a companion episode: the DOJ’s subpoena to Rhode Island Hospital, which kicked off the latest maneuvering in Fort Worth. On April 30, 2026, DOJ filed a petition to enforce its administrative subpoena against Rhode Island Hospital, demanding five years of records on every minor who received gender-affirming care—including patient names, Social Security numbers, diagnoses, and family details, and asserting that its investigation was “being carried out in the Northern District of Texas.” Chief Judge O’Connor granted the motion to compel that same day, without opposition and without notice to the hospital, ordering production within fourteen days. After the District of Rhode Island separately quashed the subpoena, O’Connor on May 18 ordered the hospital to turn over all responsive records to his court for in camera “safekeeping” pending appeal, accusing it of trying to “circumvent the authority of this Court and the Fifth Circuit”; the hospital’s appeal and emergency-stay request to the Fifth Circuit were denied.

O’Connor pressed ahead anyway, and—most controversially—barred the hospital from seeking further relief in any court other than his own, the Fifth Circuit, or the Supreme Court. In effect, O’Connor issued an injunction aimed not at the executive branch or the plaintiffs, but at another federal court, a maneuver for which, as one commentator put it, “[n]either the Constitution nor any statute comes close to awarding O’Connor, or any other judge, this power.”

At the same time, enforcing an administrative subpoena is a bread-and-butter judicial function, and O’Connor grounded his order in a finding that the government was “engaged in a legitimate investigation” acting “pursuant to its statutory authority.” He also ordered the records produced to the court itself, to be held privately, rather than handed straight to the government—a protective measure, not a wholesale disclosure (which is why the First Circuit ultimately refused to intervene in the Rhode Island case).

The Fort Worth venue engineering is not a one-off, which is part of why it has drawn such scrutiny. Beyond the Rhode Island case, DOJ began issuing grand-jury subpoenas out of the Northern District of Texas to reach other hospitals thousands of miles away—Stanford’s Packard Children’s in California and NYU Langone in New York—even though nothing about those investigations was local to Texas. Judges in both places said so bluntly. Judge Pitts in the Northern District of California found that the government had “issued its grand jury subpoena to avoid another loss and force Packard and its patients to pursue any challenge . . . in a forum that DOJ deems friendlier,” and that DOJ “cannot reasonably invoke comity and the separation of powers as cover for its forum shopping”; Judge Failla in the Southern District of New York likewise granted emergency relief to a class of minor patients. As she put it in ruling from the bench, “[t]he subpoena, expressly targeting members of a particular and uniquely vulnerable group, both shocks the conscience and rises to the level of the most egregious official conduct.”

Perhaps because of the wall of resistance it met in trying to enforce these subpoenas, the government finally resorted to another tack on June 17—when the FTC and four states filed a standalone lawsuit against WPATH and, the same day, withdrew the D.C. CIDs. The FTC then moved for a TRO and preliminary injunction asking O’Connor to bar WPATH from seeking relief in any court other than the Northern District of Texas, the Fifth Circuit, or the Supreme Court. That gambit produced the one moment of restraint: on July 3, after WPATH sought emergency relief in D.C., O’Connor issued a docket order stating that, “[a]fter consultation with Chief Judge Boasberg (D.D.C.),” he would defer ruling on the TRO to permit “orderly consideration” of the parallel injunction requests—a de-escalation that, as one observer noted, O’Connor had conspicuously declined to extend to the Rhode Island Hospital dispute.

Meanwhile, just last Friday, Chief Judge Boasberg rejected WPATH’s attempt to use its D.C. injunction to freeze the FTC’s new Texas enforcement suit, explaining that his May order “did not protect WPATH from complying with all information-seeking processes—only the CID that the Court held was likely retaliatory,” and that his role was not “to prejudge every permutation of the FTC’s future actions as unconstitutionally retaliatory.” Alas, it’s hard to disagree with Boasberg’s conclusion; once the FTC pulled the CIDs and refiled its theory as a standalone lawsuit in Texas, the D.C. injunction had little left to bite on, since it had enjoined a specific administrative demand that no longer existed—not all enforcement action by the FTC writ large.

***

Stepping back from the details, the upshot is that, for more than a year, district judges across the country reached a remarkable, largely unprompted consensus that these subpoenas were pretextual—a form of horizontal dialogue that lent the judiciary’s conclusions real institutional weight. But venue engineering of the kind on display in the Rhode Island and grand-jury episodes threatens to override that consensus altogether: if a single, reliably sympathetic forum can absorb every dispute and insulate the government’s preferred outcome from the accumulated judgment of a dozen other courts, that horizontal consensus becomes largely irrelevant to how these cases actually resolve. (Folks might recall that these were some of the loudest arguments against “nationwide injunctions,” arguments the Supreme Court endorsed last June, at least in that specific context, in CASA.) That’s not to say that the end result of all of this procedural maneuvering by the federal government is inconsistent with the rules as they currently stand; my own view is that it isn’t. But the above account seems like a pretty strong argument for why it should be.

The mischief caused by this kind of venue engineering is compounded by the fact that the FTC itself no longer operates with the independence from the White House it once had, following the Supreme Court’s Slaughter decision—raising the prospect that agency enforcement actions like the WPATH suit become a recurring tool rather than an isolated episode, and that the ability to judge- and forum-shop will only increase the politicization and ideological extremism of these disputes.

Three Takeaways

All of this leads me to what I see as three takeaways from what’s going on in these cases—one about the executive branch; one about the underlying merits; and one about the courts.

First, the combination of FTC forum-shopping and direct political control is a troubling one. Indeed, there are serious questions about the government’s litigation conduct in these cases, to say nothing of the FTC’s attempt to assert enforcement authority over noncommercial speech by a nonprofit like WPATH. The specter of the government playing “heads we win, tails you lose” by withdrawing the CIDs only after it filed its deceptive practices lawsuit in a cherry-picked forum is not an especially becoming one, regardless of where one comes down on the merits. Not that long ago, we could’ve taken some solace from the fact that government lawyers could generally be trusted to turn square corners. But for better or worse, the combination of the Trump administration’s behavior and the direct control over the FTC the President now enjoys thanks to Slaughter ratchet up the appearance—if not the reality—of some truly sketchy behavior by the executive branch.

Second, and militating at least a little bit in the other direction, the government has gone to great lengths to suggest that concerns about WPATH’s Standards of Care are more than frivolous. The UK’s Cass Review—commissioned by the National Health Service, not by U.S. culture warriors, albeit still deeply contested—found that WPATH’s SOC8 was a low-quality clinical guideline (and that most international guidelines trace back to WPATH or the Endocrine Society, rather than independently support it). Similarly, several European health systems have restricted these procedures on evidentiary grounds. WPATH’s First Amendment objections to the FTC’s investigation may have been vindicated by Chief Judge Boasberg in the D.C. litigation, but its science remains at least somewhat under challenge.

That said, even reasonable evidentiary disagreement (if that’s what this is) is not the same as fraud, and the picture here strikes me as, at best, contested rather than settled: WPATH has argued with more than a little force that the Cass Review is itself an “outlier,” and that a draft German guideline developed with Austria and Switzerland—under review by 27 professional societies—broadly aligns with SOC8 and does not restrict puberty blockers. The Cass Review has also been subject to its own significant academic criticisms. And even for those who find the Cass Review and arguments based upon it more persuasive than I do, “the evidence is somewhat weaker than you said” is a very different accusation against WPATH than “you knowingly deceived consumers for profit,” which, contra the FTC’s allegations, this ain’t.

More fundamentally, WPATH’s core legal position—that a nonprofit professional association’s clinical guidance and advocacy are protected speech, and that a consumer-protection agency should not be policing a live scientific debate—is not a dodge. It is a serious First Amendment argument that a serious judge (Boasberg) found likely to prevail. WPATH’s stated defense that it “supports individualized patient care, not a ‘one size fits all’ approach,” and that its guidelines rest on “established scientific standards, expert consensus, and patient-centered values,” is a legitimate framing of what guidelines are supposed to do—offer clinical judgment, not consumer advertising. And the associational-privacy stakes of the FTC’s original records demand—compelled disclosure of members’ internal communications—are precisely the kind of intrusion the First Amendment has long guarded against, which is why the chilling effect Chief Judge Boasberg credited should worry even those who distrust WPATH’s science.

Third, and finally, one of the real problems created by forum- and judge-shopping is the concern that these kinds of questions are being steered to the judges most likely to answer them in a particular way, and not necessarily in a way that reflects the median viewpoint of neutral Article III jurists. I’ve long suggested that one of the most important ways to curb the most extreme forms of judge- and forum-shopping is for Congress to provide clearer guidance on where these kinds of lawsuits can be brought—and, indeed, to require some degree of randomness in cases with true nationwide implications.

To date, most of the focus of that conversation has been on suits against the government, but especially after Slaughter, it seems increasingly clear that government-initiated suits can also raise the same suite of concerns. After all, if the Trump administration can run nationwide administrative enforcement proceedings through a single division in the Northern District of Texas, then a future Democratic administration could do the same through the Northern District of California, or the District of Massachusetts, or … you get the point.

I don’t imagine I’m going to persuade anyone about who’s right on the science, medicine, or policy here. Indeed, I’m not entirely sure myself. But if nothing else, perhaps folks can (finally?) be persuaded that this kind of strategic litigation behavior makes it harder to have faith that the best answer is “the courts.”

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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue will drop on Thursday. As ever, I hope you all stay safe out there—especially from subpoenas issued by the Northern District of Texas.

Of course, that means the Court still has ~60% to go—and one of the things that’s missing from the docket to this point is Trump-related cases. To be sure, I count eight cases among the 24 already on the docket in which the federal government or one of its officers is a party. But none of those eight are really about major Trump administration policies/political disputes.

So which Trump cases are coming? Today’s bonus post identifies three (sets of) cases that I expect to reach the Supreme Court during OT2026—all of which will be, for obvious reasons, among the highest-profile cases the justices are likely to end up deciding next term: (1) those arising from the administration’s immigration detention policies; (2) a battery of appropriations/spending disputes; and (3) in a world in which Democrats retake either chamber of Congress in November, a rash of high-profile disputes over the inevitable congressional subpoenas that will follow.

But whether or not these specific predictions hold, the larger point is that the highest-profile decisions of OT2026 are, I suspect, going to come from cases that aren’t yet on the docket. In other words, if you want to know what we’ll be looking back at a year from now as the biggest cases of OT2026, don’t look at what the Court has already agreed to hear; look at what’s coming that it won’t want (or be able) to avoid.

For those who aren’t paid subscribers, we’ll be back Monday with our regular coverage of the Court. For those who are, please read on.

Read more

Share

If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription (for which we just launched new bonus features) if your circumstances permit:

Subscribe now

Usually, I use the Monday issue of the newsletter to cover both the news of the past week (“On the Docket”) and a deeper dive into either one of the news stories or some broader historical point about the Court (the “Long Read”). But given just how much news the Supreme Court made last week, I thought I’d use today’s issue for the rest of the news—the developments out of the Court last week that didn’t generate the same headlines as, e.g., Tuesday’s birthright citizenship or transgender sports rulings or Monday’s rulings in Slaughter and Cook, three of which I covered to some degree in last Thursday’s bonus issue.

Plenty of these other developments would have gotten a lot more attention at any other point in the news cycle. But one of the problems of covering the Court is that there’s only so much oxygen/ink that can be consumed by news out of One First Street—which tends to come down in fits and spurts, especially in the days leading up to the justices’ summer recess. So consider today’s issue an extended “On the Docket”—and my attempt to fill out all (or, at least, most) of the “other” news that the justices made last week. (Okay, there’s docket-number trivia at the end, too.)

Bucket #1: The Other Merits Rulings

NRSC v. FEC (June 30)

In a 6-3 decision by Justice Kavanaugh, the Court struck down the Federal Election Campaign Act’s limits on “coordinated party expenditures”—the caps on how much party committees can spend in coordination with their own candidates—as a First Amendment violation. The ruling overruled the Court’s 2001 decision in FEC v. Colorado Republican Federal Campaign Committee (“Colorado II”), which had upheld those same limits—the second time in two days that the same 6-3 majority scrapped a decades-old precedent.

The heart of Justice Kavanaugh’s opinion was the claim that the only constitutionally sufficient basis for campaign-finance restrictions is preventing quid pro quo corruption, and that existing safeguards already address that concern. Justice Kagan dissented, joined by Justices Sotomayor and Jackson. Among other things, Kagan’s dissent flagged not only that the majority was dramatically underselling the other legitimate grounds for campaign-finance restrictions, but that getting rid of the limit on coordinated party expenditures would encourage more quid pro quo corruption, too. What’s more, Kagan’s dissent warned (almost certainly correctly) that the majority’s reasoning reopens a route for donors to channel far larger sums to candidates through party committees than the remaining direct contribution limits would otherwise permit. Just what we need…

Watson v. Republican National Committee (June 29)

In a 5-4 decision, the Court upheld Mississippi’s law counting mail ballots postmarked by Election Day and received within five days, holding that federal law does not prohibit such grace periods simply by defining Election Day as the first Tuesday after the first Monday. Justice Barrett wrote for the majority (joined by Roberts, Sotomayor, Kagan, and Jackson); Justice Alito dissented for four justices.

Watson is a good example of a case that would have been even “bigger” had it come out the other way. At it stands, it preserves similar grace-period laws, while also sparing election officials a last-minute overhaul just before the midterms and protecting military, overseas, and rural mail voters. It also marks a notable rebuke to the Trump administration’s broader campaign against voting by mail—which may have atmospheric consequences, even if not doctrinal ones, in some of the other pending lawsuits.

Chatrie v. United States (June 29)

In a 6-3 decision, the Court held that law enforcement’s use of a “geofence warrant” to obtain cell-phone location-history data is a Fourth Amendment search. Justice Kagan, writing for the majority (joined by Roberts, Sotomayor, Kavanaugh, and Jackson, with Gorsuch concurring in the judgment), reasoned that individuals retain a reasonable expectation of privacy in location data, even when shared with third parties like Google. The Court remanded the question of the particular warrant’s validity to the Fourth Circuit. Justice Alito dissented (joined in part by Thomas and Barrett), calling the decision an “irresponsible escapade.” For now, the ruling narrows the third-party doctrine and could extend Fourth Amendment protection well beyond location data to the broader universe of app-generated records users share with tech companies. But as with Watson, the Court largely avoided any “bigger” ruling (including by leaving the warrant’s validity in this case open), so its practical reach remains unsettled.

Bucket #2: The Important Orders

There were two different Order Lists last week, along with a significant separate denial of an emergency application:

The June 29 Order List (from the June 25 Conference)

In Monday’s “regular” Order List, the Court added seven new cases to the October 2026 Term merits docket—on topics ranging from election law to parental rights.1 Among the notable grants:

• Republican National Committee v. Mi Familia Vota: A challenge to Arizona’s requirement that voters using the state registration form must show documentary proof of citizenship, and whether the National Voter Registration Act lets states remove noncitizens from voting rolls within 90 days of a federal election. This case could reshape how far states may go in imposing citizenship-verification requirements and conducting voter-roll purges, with direct consequences for registration practices (to say nothing of the ability to vote of eligible voters without easy access to the relevant documents) nationwide.

• International Partners for Ethical Care v. Ferguson: Whether parents have standing to challenge Washington laws that let licensed youth shelters provide mental-health services, including gender-transition-related care, to runaway minors without parental notice or consent. The grant puts parental-rights and gender-transition questions back before the Court, and its standing holding could set the terms for how parents can challenge state policies that displace their decision-making role.

• Wassily v. Blanche: Whether noncitizens who receive asylum that is later terminated can still become lawful permanent residents, or are instead permanently ineligible. The outcome could determine the immigration-status pathway for asylees whose protection is revoked—a recurring question with significant stakes for affected noncitizens.

The same list included some notable denials of certiorari (some with dissents): The Court denied review in President Trump’s appeal of the $5 million judgment in the second of the two E. Jean Carroll cases (which I covered in a prior issue). Justice Thomas (joined by Gorsuch) dissented from the denial in Alan Dershowitz’s defamation suit against CNN, indicating yet again that he would like for the Court to reconsider New York Times v. Sullivan. And Justice Sotomayor (joined by Justices Kagan and Jackson) dissented from a cert. denial in a qualified immunity case, calling the Seventh Circuit’s grant of immunity “clearly wrong,” and flagging, yet again, the asymmetry in the Court’s approach to qualified immunity rulings—where “clearly wrong” denials of immunity are summarily reversed, but “clearly wrong” grants of immunity are … left intact.

The June 30 Order List (from the June 29 “Clean-Up” Conference)

The Court dropped a second Order List on June 30—this time, from the “Clean-Up Conference.” Among other things, the Court granted and consolidated two Second Amendment cases—Viramontes v. Cook County (from the Seventh Circuit) and Grant v. Higgins (from the Second Circuit)—to decide whether bans on AR-15-style semiautomatic rifles violate the Second Amendment. The cases were consolidated for one hour of argument, likely in the fall, on the question presented in Viramontes; the Court left the related large-capacity-magazine cases on hold, keeping the dispute focused on the rifles themselves. This is the Court’s first plenary look at “assault weapon” bans since Heller and Bruen, and the decision could very well reshape firearms regulation nationwide.

The clean-up list also included a grant in Grand v. City of University Heights. That case involves an Ohio homeowner’s claim that city officials violated his constitutional rights by requiring a permit before he could host a neighborhood prayer group in his home. The case raises religious-liberty and property-use questions about how far local governments may regulate religious gatherings in private homes

In the same list, the Court also denied the Trump administration’s long-pending (and long-deferred) emergency application in Blanche v. Perlmutter, leaving in place a lower-court injunction that restored Shira Perlmutter to her position as Register of Copyrights after the Trump administration attempted to remove her. Perlmutter had argued that her removal was unlawful because only the Librarian of Congress may remove the Register, and that then-Deputy Attorney General Todd Blanche was not lawfully serving as Acting Librarian when he purported to fire her.

The Court had deferred action since November 2025, holding the application pending Trump v. Slaughter and Trump v. Cook. That never made a lot of sense, in my view, since the issue in Perlmutter is a very specific statutory question—whether the “Library of Congress” is an “executive branch agency” for purposes of the Federal Vacancies Reform Act. That answer has nothing to do, of course, with the questions the Court ultimately decided in Slaughter and Cook.2 If the point of the deferral was merely to play for time, well, I guess it worked. There were no public dissents from the order—which stressed (entirely unnecessarily) that “The denial of the application is not a ruling on the merits of the legal issues presented in the litigation.” It’s interesting that the Court feels impelled to provide those kinds of caveats when ruling against Trump—and in very few other contexts.

The Stay Denial in Herridge (July 2)

The Court issued a single ruling last week after rising for its summer recess—denying former Fox News reporter Catherine Herridge’s emergency application to stay a lower-court order forcing her to either disclose a confidential source or pay $800 a day in civil-contempt sanctions. (Chief Justice Roberts had issued an administrative stay the previous Friday.) In a brief, unsigned order with no reasoning or vote count, the justices left the sanctions in place; only Justice Kavanaugh noted that he would have granted the stay.

The underlying dispute arises from 2017 Fox News stories Herridge wrote about a scientist investigated by the FBI but never charged; the scientist sued the government over the leak alleging a violation of the Privacy Act, and sought to compel Herridge to identify her sources. Herridge invoked a First Amendment reporter’s privilege, but the district court and D.C. Circuit held that the privilege was overcome by the plaintiff’s specific interest in establishing a Privacy Act violation here.

Bucket #3: Miscellaneous

Financial Disclosures

Eight of the nine justices released their 2025 financial disclosures on Monday, June 29; Justice Alito (yet again) received an extension, so his will follow later in the year. The annual disclosures continue to draw scrutiny amid ongoing debate over Supreme Court ethics and transparency, and Alito’s extension has perhaps the unintentional result that his filing will be watched even more carefully when it eventually arrives—versus coming right in the middle of the news cycle of last Monday’s rulings in argued cases. (Fix the Court has a lot more here.)

The Alito Non-Retirement Story

Not long after the Court literally left the bench on Tuesday morning, NPR published—then quickly retracted—a story reporting that Justice Alito was retiring. Veteran legal correspondent Nina Totenberg had apparently misheard Chief Justice Roberts announcing upcoming staff retirements as she was leaving the Court, and NPR pressed “publish” on a lengthy, pre-written career recap under an erroneous headline before pulling it. NPR issued an on-air correction and an apology; Totenberg called it “the worst professional mistake of my more than 50 years in journalism” and personally apologized to Alito.

Because people like gossip, there has been an inordinate amount of speculation online about how the mistake actually happened (and skepticism from too many people who ought to know better as to whether Totenberg is telling the truth). I’ll just say that I emphatically agree with the piece Dahlia Lithwick and Sonja West published in Slate, which argues that the episode is “not really a press story at all—it is a story about court transparency and hubris.”

As Lithwick and West note (and as I’ve flagged here before), the Supreme Court is the only branch of government that bars cameras; it refuses to release same-day transcripts or audio of opinion announcements; and it forces reporters to rely on hurried, in-person observation in a room where electronic devices are restricted. (Someone who sat in the Courtroom last Monday, for instance, wouldn’t have known the Court had carved out the Federal Reserve from Slaughter until the justices had finished reading Slaughter; everyone else knew immediately, because the Court handed out—and posted to the internet—the two rulings simultaneously, a move that, whether intentional or not, avoided spooking the markets.) Indeed, I noted last week that Totenberg’s error would not have been possible (or, at least, would not have led to NPR publishing an Alito retirement story) if we all had live access to the same audio that the press corps can already hear from the Court’s press room (and that members of the Supreme Court bar can hear from the attorneys’ lounge). Why shouldn’t the public at large (or producers in newsrooms) be able to hear the same things at the same time as the folks who make it into the Courtroom on hand-down days?

Instead, as Lithwick and West argue, all of these self-imposed obstacles set the press corps up to fail. And when the inevitable error occurs, the pile-on lands on the journalist rather than on the institution whose opacity made the mistake possible. The same lack of transparency, they rightly note, let Justice Alito “go rogue” in response to Justice Sotomayor’s oral dissent in Mullin v. Al Otro Lado with almost no public notice (something I flagged last week). Meanwhile, when a justice makes an error in a published opinion (even a biggie), it can be quietly corrected in-house—a very different accountability standard than the one everyone’s applying to NPR. Maybe accountability ought to be a two-way street for everyone, here?

Internal Tensions

Finally, all of this landed the same week as reporting from James Romoser in the Wall Street Journal of rising internal tensions at the Court, with several current justices said to privately miss the presence of retired Justice Stephen Breyer “both as a friend and for his ability to lower the temperature.” Breyer, according to Romoser’s sources, “could be counted on to help keep the peace,” in part by “lightening the mood” using “anecdotes about modern architecture and knock-knock jokes he learned from his grandchildren.” His embrace of collegiality “helped contribute to a sense that the court was a functional, collaborative institution, even when it was divided over tough cases.” What’s especially telling is the unspoken insinuation—that this sense is no longer … present. It may be inside baseball, but the less the justices are getting along, the harder it is for them to forge the kinds of compromises that might allow the Court to rise above the politics of the moment—something it repeatedly failed to do this term, as I argued last week. It’s hard to view these points as wholly unrelated.

SCOTUS Trivia:
The Resetting of the Docket Numbers…

Speaking of “inside baseball,” last Wednesday brought with it the annual resetting of the Court’s docket numbers—with 26-1 and 26A1 both being docketed the day after the justices rose for their summer recess.

I’ve written before about why the Court picks the (arbitrary) day after the justices rise for their summer recess to reset docket numbers (TL;DR: Until 1980, the Court formally adjourned when it rose for its summer recess, bringing the current Term to an official close). But however logical that numerical practice may have been until 1980, it’s completely anachronistic today (when the Court remains in session—and hands down lots of big rulings—over the summer). And the absence of any remaining direct justification exposes a practice that is otherwise both (1) arbitrary (since it depends on the unpredictable day that the justices rise for their summer recess); and (2) openly misleading when it comes to the data-gathering errors it provokes. The Court’s docket numbers should reset to 26-n, 26An, and 26Mn either on the day the October 2026 Term actually begins or on January 1, 2026—and not some random and otherwise irrelevant day in late June/early July.

This really shouldn’t be hard. Then again, it’s the Supreme Court.

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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue will drop on Thursday. As ever, I hope you all stay safe out there—especially from overcrowded news cycles.

In that roundtable, I already offered one of the two major arguments against this thesis—that it’s an assessment of the numerator without regard to the denominator, and that a full account of the Court’s behavior throughout OT2025 suggests that the Court behaved even more politically during the current term than during even the previous (highly politicized) one. Just to take one of many data points, last term (OT2024), there were six rulings in argued cases in which all six Republican-appointed justices were in the majority and all three of the Democratic appointees were in dissent (along with a slew of such rulings on the emergency docket). This term, there were … 13. (Along with two 6-3 summary reversals and 10 rulings on the emergency docket from which the three Democratic appointees all dissented.)

Today’s bonus issue addresses the flip side of that coin. In particular, below the fold, I identify four different moments in which the justices could have acted in ways to specifically defuse charges of political behavior—and opted instead to lean all the way in. As much as end-of-term narratives focus on what the Court did, and on the takeaways from individual rulings, consider today’s post an attempt to identify opportunities that the Court missed, as well. At least in the examples discussed below, by opting for the outcome that made the Court look more transparently political, the Court inflicted a series of (unnecessary) credibility wounds on itself.

For those who aren’t paid subscribers, we’ll be back Monday with our regular coverage of the Court. For those who are, please read on.

Read more

As I noted a few weeks back, we’ve launched a new feature through … today where, on each day that the Supreme Court hands down a ruling in an argued case, we’ll be providing a short video summary of what the case was about, what the Court ruled, and what (if any) broader significance the ruling has going forward.

Today’s video covers the three maj…

Read more

There is already a lot to say about yesterday’s decisions (some of which I said in last night’s “Decision Day Summary” video for paid subscribers); and there will be a lot to say about whatever is coming today. But to both briefly hit on the biggest headline from yesterday and to set the table for today, I thought I’d offer three brief observations:

I. Slaughter is a Nuclear Bomb for the Separation of Powers

I wrote a lot last summer about the problems with the “unitary executive theory” in general, and with what Justice Kagan called a “bespoke exception” for the Federal Reserve in particular. Now that those “interim” (LOL) rulings have become permanent, it’s worth underscoring just how massively important yesterday’s ruling in Trump v. Slaughter is (and will be)—and how modest Trump v. Cook is.

To my mind, Slaughter is the most important separation-of-powers ruling of the twenty-first century—and, by far, the most important decision of the current term. It embraces a remarkably strong form of the unitary executive theory. It runs roughshod over a heck of a lot of sophisticated, persuasive scholarship arguing that Founding-era understandings were far more nuanced and complicated about the sharing of power across the branches. It doesn’t distinguish inferior officers, civil servants, or administrative adjudicators; it merely asserts that it isn’t resolving the constitutionality of protections for those executive branch employees—even though, as Justice Sotomayor’s dissent points out, it isn’t at all clear why its analysis wouldn’t cover them, too. It makes all kinds of absolutist claims without even trying to persuade readers that the simultaneous carve-out for the Federal Reserve adopted in Cook is somehow consistent with that absolutism. And it does all of this at the exact moment in American history in which the most troubling implications of the unitary executive theory have never been more visible or immediate.

I saw lots of folks claim online yesterday that Slaughter is a good thing (or, at least, that it has a silver lining) because it will make it easier for the next Democratic president to simply clean house—and fire many, if not most, individuals who were appointed/hired/installed by President Trump. That may be true in the short term, but that comes at the enormous expense of (1) Congress, which will find itself increasingly hamstrung in trying to exert any control over how the executive branch exercises the powers Congress authorizes and delegates; and (2) the American people, who will find themselves subject to executive branch agencies doing the bidding of the incumbent administration rather than the goals Congress set for them by statute. That may feel good when we like the current administration, but it’s a recipe for instability and for the elimination of expertise in almost every facet of governmental regulation. And in the interim, it also gives even more power to the courts (the Supreme Court, in particular), to sort out all of the subsidiary questions that Slaughter has already raised.

Cook, in contrast, is a footnote. It’s a major ruling for Wall Street because of how it carves out the Fed, but that writing has been on the wall since last May. And it is a decidedly modest win even for Cook herself—who could still easily lose on remand if the administration actually has meaningful evidence of misconduct or malfeasance on her part. All the Court held yesterday is that for-cause removal requires more than just the executive branch’s assertion that cause exists, and so Trump isn’t entitled to a stay of a lower-court ruling that blocked Cook’s removal. That’s a (potentially fleeting) win for Cook, but about as modest and thin a victory as the Court could’ve provided—and even that was 5-4.

II. Barbara Won’t Change the Broader Narrative of the Term

Turning toward today’s decisions, there’s a remarkable degree of consensus as to how all four are likely to come out. Most Court watchers expect the Court to side with the National Republican Senatorial Committee in the campaign finance case; to side with Idaho and West Virginia (and against the transgender athletes) in the transgender discrimination cases; and to rule against President Trump in the birthright citizenship case. If that happens, the headlines will obviously gravitate toward the last of those results—and the claim that the Court delivered some kind of major smackdown to one of President Trump’s most visible immigration initiatives.

I’ll be the last person to suggest that the birthright citizenship decision won’t be important. But we should be careful not to give it outsize weight just because it comes last. By my count, birthright citizenship would be only the fourth real loss for Trump at the Court this term—alongside the Chicago National Guard ruling from December; the tariffs ruling from February; and the Lisa Cook case from yesterday. But that’s against Slaughter (which, again, dwarfs these other cases with regard to immediate and long-term importance); last week’s immigration cases; and, beyond cases in which the federal government is a party, the Court’s sustained … misadventures … with voting rights and redistricting over the last two months. With regard to the significance of these decisions, this term should go down alongside OT2021 (the Dobbs/Bruen/West Virginia term) for the volume of major victories the Supreme Court has handed down for right-coded and/or visibly Republican legal positions. That some of those positions (like in the mail-in ballots case) were too extreme for the “middle” of the Court doesn’t somehow prove that the Court is, in fact, “moderate”; it just suggests that, for as emboldened as right-wing litigants have become, the Court isn’t all the way there yet. That’s an important narrative, but it’s not one for which the justices deserve a participation trophy.

III. The Term Doesn’t Actually End Today

Finally, and to beat a drum I’ve pounded before, traditional coverage of the Supreme Court treats today as the “last day” of the Court’s term. That’s incorrect as a matter of fact—and, increasingly, as a matter of reality. The October 2025 Term doesn’t formally end until the October 2026 Term begins—when the Court gavels into session on Monday, October 5. Today just marks the end of the Court’s disposition of cases argued during the current term.

Not that long ago, that might’ve been a distinction without a difference. But as the emergency docket has become more significant and more active, the summer has become an increasingly significant part of the Court’s work, too. My rough math counts nine significant decisions by the full Court on emergency applications last summer—from Boyle and Slaughter on who President Trump could fire to Vasquez Perdomo on ICE raids to … well, you get the gist. It’s hard to imagine that this summer will be quite as busy as last summer (given how much less active President Trump’s pen has been), but it’s also hard to imagine that it will be as quiet as the summers that typified the Court’s docket as recently as a decade ago. As I wrote last fall, we shouldn’t really “close the book” on the Court’s term until the term, you know, ends.

I’ll be covering today’s decisions in real time for paid subscribers through Substack’s chat feature; and later today in the next “Decision Day” video feature. And, of course, we’ll have our regular “bonus” issue on Thursday and our full coverage of the Court next Monday. What can I say? I have no life (especially with the girls off at summer camp).

If you’re not already a subscriber, or if you’re in a position to upgrade to a paid subscription, I hope you’ll consider doing so:

Subscribe now

As always, stay safe out there, y’all.

As I noted a few weeks back, we’re launching a new feature, from now until at least the end of this term, where every day that the Supreme Court hands down a ruling in an argued case, we’ll be providing a short video summary of what the case was about, what the Court ruled, and what (if any) broader significance the ruling has going forward.

Today…

Read more

Share

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, please consider becoming one—and upgrading to a paid subscription (for which we just launched new bonus features) if your circumstances permit:

Subscribe now

A lot of the focus on last week’s Supreme Court rulings has gravitated toward Mullin v. Doe (the “Temporary Protected Status” or “TPS” cases), and for good reason. There’s quite a bit to say about Justice Alito’s whitewashing of President Trump’s racism toward Haitians (much of which was said by Justice Kagan in her dissent, and also by Adam Serwer in The Atlantic), and, more generally, about picking this moment in American history to read ambiguous language in a statute to foreclose judicial review of statutory challenges to executive branch decisions that directly implicate, as in the Haiti case, the lives and livelihoods of hundreds of thousands of individuals.

But I wanted to use today’s “Long Read” to pick up on a piece of Justice Alito’s opinion that hasn’t gotten a lot of attention—Part III-A, in which he purports to explain why the Court could reach the merits of the plaintiffs’ constitutional challenge to the revocation of TPS for Haiti (that it was motivated by unconstitutional racial animus) without deciding if it had jurisdiction to do so. Hard though it may be to believe, this may be the most transsubstantive part of the decision—even though it’s also the most technical. (Major kudos to my former Civil Procedure student—and rising Georgetown 2L Paul Michaud—who flagged this passage before I’d focused on it.)

Across four (very-lightly-cited) paragraphs, Alito argues that, when appellate courts are reviewing grants or denials of “interim” relief (including, one presumes, grants or denials of emergency relief), they can reach the merits without resolving whether they have jurisdiction to do so—at least so long as it doesn’t affect the outcome (that is, so long as the party that would’ve won on jurisdiction also wins on the merits).

This theory has a name: “hypothetical jurisdiction.” And it has been emphatically and repeatedly rejected by the Supreme Court ever since Justice Scalia’s 1998 opinion for the Court in Steel Co. v. Citizens for a Better Environment. To adopt it in the context of “interim” or “emergency” relief is not only impossible to reconcile with the entire theory of Steel Co., but would empower the Supreme Court (and courts of appeals) to be even more aggressive when it comes to emergency relief by empowering them to grant relief in contexts in which they literally lack jurisdiction to do so. Indeed, Alito’s opinion has echoes of his March concurrence in the Malliotakis case—where he offered a highly problematic explanation for why the justices could reach all the way down to stay a state trial-court ruling before the state supreme court had had a meaningful opportunity to do so.

Alito was wrong then, and he’s even more wrong now. That may explain why Justices Gorsuch and Barrett didn’t join this part of the opinion (which thus spoke only for a four-justice plurality of the Court), but it’s more than a little disturbing that both Chief Justice Roberts and Justice Kavanaugh, who often claim to be sticklers about such things, did.

More on why this is such a big deal below. But first, the (loads of other) news.

On the Docket

The Merits Docket

The Court handed down nine rulings on the merits docket last week (this is one of the challenges of trying to provide comprehensive coverage of the Court in late June; there’s just too much to cover). I’m going to reduce those rulings to incredibly superficial summaries here, but I hope to come back to many of them in future issues. (There’s also Thursday’s “Decision Day Summaries” video for paid subscribers.) And I’m putting in bold the names of the seven of the nine rulings that sorted the justices into their (alas, far-too-usual) 6-3 ideological/political camps:

1. Cisco Systems, Inc. v. Doe: In a 6-3 ruling written by Justice Barrett, the Court dramatically narrowed the scope of the Alien Tort Statute, holding that it reaches only the narrow set of international-law claims Congress recognized when it enacted the statute in 1789. Justice Sotomayor’s dissent objected that the decision “closes the courthouse doors” to virtually every future victim of even the most egregious human rights violations, even those for which U.S. corporations are responsible. An 8-1 majority (everyone except Justice Sotomayor) also held that the Torture Victim Protection Act of 1991 doesn’t authorize aiding-and-abetting liability—making it harder to sue defendants who provide indirect support for torture.

2. Exxon Mobil Corp. v. Corporación Cimex, S. A. (Cuba): For the same 6-3 majority, Justice Kavanaugh held that the Helms-Burton Act abrogates the sovereign immunity of Cuban agencies and instrumentalities, so plaintiffs suing those entities under the Act need not separately satisfy one of the Foreign Sovereign Immunities Act (FSIA)’s enumerated exceptions. Justice Kagan wrote for the three Democratic appointees in arguing that the better reading of the relevant statutes (and the Court’s foreign sovereign immunity jurisprudence) is that the FSIA’s exceptions should still govern.

3. Landor v. Louisiana Dep’t of Corrections and Public Safety: I already covered Justice Gorsuch’s deeply significant opinion for the same 6-3 majority in last Thursday’s bonus issue—so I won’t rehash that here.

4. Pung v. Isabella County: Justice Alito wrote for an effectively unanimous Court in holding that the proper baseline for “just compensation” after a fairly conducted tax-foreclosure sale is the auction sale price rather than the property’s hypothetical fair market value, and that the Eighth Amendment’s Excessive Fines Clause does not require the government to return more than the surplus proceeds.

5. Blanche v. Lau: For the usual 6-3 majority, Justice Thomas cleared the way for immigration officers to more readily treat returning lawful permanent residents (green card holders) as applicants for admission—holding that the Immigration and Nationality Act does not require clear and convincing evidence that a green-card holder committed a disqualifying crime before doing so. Justice Jackson wrote for the dissenters, arguing that the ruling will let the government strip returning residents of their admitted status first and justify that decision later—undermining the statutory protections attached to lawful permanent residence. NYU law professor Nancy Morawetz has much more about what she describes as the Court’s “highly disingenuous” ruling here.

6. Monsanto Co. v. Durnell: For a 7-2 majority, Justice Kavanaugh held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts a state-law failure-to-warn claim that would have required Monsanto to add a cancer warning to Roundup’s EPA-approved label. Justice Jackson dissented, joined by Justice Gorsuch, objecting that the preemption ruling wrongly forecloses state tort remedies for injured plaintiffs by reading into the statute preemptive effects that Congress could never have reasonably intended.

7. Wolford v. Lopez: For the usual 6-3 majority, Justice Alito struck down under the Second Amendment Hawaii’s “no-carry default” law, which made it a crime for concealed-carry permit holders to bring firearms onto private property open to the public without the property owner’s express consent. Justice Jackson’s principal dissent argued that the Hawaii law simply applies the property-law “right to exclude” and does no harm to the Second Amendment. More generally, the dissent went to some length to argue that the Court has inserted even more subjectivity into the deeply controversial (and malleable) “history and tradition” test for Second Amendment claims that it first articulated in Bruen. Indeed, Wolford’s significance is probably more about how the majority explains the Bruen test than its specific application here, but it’s a big deal either way.

8. Mullin v. Al Otro Lado: For the usual 6-3 majority, Justice Alito held that a noncitizen who is stopped at a port of entry in Mexico does not “arrive in the United States,” so the Immigration and Nationality Act neither entitles such a person to apply for asylum nor requires an officer to inspect him—allowing officials to turn back asylum seekers at the southern border. Justice Sotomayor wrote for the dissenters, warning that the consequences for asylum-seeking refugees would be “predictable” (including that “more people will die,” and that “more people will attempt to cross the border illegally, and some will make it while others will not”). Of especial note, Sotomayor read parts of her dissent from the bench—which prompted an unprecedented verbal retort from Justice Alito. As NPR’s Nina Totenberg reported, Alito said “There is much that I would have added to my bench statement had I known there would be a dissent read.” He then offered a short, extemporaneous rebuttal—something that … doesn’t happen. On Friday, the Court issued a statement to NPR—that “Justice Alito was notified in advance by Justice Sotomayor’s chambers that she would be reading a dissent from the bench. It was a misunderstanding on Justice Alito’s part.” It was also a highly unusual breach of protocol—and, not for nothing, gives us yet another example of why the Court should be live-streaming its opinion hand-down announcements; sometimes, the announcements themselves are newsy.

9. Mullin v. Doe: The last of Thursday’s rulings was also, in my view, the most significant. Writing again for the same majority, Justice Alito held that the TPS statute’s bar on judicial review is broad and plain, so courts cannot postpone the terminations of TPS based on even meritorious statutory objections to the government’s behavior. As for the Haitian plaintiffs’ constitutional objection, the same majority held that the plaintiffs had failed to establish that the government’s actions toward Haiti were based on race. Justice Kagan, who was joined in full by Justices Sotomayor and Jackson, wrote a strident dissent—objecting that the statute still permits review of whether the Secretary followed mandated procedures; that the evidence of racial animus in the Haitian case was manifest; and that “hundreds of thousands of lives will be uprooted” while the litigation proceeds. More on Doe in a moment.

Just one overarching note about all of these rulings: Even before the final eight decisions this week (as many as five of which, I fear, could split the justices the usual way), last week’s rulings brought to 12 the number of 6-3 rulings from the Court in cases argued this term, 10 of which had the Republican appointees in the majority and the Democratic appointees in dissent. That’s already three more than last term (and the number will go up), without even getting to the emergency docket. However we define “big” cases, and whichever cases we do and don’t count, any claim that the defining characteristic of the Supreme Court isn’t this 6-3 split is an increasingly tired canard.

The Court also handed down yet another summary reversal as part of last Monday’s Order List—its ninth(!) of the term, and another ruling from which the Democratic appointees were the only visible dissenters. Specifically, in McCarthy v. Hernandez, the justices reversed a grant of federal post-conviction relief to an (infamous) New York state prisoner on the ground that it was never clear that the Court’s 2004 ruling in Missouri v. Seibert (about so-called “mid-stream Miranda warnings”) has any applicability to jury instructions.

The Emergency Docket

There were two emergency docket rulings of note last week: On Thursday, the Court denied a stay of execution (over no public dissents) to Florida death-row prisoner Dusty Spencer, who was executed later Thursday night. And late Friday afternoon, Chief Justice Roberts, in his capacity as circuit justice for the D.C. Circuit, issued an “administrative stay” of the mandate in the case of Fox News reporter Catherine Herridge, who was held in contempt for refusing to identify the government employee who leaked information to her in claimed violation of the Privacy Act. The D.C. Circuit had held on appeal that the plaintiff in the Privacy Act case had overcome Herridge’s qualified First Amendment privilege against revealing her source, and affirmed the contempt citation. Herridge is asking the Court to keep that decision on hold while she seeks plenary review. The Chief Justice ordered the plaintiff to respond to Herridge’s application by noon ET on Wednesday, so we may well get a ruling one way or the other this week.

The Week Ahead

Buckle up, because this week is going to be a doozy.

Here’s what we know for sure: The Court will hand down a regular Order List at 9:30 ET this morning. And the justices will take the bench at 10 ET to hand down some (but not all) of the eight rulings that are still outstanding in cases argued earlier this term. (We know we’re not getting all of them because the Chief Justice did not announce on Thursday that today is the last day.)

We also know two other things, albeit without the specifics. First, we know the Court will have at least (and, my guess, exactly) one more decision day—most likely either tomorrow or Wednesday. We’ll know more at the end of today’s public session, when either the Chief Justice or the Marshal will let us know when the next day is (and, if the next day is the last day). Second, we also know that the Court will hand down orders from the justices’ “Cleanup Conference” likely in the afternoon on the same day it hands down its last rulings from the bench, and no later than the following morning.

And that Order List often has a lot of quietly important stuff on it, including summary reversals; grants of certiorari for next term; and/or long-outstanding denials of certiorari, often accompanied by lengthy separate opinions. In other words, in addition to the eight remaining rulings in argued cases, the Court could (and likely will) make quite a bit of other news this week, too—before the justices head off on their summer recess.

Of course, it doesn’t have to be this way. But I digress.

The One First “Long Read”:
Hypothetical Jurisdiction and “Interim” Relief

As I (try to) teach my Civil Procedure students every fall (and then try to re-teach my Federal Courts students every spring), Article III federal courts are courts of “limited subject-matter jurisdiction,” one of the consequences of which is that they must always be assured of their own statutory and constitutional authority to resolve the case before them—authority that can neither be waived by the parties nor assumed by the judges.

For a time, some lower courts tried to get around this ironclad rule through something they called “hypothetical jurisdiction.” To be fair, the theory wasn’t crazy; imagine a case in which there is (1) a difficult jurisdictional question; and (2) an easy merits question, the resolution of which will favor the party opposing jurisdiction. It would necessarily conserve scarce judicial resources for a court to simply assume, without deciding, that it had jurisdiction—in order to quickly resolve the merits in a way that produced the same ultimate victor. Put another way, if the plaintiff is going to lose either way, and the merits issue is straightforward, why spend pages puzzling through a thorny standing or jurisdictional question?

In 1998, Justice Scalia answered that question on behalf of the Court—and he wasn’t subtle about it. Scalia’s central objection in Steel Co. was constitutional, not prudential. A court without Article III jurisdiction has no power to declare the law, so anything it says about the merits is, by definition, ultra vires. In his memorable phrase, “[h]ypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory opinion,” and the justices have rejected their authority to provide such rulings since 1793.

To be sure, Steel Co. drew one careful line—it distinguished merits questions like “does this statute create a cause of action” from true Article III questions like standing and subject-matter jurisdiction, and held only the latter must always come first. But on the core point, it was unambiguous: a court must decide whether it has subject-matter jurisdiction before it decides the merits. For 28 years, that’s been the catechism, even as lower courts have repeatedly tried to wriggle around it.1

That brings us to Thursday’s ruling in Doe. The core of Justice Alito’s opinion interpreted the relevant provisions of federal immigration law to foreclose jurisdiction over non-constitutional challenges to any decisions relating to the granting, terminating, or revoking of TPS. Thus, the district court lacked the power to block the revocations of TPS for Haiti and Syria on statutory grounds (e.g., that Secretary Noem violated statutory procedural requirements). My own view is that Justice Kagan’s dissent has the better of the statutory arguments here, but that’s for another day.

The Haitian plaintiffs (unlike the Syrian plaintiffs) also challenged Secretary Noem’s revocation of TPS on constitutional grounds—arguing that it was motivated by racial animus, and thus violated the equal protection principles the Supreme Court has read into the Fifth Amendment’s Due Process Clause. The same majority rejected that claim on the merits, but only after a … curious … passage in which Justice Alito explained why the Court could reach the merits without deciding if the courts had jurisdiction to even reach them.

Specifically, in Part III-A of his opinion, Alito purported to distinguish Steel Co. on the ground that Doe came to the Court on appeal from a grant of a preliminary injunction—that is, on review of an award of interim relief, not a final judgment. Thus, he argued, the cardinal rule from Steel Co.—that a court “may not consider the merits of a claim without first making a firm determination that it has jurisdiction”—is a rule only about final decisions. “When interim relief is sought,” he wrote, “a court does not make a final decision on any matter necessary to the ultimate judgment”; it makes “only a predictive—not a final—decision about the outcome of the case.” Because both “the likelihood that the court has jurisdiction” and “the likelihood that the claim is meritorious” feed into the same likelihood-of-success calculus, he concluded that “courts may consider both”—and “need not always start with the jurisdictional ground if the claim for interim relief would also fail on the merits.”

To me, there are four problems with this passage, in escalating order of seriousness. First, it is awfully light on authority. The only relevant citation in the entire passage is to the Sixth Circuit’s opinion in Arizona v. Biden, which … doesn’t actually analyze the question of whether federal courts can assume jurisdiction when reviewing grants of interim relief. In other words, Alito’s only external support for the distinction on which this entire section depends is an opinion that neither articulated nor defended that distinction.

Second, as Will Baude noted in a thoughtful post over at Divided Argument, Alito’s “fails on either ground” framing runs into a probability problem that becomes obvious once you put real numbers on it. Recall that, at the interim stage, a court is not deciding anything for certain; it is estimating the odds—the likelihood that it has jurisdiction, and the likelihood that the plaintiff is right on the merits. Now suppose a court thinks the plaintiff is probably right on each question, but not certainly so—say, 71% likely to have jurisdiction and 71% likely to prevail on the merits. Because those are two separate hurdles, the plaintiff’s real chance of winning might be viewed as the two probabilities multiplied together: 0.71 × 0.71, or roughly 50%. (Professor Kevin Clermont has argued against this approach to the math, but that’s for another time.) In other words, a plaintiff who is more likely than not to clear both hurdles can still be, on the whole, no better than a coin flip to actually win—and yet, under Alito’s logic, a court could grant interim relief without ever satisfying itself that it has the power to hear the case at all—and an appellate court can reach the merits based on the same math. Alito’s opinion has nothing to say about how this scenario undermines his reasoning; its entire defense rises and falls on the thinly defended assertion that appellate review of interim relief is somehow “different” from review of relief after a final judgment.

But that brings us to the deeper problem:

Third, Steel Co.’s objection to hypothetical jurisdiction wasn’t that a final merits ruling without jurisdiction is an advisory opinion while a predictive one is fine. Scalia’s objection was about power. A court that lacks jurisdiction lacks the authority to “declare the law” at all—and a prediction about the merits is still a pronouncement on the meaning of federal law, even, as in Doe, when it comes as part of an appeal from a grant of preliminary relief. Indeed, Scalia’s whole point was that even a tentative or hypothetical judgment “comes to the same thing as an advisory opinion.” If anything, an interim ruling on the merits is more exposed to that critique, because the court is opining about a legal question it may never have had the power to touch. Even if Doe were an emergency docket ruling (and it isn’t), it seems like Steel Co. should apply, at a minimum, to any ruling that might have precedential value—because the whole point is that it can’t and shouldn’t have such effects if the court didn’t actually have jurisdiction to reach the merits. (I’ll also flag that Alito’s emphasis on “interim” relief in a merits case only reinforces several of the problems with the “interim docket” renaming enterprise.)

Fourth, and most importantly, if appellate courts “need not always start with the jurisdictional ground” when reviewing interim relief decisions in the lower courts, consider how much modern litigation against the federal government, specifically, runs through exactly that posture. Preliminary injunctions, stays, TROs, administrative stays, and the Court’s burgeoning emergency docket are all “interim relief”—so this is no narrow carve-out. Instead, Alito’s opinion would open the door to the Court jumping over jurisdictional questions to reach the merits in most of the high-stakes, fast-moving cases that define this era. (And given that most jurisdiction-stripping statutes involve claims against the federal government, it would provide the justices with yet another way to rule for the Trump administration, in particular, that shouldn’t be available under current law.)

Nor is this concern limited to Doe. As I noted above, in Malliotakis, the Court granted a stay of a state trial-court injunction in a context in which it clearly did not have jurisdiction under 28 U.S.C. § 1257 (and with Justice Alito’s concurring opinion openly distorting the procedural posture to make it seem like the Court did have that jurisdiction). In a world in which Alito’s “interim relief carve-out” to Steel Co. were a thing, the Court could have granted emergency relief on the merits even if it lacked jurisdiction to do so. That is, for lack of a better term, nuts.

The asymmetry cuts in a predictable direction. The shortcut is most useful when a court wants to deny relief to a challenger, because it can declare the claim meritless without confronting whether it ever had the power to hear it—the precise Steel Co. problem, except now the resulting pronouncements become precedents on questions like whether noncitizens have any equal protection rights at all. In that world, decisions about the scope of federal judicial power and the substance of constitutional rights will get made more often in the hurried, lightly-reasoned setting that emergency litigation invites. In other words, Part III-A of Doe would give the Court even more power not just in preliminary relief appeals, but on the emergency docket, because the formal constraints on its power would become less dispositive.

The good news is that Justices Gorsuch and Barrett, who joined every other word of Alito’s opinion in Doe, didn’t join Part III-A. That creates a bit of a lacuna, since neither explained how or why the Court could hold what it held in Part III-B, even though they must have had some theory for why there was jurisdiction to reach the merits of the Haitian plaintiffs’ equal protection claim. (That theory might have been difficult to articulate, since it’s hard to read the same statute to foreclose statutory claims but allow constitutional ones, and the only alternative would be a much more significant claim that the statute is unconstitutional insofar as it forecloses judicial review of constitutional challenges.)

But it also means, for now, that Alito’s attempt to revive hypothetical jurisdiction in Doe is not binding precedent on the lower courts. It shouldn’t be persuasive authority, either—because it just isn’t persuasive.

We’re already approaching the length limits of a Substack post, so we’ll skip the trivia for this week. Even without trivia, 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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue will drop on Thursday, although it’s hard to imagine there won’t be another post before then. As ever, I hope you all stay safe out there—especially from what’s coming over the next few days.

As I noted a few weeks back, we’re launching a new feature, from now until at least the end of this term, where every day that the Supreme Court hands down a ruling in an argued case, we’ll be providing a short video summary of what the case was about, what the Court ruled, and what (if any) broader significance the ruling has going forward.

Today…

Read more

To be sure, I understand why decisions like Cisco Systems, Inc. v. Doe, Landor v. Louisiana Department of Corrections and Public Safety, and Blanche v. Lau don’t get the same coverage as the soon-to-drop (perhaps as early as this morning) rulings in Slaughter, the birthright citizenship case, and so on. But I want to use today’s bonus post to argue that Landor is actually a massively important holding with constitutional dimensions—one that reflects the culmination of a long-term conservative legal project to weaken one of Congress’s most important regulatory powers; one that comes at the direct expense of private individuals for whom Congress has expressly created an array of federal statutory rights; and one that, as Justice Jackson’s dissent details, is remarkably difficult to justify on almost any analytical terms. The idea that the Court is disempowering Congress is hardly a new one. But the shamelessness of Justice Gorsuch’s majority opinion in Landor is exasperating, to say the least.

The dispute in Landor began when a Louisiana state prisoner, Damon Landor, brought with him a copy of a Fifth Circuit decision holding that, under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), Rastafarian inmates had a right to keep their dreadlocks. One prison guard took the ruling and threw it in the trash; two others seized Landor and shaved his head. One would think the Supreme Court would be a little more wary about letting state officials literally throw lower-court rulings in the trash (before metaphorically trashing them). One would be mistaken.

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

Read more

Share

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, please consider becoming one—and upgrading to a paid subscription (for which we just launched new bonus features) if your circumstances permit:

Subscribe now

Somehow, the Supreme Court avoided making a lot of news last week—which means we should buckle up not only for this week, but also, as I explain below, for next week, too. But the Court’s relative quiet gives me an opportunity to write about one of the more substantively outlandish (and alarming) filings we’ve seen from the Trump Justice Department—and boy is that saying something: the motion to intervene (for the purposes of moving to dismiss) it filed last Monday in NAACP v. x.AI Corp. In that case, the NAACP is suing xAI under the Clean Air Act because the company allegedly built and is operating dozens of methane gas-burning turbines—27 at the time of filing; more than twice as many today—to power its Colossus 2 data center in Southaven, Mississippi, exposing nearby, predominantly Black communities to harmful emissions, and all without obtaining the air permits or pollution controls the Act requires for major sources of pollution.1

DOJ’s filing is remarkable in at least three respects. First, it argues that the NAACP’s suit threatens “American national, economic, and energy security by seeking to shut off the power supply for artificial-intelligence innovation that supports the Department of War’s military operations”—pointing to the military’s reliance on xAI’s Grok model for national security missions, including recent strikes against Iran.

Second, and even more significantly, it objects to all “citizen suits” under the Clean Air Act on constitutional grounds—claiming that decisions about whether to enforce federal law rest exclusively with the executive branch and cannot be overridden by a private citizen suit, even one Congress has expressly authorized. Thus, in addition to having the right to intervene in citizen suits brought under the Clean Air Act, DOJ claims the right to unilaterally have such suits dismissed. Third, and most gallingly, DOJ is making this argument in a context in which it is making no argument that xAI is acting legally. In other words, the central premise of DOJ’s submission is that xAI can be flagrantly breaking the law (and heavily damaging the environment), and only the executive branch of the federal government has the constitutional authority to do anything about it.

Needless to say, this is (potentially) a huge deal—and turns what was already a massively significant environmental fight over data centers and the corners companies are cutting to power them into an even bigger referendum on the question of who Congress can authorize to enforce the statutes it enacts.

More on that below. But first, the news.

On the Docket

The Merits Docket

The Court handed down (only) three more rulings in argued cases last Thursday, none of which were in any of the “big” cases for which we’re still waiting (more on those in a moment):

1. In United States v. Hemani, Justice Gorsuch wrote for a unanimous Court that the Second Amendment bars the federal government from prosecuting Ali Hemani—a Texas man who used marijuana a few times a week and kept a legally purchased gun at home—under the federal law that makes it a crime for an “unlawful user” of a controlled substance to possess a firearm. Justice Gorsuch rejected what he called the government’s “ambitious theory” that mere drug use could automatically strip someone of their Second Amendment rights—while pointedly leaving the door open to prosecutions on different facts. That narrowness may help to explain the Court’s unanimity, but beneath the surface, there are some real divisions here—led by Justice Jackson’s (in my view, persuasive) observation that cases like these prove that the framework of the conservative majority’s 2022 ruling in Bruen is wholly “unworkable.” (There’s also a rare two-justice concurrence in the judgment by Justice Alito that was joined by … Justice Kagan.) If nothing else, it’ll only be a matter of time before the Court has to confront the harder questions it ducked here—about exactly when the government can prohibit gun possession based on a defendant’s other behaviors.

2. In Hunter v. United States, Justice Kagan held for an 8-1(ish) majority that a defendant’s agreement to give up his right to appeal his sentence—a standard feature of countless plea deals—isn't always the last word. Rather, such an appeal waiver becomes unenforceable when honoring it would produce a “miscarriage of justice,” meaning defendants can in some circumstances challenge a sentencing condition despite having signed away their appeal rights. There were lots of separate concurrences here (and a dissent by Justice Thomas). The upshot is that the justices don’t all agree on how a defendant can establish the circumstances in which an appeal waiver will be unenforceable, but eight of them agree that such a showing is possible.

3. Finally, in a case only Federal Courts professors could love, a very unusual 5-4 majority in T.M. v. University of Maryland Medical System Corporation held that the “Rooker-Feldman doctrine” (a previously hyper-narrow rule that bars lower federal courts from hearing lawsuits that are tantamount to appeals of adverse state-court rulings by the party that lost in the rare circumstances in which ordinary preclusion doctrines don’t bar them) applies even when further proceedings in the state court are pending and/or possible. Justice Barrett’s dissent was joined by Chief Justice Roberts, Justice Kagan, and Justice Gorsuch. And I’ll confess to thinking that it has the better of the (nerdy, technical) arguments here.

Beyond those three rulings, the only other action on the merits docket last week came in Monday’s Order List, which included grants of certiorari in three new cases for next term, and two dissents by Justice Alito from denials of certiorari.

The Emergency Docket

There were no full Court rulings on emergency applications last week. But there are a pair of applications pending before the Court in which plaintiffs challenging Texas’s social media age verification law are asking the justices to put back into effect a district court injunction that had blocked a sweeping, new Texas law requiring age verification and parental consent for just about every mobile app (and app store) that’s accessible from anywhere in Texas. The Fifth Circuit had stayed the district court’s (pre-enforcement) injunction pending appeal, and the applicants are asking the justices to vacate that stay. Texas’s response to the applications is due by 4 p.m. (ET) today, so we may well get a ruling sometime this week.

The Week Ahead

Speaking of this week, we expect a regular Order List at 9:30 this morning. And the Court has already announced that it is expecting to take the bench to hand down more rulings in argued cases both tomorrow (Tuesday) and Thursday. We also know, because of what the Court did not say, that Thursday will not be the last hand-down day of the term. Given that there are still ~17 rulings to go, my best bet is that the Court will hold at least two more hand-down sessions after Thursday—probably across some combination of this Friday, next Monday, and next Tuesday. But all we know for now is that (1) we’re getting decisions Tuesday and Thursday; and (2) we’re almost certainly going into early next week before the Court rises for its summer recess.

The One First “Long Read”:
DOJ’s Limitless Arguments in the xAI Case

In trying to think about how to explain the importance of the xAI case, I was struck by how Earthjustice’s Laura Thoms (who used to work for the Department of Justice’s Environmental and Natural Resources Division—“ENRD”) opened her own piece in “The Watershed”:

Imagine living next to a factory that dumps waste into the river behind your house to save on treatment costs. Or a refinery that shuts off its pollution controls because no one is checking. You don’t need to care deeply about environmental laws to know that’s wrong. And you don’t need to be a legal expert to know that if you break the law, there should be consequences.

But the consequences for polluting are vanishing since Trump returned to office. And this week, his administration took an unprecedented step to derail environmental enforcement.

On the surface, the underlying dispute in NAACP v. x.AI Corp. is about gas turbines in northwestern Mississippi—the kind of dispute that tends not to receive national attention. But the legal theory the government is advancing reaches far beyond one (massive) data center and the power plants being built to power it. It is an Article II argument—rooted in the President’s duty to “take Care that the Laws be faithfully executed”—that, taken to its logical limits, would give the executive branch unilateral authority to shut down any citizen suit under any environmental statute, against any defendant, whenever the government decides that non-enforcement better serves its policy goals.

That claim, if accepted, would rewrite the enforcement architecture of the Clean Air Act, the Clean Water Act, RCRA, the Safe Drinking Water Act, and every other statute that contains a citizen-suit provision. It is a change not just in one case or one area of law, but in the basic relationship between the government, private industry, and the communities that have relied on these provisions as a last resort for half a century.

As always, let’s start with the facts: On April 14, the NAACP and its Mississippi State Conference sued x.AI Corp. and its wholly owned subsidiary, MZX Tech LLC, in the U.S. District Court for the Northern District of Mississippi, where the case landed before Chief Judge Debra Brown. The complaint is not exotic. It alleges that xAI built and is operating dozens of natural-gas turbines—27 when the suit was filed, and by the plaintiffs’ more recent count as many as 60—to power its “Colossus 2” data center in Southaven, just across the state line from Memphis, without ever obtaining the permits the Clean Air Act requires before such a facility may be built or run. By skipping the permitting process, the plaintiffs argue, xAI also evaded the “best available control technology” determination that federal law demands of major new pollution sources. The turbines, the complaint contends, are likely the single largest industrial source of nitrogen oxides in the greater Memphis area—pollution that falls hardest on a surrounding population that is disproportionately Black.

The plaintiffs’ cause of action is the Clean Air Act’s citizen-suit provision, 42 U.S.C. § 7604, under which the plaintiffs sent the statutorily required notice of intent to sue in February before filing in April. The relief they seek is similarly conventional: an injunction barring continued operation of the turbines until xAI obtains the necessary permits and pollution controls, civil penalties of up to roughly $124,000 per day of violation payable to the Department of the Treasury, and measures to offset the public-health harm in the interim. xAI’s defense, for its part, leans on a letter from Mississippi regulators telling the company that its “temporary” and “mobile” turbines did not require a permit at all—a reading of the law the plaintiffs insist is a loophole that simply does not exist. One need not be an environmental lawyer to understand that a state can’t give a private party permission to violate federal law.

Enter the United States.

On June 15, DOJ filed a 33-page motion not to weigh in as a friend of the court, but to intervene in the case—and, having intervened, to have the entire suit dismissed with prejudice. DOJ offered two justifications, and it is worth separating them, because they operate at very different levels. The first is national security. Supported by a sworn declaration from Cameron Stanley, the Pentagon’s chief digital and artificial-intelligence officer, the government argues that xAI’s Grok “Gov” model (the same one that appears to be responsible for the strike on an Iranian school) is one of only four AI systems that support mission-critical operations on classified networks, and that forcing the turbines offline would therefore “directly threaten ongoing national security interests.” ENRD wrapped this in the language of economic and energy security too, casting the NAACP’s suit as a threat to “the largest private investment in Mississippi’s history,” a claim that shouldn’t matter, of course, if that investment is responsible for blatant, ongoing violations of federal law.

But it’s the second justification that has turned this case into a bellwether: DOJ also argues that the Clean Air Act gives the United States a freestanding “right of dismissal”—that it may intervene in a citizen suit at any time and, once in, is “entitled to dismiss the entire action.” And it dresses this claim up in constitutional clothing: the “best interpretation” of the statute, the government says, is the one that “ensures the Executive Branch retains its primacy over the enforcement of federal law,” which is “also necessary to avoid grave constitutional problems with the statute’s citizen-suit provisions” under Article II. xAI has gone further still, arguing outright that the citizen-suit provision is unconstitutional because it vests federal law-enforcement power outside of the executive branch.

All of this is novel and troubling—and the two are closely connected.

As Erika Kranz of Harvard’s Environmental and Energy Law Program has documented, this is the first time the United States has intervened in a citizen suit against a private defendant for the purpose of arguing that the suit must be thrown out. And Kranz would know; like Thoms, she’s a former ENRD lawyer. History aside, it’s easy to see why this move is novel: the statute bars citizen suits only when the government “has commenced and is diligently prosecuting a civil action.” In other words, the entire structure presupposes that the government displaces private enforcement only by enforcing, not by choosing to do nothing and then slamming the courthouse door behind it. What DOJ is asserting is the mirror image of that design. It is not saying “we’ll take it from here.” It is saying that because it has chosen to do nothing, and because Mississippi has chosen to do nothing, the people breathing the air are required to do nothing, too.

DOJ’s strongest precedent only underscores how far it is reaching. It leans heavily on United States ex rel. Polansky v. Executive Health Resources, the 2023 Supreme Court decision holding that DOJ may intervene in and dismiss a False Claims Act qui tam suit over a whistleblower’s objection. But the analogy collapses on a single structural difference. In a qui tam action, the relator files in the government’s name, asserts the government’s injury, and recovers (a percentage of) the government’s money. In every respect, the claim in an FCA case belongs to the sovereign; Polansky simply held that the sovereign can reclaim a claim that belonged to it in the first place. When the NAACP sued xAI, it filed in its own name, asserted its members’ own injuries—nitrogen oxides in their lungs, elevated cancer risk in their neighborhoods—and sought an injunction to stop ongoing illegal pollution. The claim belongs to the plaintiffs. It has never belonged exclusively to the executive branch. The Clean Air Act, by statute, may bar such private suits when the government has chosen to prosecute. But other than that, it authorizes private citizens to bring their own claims in their own names. That’s never been thought to implicate Article II before.

To import Polansky here is to smuggle in the premise that defeats the analogy: that citizen suits are really the government’s cases in disguise. And if courts accept that premise, the consequence is immediate—every citizen suit filed under every environmental statute would become, in effect, a provisional enforcement action that proceeds only at the pleasure of the executive, subject to termination the moment the White House decides a defendant is more useful if left alone. They are not the government’s cases. That is the whole point of having a citizen-suit provision in the first place.

That is the through-line connecting the two halves of the motion. The national-security declaration is doing rhetorical work: it supplies the emergency that makes a breathtaking legal claim feel reasonable, even necessary. Strip away Grok and Iran, and what remains is the raw constitutional argument I flagged above—executive primacy over enforcement, full stop. If it prevails, the consequences won’t be limited to DeSoto County. The next beneficiary need not be a trillionaire’s AI company; it could be any polluter with a friend in the White House. The “veto power” the NAACP’s lawyers warn about is not a slippery slope; it’s a straight fall to the bottom.

Nor are the stakes here abstract. In the 1980s, when Massachusetts officials violated the Clean Water Act by allowing raw sewage to flow into Boston Harbor—and regulators did nothing—it was a citizen suit that forced the cleanup of one of America’s most polluted waterways. More recently, when ExxonMobil’s massive Baytown, Texas, refinery complex racked up more than 16,000 days of Clean Air Act violations over eight years—self-reported violations that the Texas Commission on Environmental Quality met with slap-on-the-wrist penalties—it was a citizen suit, brought by Environment Texas and the Sierra Club, that ultimately produced a record $14.25 million penalty and forced the company to answer for millions of pounds of unauthorized toxic emissions. That fifteen-year case went all the way to the Supreme Court, which declined to hear Exxon’s final appeal in June 2025. In both cases, the government had chosen not to enforce. Under the DOJ’s theory in NAACP v. x.AI Corp., those important and ultimiately successful private suits could have been killed with a single DOJ motion.

Ultimately, the Trump administration is asking a federal court to hold that the government’s unwillingness to enforce the law is itself a reason no one else may. That is not a national-security argument, however it is packaged. It is a claim about who gets to hold power accountable—and the answer the government is offering, for the first time in the citizen suit’s half-century history, is “only us, and only when we choose to.”

The most immediate response is, and ought to be, doctrinal. Chief Judge Brown should reject the DOJ’s motion to dismiss. No court has ever accepted the theory the government is advancing. As the Harvard EELP analysis notes, no court has held that the executive’s decision not to enforce displaces a citizen plaintiff’s congressionally created right to sue. District courts have uniformly upheld citizen-suit provisions against Article II challenges. And the text of Section 7604 answers the question on its own: a citizen suit is barred only when the government “has commenced and is diligently prosecuting a civil action.” The government has not commenced anything here. It has done the opposite.

But one district-court ruling will not end this—especially when, as seems inevitable, this case and/or these questions reach the Fifth Circuit. The broader Article II theory—that citizen suits impermissibly vest enforcement power in private hands—has been percolating in academic commentary and amicus briefs for years. This administration has now adopted it as its own. It therefore may be only a matter of time before this argument makes it to the Supreme Court, whether in the xAI case or elsewhere.

That means Congress has a role. It could amend Section 7604(c)(2) to say expressly what its structure already implies: the government’s right to intervene does not include a right to seek dismissal, and a decision not to enforce does not preempt a private action. A parallel fix across the Clean Water Act, RCRA, and every other statute with an identical provision would close the statutory door for good. Of course, that assumes a Congress that … does anything. But if and when such a legislature appears, this would (and should) be an uncontentious fix.

And then there is the argument that is bigger than any statute—bigger, in fact, than environmental law altogether. The Article II theory at the heart of the DOJ’s motion does not, by its own logic, stop at citizen-suit provisions in pollution statutes. If the executive’s constitutional primacy over enforcement means it can intervene to kill a private suit Congress expressly authorized, the same reasoning threatens every statutory scheme in which Congress gave private parties an independent right to enforce federal law: whistleblower protections, civil rights statutes, consumer-safety laws, securities fraud actions. The principle is the same in each—Congress decided that private enforcement was necessary because government enforcement alone would not be enough. If Article II now means the executive can veto those private actions at will, what Congress built as a system of redundant safeguards becomes a system of executive permission slips.

It’s worth thinking about what that would mean in practice. Title VII of the Civil Rights Act lets workers sue employers for discrimination when the EEOC declines to act. The Dodd-Frank Act lets whistleblowers bring retaliation claims when their agencies will not protect them. The Fair Housing Act lets individuals and organizations challenge discriminatory practices whether or not HUD lifts a finger. In each of these regimes, private enforcement exists for the same reason it exists in environmental law: because Congress recognized that the executive branch would not always have the resources, the will, or the political incentive to vindicate the rights it was charged with protecting. If the DOJ’s theory in NAACP v. x.AI Corp. becomes law, every one of those private enforcement mechanisms could be vulnerable to the same move—an administration that disagrees with a statute’s policy goals (or just happens to like the defendant) can simply intervene, assert executive primacy, and shut the case down. The worker suing for race discrimination, the whistleblower exposing fraud, the fair-housing organization challenging redlining—all would hold their rights at the beneficence of the very branch whose failures made private enforcement necessary in the first place.

Even before January 2025, it should’ve been readily apparent why enforcement of our federal rights should not depend upon the permission—or, at least, the acquiescence—of the federal executive branch. If courts eventually hold otherwise in the xAI case, it’s scary to think of where that logic would stop, or what it would empower the executive branch to do (or, in this case, to not do). All of that would be problematic enough with an executive branch that took its obligation to enforce federal law seriously. But that brings us back to the one thing that DOJ’s motion never argues—that what xAI is doing is actually legal (or that DOJ will itself sue xAI if it isn’t).

We talk a lot about the Trump administration’s own lawless behavior; this is a recipe for lawlessness by any private actor the executive branch likes (or can otherwise be persuaded, whether through legal means or otherwise, to leave alone).

SCOTUS Trivia: The First, First “Federal” Court

This week’s trivia was prompted by a weird anachronism in Justice Thomas’s concurrence in the T.M. case—in which he discusses the historical origins of the idea that giving one court the power to revise the judgments of another is necessarily “appellate.” To make a long story short, Thomas suggests that the first court created under the Articles of Confederation was one chartered in 1780. But as my friend and UC-Davis law professor Carlton Larson noted, the Articles of Confederation weren’t ratified until 1781 (when Maryland became the last of the 13 states to accede), so what Congress did in 1780 couldn’t have been pursuant to the Articles.

There are two nerdy pieces of trivia here, and I wanted to briefly flag both of them. The first is that the Second Continental Congress regularly exercised authority prior to 1781 pursuant to what might best be understood as an unwritten constitution—including the 1780 chartering of the court Justice Thomas identified in his T.M. concurrence. There is a rich debate about the exact sources of legal authority on which the Continental Congress was relying when it acted prior to the formal entry into force of the Articles of Confederation; what can’t be denied is that the Articles themselves couldn’t have been it.

The second is that the court to which Justice Thomas was referring is, by all accounts, the “first” adjudicative body ever to exist under the authority of the United States government—and it predated not only the 1780 Continental Congress enactment cited by Justice Thomas, but the Declaration of Independence itself. Specifically, the story of what became known as the Court of Appeals in Cases of Capture began on November 25, 1775, when the Second Continental Congress authorized the capture of enemy prizes and decided that prize cases would be filed in state admiralty courts, with a right of appeal to Congress itself.

At first, the Continental Congress farmed these appeals out to ad hoc committees of its own members—the first named on September 9, 1776—and then to a Standing Committee on Appeals created on January 30, 1777. Eventually Congress decided that letting legislators moonlight as judges wasn’t working. So on January 15, 1780, it stood up an actual court—three judges, charged with hearing all appeals from the state admiralty courts in cases of capture. A resolution of January 24, 1780, gave it the name “Court of Appeals in Cases of Capture,” and a further resolution of May 24, 1780, swept all the appeals still pending before Congress and its commissioners over to the new distinctly federal (or “confederate”) court.

Its docket was, true to its name, all about prizes: fights over whether ships and cargo had been lawfully seized by Continental warships and other American vessels, and over what should happen to the spoils. Only five men ever sat as its judges—William Paca, Titus Hosmer, Cyrus Griffin, George Read, and John Lowell. As for its demise: once the war ended and prize litigation dried up, the court effectively stopped functioning after 1787, and it was overtaken entirely by the new federal judiciary created under the Constitution and the Judiciary Act of 1789. Fittingly, the court’s records ended up in the custody of the very institution that succeeded it—the Supreme Court of the United States—in Section 12 of the Process Act, enacted on May 8, 1792.

All of this history is re-told in a fascinating 1977 monograph by Henry Bourguignon, titled The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775–1787. As for the first federal court to open its doors under the U.S. Constitution, as I’ll explain in more detail in a future issue, that honor falls not to the U.S. Supreme Court, but to the U.S. District Court for the District of New York—which sat for the first time on Tuesday, November 3, 1789, 13 weeks to the day before the Supreme Court would first gavel into session. (This is part of why, to this day, D.N.Y.’s descendant—the Southern District of New York—is often referred to as the “Sovereign” District of New York.)

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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue 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.

As I noted a few weeks back, we’re launching a new feature, from now until at least the end of this term, where every day that the Supreme Court hands down a ruling in an argued case, we’ll be providing a short video summary of what the case was about, what the Court ruled, and what (if any) broader significance the ruling has going forward.

Today…

Read more

There’s a lot going on, both procedurally and substantively, in the Carroll cases, and I’ll get into more of the background below the fold. But to preview the two takeaways that seem especially significant to me, first, some number of justices appear to be holding Trump’s first appeal for his second—even though the cases have almost nothing to do with each other at least on the legal questions they present, and even though they’ve been holding the first one since long before anyone told them that the second one was coming. It’s more than a little difficult to imagine that this would happen if the petitioner were anyone other than President Trump.

And second, regardless of what ultimately happens in either case, the Court’s behavior provides yet another reminder of how much of the Court’s internal processes (like its discretion to perpetually “reschedule” a cert. petition without ever explaining why it did so) are effectively inscrutable to anyone outside the building. Not for the first time, you need a heck of a lot more than a scorecard to identify all the players.

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

Read more

Share

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, please consider becoming one—and upgrading to a paid subscription, for which we just launched new bonus features, if your circumstances permit:

Subscribe now

The Supreme Court did something on Thursday that it hadn’t done in more than five years: it denied a “state-on-top” emergency application in a capital case (where a state asks the Court to un-block an execution that a lower court had put on hold). Indeed, according to data compiled by the Death Penalty Information Center, since Justice Kavanaugh joined the Court in October 2018, the Court had granted 21 of 23 such requests prior to Thursday—including as recently as May 14, when the Court granted Texas’s request to unblock an execution in Guerrero v. Busby, over public dissents from Justices Sotomayor, Kagan, and Jackson.

This time around, Justices Thomas, Alito, and Gorsuch were the public dissenters. But, like the majority in Lovelace v. Lee, they didn’t explain their votes, either. All of that raises the question of why, if the Court has been all-but-reflexively granting these requests when brought by states, it denied this one? As I explain below, I think there are two different explanations for the outcome in Lee—one of which would have interesting substantive ramifications with regard to future method-of-execution challenges; and one of which would have interesting procedural ramifications with regard to the source of the Court’s authority to grant emergency relief in general. But because the majority didn’t write (which, as I’ve said about 1000 times before, is a problem even—if not especially—when someone like me might like the result), we can’t know which of these was doing the work. (I should note that I’m even more biased than usual, as, together with Andrew Tutt and Stanton Jones from Trial Lawyers for Justice, I filed an amicus brief in opposition to the application.)

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

On the Docket

The Merits Docket

The justices handed down three more rulings in argued cases last Thursday—although, again, none of the three were in the “big” cases we’re still waiting for:

1. In Keathley v. Buddy Ayers Construction, Inc., Justice Jackson wrote for a unanimous Court in holding that the Fifth Circuit had adopted too narrow an understanding of “judicial estoppel” in bankruptcy cases (a doctrine that generally—albeit not always—prevents a party from asserting a position in litigation that’s directly contrary to a position they took in prior litigation). As Jackson explained, to determine whether an omission of a claim in the bankruptcy context was inadvertent or mistaken for purposes of judicial estoppel, courts should look to the totality of the circumstances surrounding the omission, and not just whether the debtor had knowledge of the underlying facts or a potential motive to conceal the claim. Justices Thomas (joined by Gorsuch) and Sotomayor wrote separate concurring opinions, including Thomas’s (alarming) suggestion that the Court should reconsider the entire doctrine of judicial estoppel—an argument I hope to address in a future issue (perhaps as soon as this Thursday’s bonus issue).

2. The most significant ruling of the trio was in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., in which Justice Barrett wrote for (the usual) 6-3 majority in holding that the Investment Company Act (ICA) does not impliedly empower private parties to sue for rescission of contracts that allegedly violate the Act. As Federal Courts students learn, ever since the Court’s 5-4 2001 ruling in Alexander v. Sandoval, the Court’s conservative judges have taken a remarkably narrow view of the circumstances in which a statute can be implicitly read to allow for private enforcement—even statutes written before Sandoval, and even when the absence of a private cause of action would leave the statute largely unenforceable. In one sense, FS Credit Opportunities is just another example of that phenomenon. But it’s even richer for the pretty substantial debate between Justice Barrett’s majority opinion and Justice Jackson’s dissent over the sources courts can and should consider when interpreting ambiguous statutory language; indeed, for those curious about the debate over the virtues and vices of textualism, this is a pretty accessible and fascinating example.

3. Finally in Abouammo v. United States, Justice Kagan wrote for a unanimous Court in holding that federal prosecutions for falsifying official records under 18 U.S.C. § 1519 must be brought in the district where the falsification occurred; they cannot be filed in a different district where the investigation was located—because no “conduct constituting the offense” happened there. Although no one will likely be especially interested in this specific result, it could have consequences for efforts by prosecutors in other false-statement cases to manipulate venue.

Last Monday’s regular Order List also brought with it a quietly important move on the merits docket in American Gas Ass’n v. Dep’t of Energy. In that case, the D.C. Circuit had rejected a challenge to Biden-era energy efficiency standards for consumer furnaces and commercial water heaters. But rather than repeal the rules, the Trump administration simply abandoned the government’s defense—noting in its brief in the Supreme Court that, “Following the change in Administration, the government agrees with [petitioners’] contention,” and recommending that the Court “GVR” (grant certiorari, vacate the D.C. Circuit’s decision, and remand for reconsideration in light of the government’s changed position). And that’s exactly what the Court did.

To be sure, this is hardly the first time that the Justice Department has pulled this move (refusing, after an intervening change in administration, to defend a judgment that its predecessors won below). But (1) the Court often makes hay out of such shameless changes in position; here, it just meekly complied; and (2) this is a good illustration of a broader point I’ve made before—that there’s a class of “GVR” orders that are a heck of a lot more substantive than just sending a case back in light of an intervening Supreme Court decision.

The Emergency Docket

Other than the Alabama case (about which more in a moment), it was a relatively quiet week on the emergency docket.

The Week Ahead

We expect another regular Order List (out of last Thursday’s Conference) this morning at 9:30 ET. As of now, the Court’s only other scheduled business is its public, non-argument session on Thursday—in which it is expected to hand down one or more rulings in argued cases. By my count, we’re down to 19 merits cases (plus the Lisa Cook emergency application), at least half of which are pretty “big” cases. It’s possible the Court holds all of those for the last week-plus of the term, but the odds are also increasingly on the side of something significant coming down this week. And because Friday is a federal holiday, Thursday appears to be the only opinion day we’ll get before next week.

The One First “Long Read”:
Making Sense of Lovelace v. Lee

The Supreme Court’s jurisprudence respecting a death-row prisoner’s challenge to his method of execution rests on a doctrinal scaffold the Court has built almost entirely in (and to) the prisoner’s disfavor. It begins with the 2008 ruling in Baze v. Rees, in which a plurality led by Chief Justice Roberts upheld Kentucky’s three-drug lethal-injection protocol and announced that a method is “cruel and unusual” only where it presents a “substantial” or “objectively intolerable” risk of serious harm. Crucially, the plurality held that a State’s refusal to adopt an alternative procedure offends the Eighth Amendment only where that alternative is “feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”

Seven years later, in Glossip v. Gross, a 5–4 majority in an opinion authored by Justice Alito hardened that gloss into a freestanding pleading burden—holding that a prisoner must “identify a known and available alternative method of execution that entails a lesser risk of pain,” which the Court characterized as “a requirement of all Eighth Amendment method-of-execution claims.”

The Court completed the doctrinal structure in its April 2019 ruling in Bucklew v. Precythe, in which Justice Gorsuch, writing for another 5–4 majority (now with Justice Kavanaugh instead of Justice Kennedy), held that Baze and Glossip “govern all Eighth Amendment challenges, whether facial or as-applied,” and rejected an as-applied claim premised on a prisoner’s rare medical condition. Notably, Bucklew itself involved a prisoner who proposed nitrogen hypoxia as his alternative; the Court found he had failed to present a triable question on its viability, faulting his reliance on “reports from other states indicating the need for additional study.” The through-line of all of these cases is a comparative, alternative-driven framework that, as Justice Gorsuch put it, does not “guarantee a prisoner a painless death.”

No majority opinion has yet resolved the constitutionality of a state’s use of nitrogen hypoxia, specifically. But in a series of rulings on the emergency docket, the justices have already divided bitterly over that particular method, especially as deployed by Alabama. For instance, in January 2024, the three Democratic appointees all dissented from the Court’s refusal to block the Nation’s first execution by that procedure in Smith v. Hamm—with Justice Sotomayor’s dissent describing the protocol as “untested” and warning that Alabama had selected Smith as its “guinea pig” to “test a method of execution never attempted before,” and against a prisoner whose execution by lethal injection Alabama had already botched. Justice Kagan wrote separately, joined by Justice Jackson, faulting Alabama for failing to disclose adequate information about its new protocol and stating she would have stayed the execution to allow the Court to address that issue.

As that record has accumulated, the Democratic appointees have only gotten louder in their dissents. Last October, for instance, Justices Kagan and Jackson joined Justice Sotomayor’s eye-opening opinion in Boyd v. Hamm describing exactly what someone experiences when they are executed through nitrogen hypoxia. As she explained, “firsthand accounts from those executions reveal that nitrogen hypoxia is not at all what it was promised to be,” invoking the Eighth Amendment’s “dignity” principle and arguing that the method “risks extending the period of terror up to 140-fold.” And although Sotomayor argued (correctly, in my view), that, “it is deeply troubling to weigh the associated pain posed by the two different methods [of execution] against each other,” she conceded that “this ‘comparative exercise’ is demanded by the Court’s recent precedents,” and argued that “So long as the [alternative-method] requirement persists, however, courts must engage in this macabre weighing.”

That’s where Lee v. Lovelace comes in. Jeffery Lee is an Alabama prisoner who was convicted for his role in a 1998 double-murder (and an attempted murder). The jury voted 7-5 to sentence him to life imprisonment without parole, but the trial judge overrode that sentence and imposed the death penalty—under a procedure Alabama abandoned in 2017.

Lee brought a lawsuit challenging Alabama’s proposal to execute him by nitrogen hypoxia. After a full bench trial, U.S. District Judge Emily Marks initially ruled on May 28 that, while death by nitrogen hypoxia involves some suffering, Lee had failed to show the protocol was unconstitutional. But the Eleventh Circuit reversed, endorsing Judge Marks’s factual findings but concluding as a matter of law that Alabama’s protocol presents a "substantial risk of serious harm" and that the up-to-three-minute timeframe for losing consciousness is "intolerable." Under the Court’s precedents, it remanded for the district court to consider Lee’s proposed firing-squad alternative. On remand, Judge Marks found the firing squad to be a feasible alternative that significantly reduces those risks—and permanently enjoined Alabama from executing Lee by nitrogen hypoxia. This represented the first ruling of its kind—a conclusive, merits decision that a particular method of execution was unconstitutional even under the Supreme Court’s current jurisprudence.

After both Judge Marks and a divided Eleventh Circuit panel refused Alabama’s request for emergency relief from Judge Marks’s ruling, Alabama sought the same from the Supreme Court. And Thursday night, the Court denied Alabama’s request—over public dissents from Justices Thomas, Alito, and Gorsuch. Neither the majority nor the dissenters wrote anything, so we’re left to figure out why, given how well states have fared when seeking emergency relief in death penalty cases, this case was different. As I noted above, I see two possibilities.

The first potential explanation involves the substance of Lee’s case—and Judge Marks’s (and the Eleventh Circuit’s) fidelity to the Baze/Glossip/Bucklew line of cases. To give credit where it’s due, Lee’s lawyers—including a team of folks from Arnold & Porter led by Paige Sharpe and a cohort of public defenders—litigated his claims brilliantly, using the justices’ own doctrinal moves as the basis for Lee’s legal challenges to nitrogen hypoxia, and building a remarkable record in the district court of both the effects of nitrogen hypoxia and the availability of alternatives. For the Court to grant emergency relief to Alabama when a litigant had somehow surmounted all of the doctrinal traps the justices had themselves erected in such cases would give at least the appearance that the doctrine was simply cover for the Court’s hostility to method-of-execution challenges, and not just the Court’s good-faith application of its own view of the relevant Eighth Amendment principles.

The second potential explanation involves the unique procedural context in which Alabama’s request arose (the point on which my amicus brief focused). Most emergency applications to reach the Court seek relief from a preliminary ruling by a lower-court—to allow the party on the wrong side of that ruling to get out from underneath it while the appeal works its way to the justices. Here, Alabama was seeking relief from a permanent injunction—the equitable judgment a district court enters at the end of litigation, not the beginning.

More than that, had Alabama succeeded, the relief it was seeking (allowing it to execute Lee) would necessarily have deprived the Supreme Court of jurisdiction over its plenary appeal—since it would have necessarily mooted the case. That’s true in other death penalty contexts, of course, but my own research (with help from one of my superstar Georgetown Law research assistants, Abby Liman) uncovered no prior example of the Supreme Court granting emergency relief against a permanent injunction in a capital case—and Alabama’s reply brief (which responded to our amicus brief) didn’t identify any. As we argued, it’s one thing to grant emergency relief against a preliminary, probabilistic stay of execution entered by a district judge; it’s something else altogether to do so when that judge has permanently barred a particular method of execution at the end of trial-court litigation (and it’s not, in any sense of the term, “interim”).

Ultimately, we can’t know which of these two arguments persuaded at least two of the Chief Justice and Justices Kavanaugh and Barrett to join the Democratic appointees in voting to deny Alabama’s application. And that’s too bad, because they have pretty different consequences, going forward. The former (substantive) route would suggest that there is meaningful room for death-row prisoners to litigate methods of execution under the Baze/Glossip/Bucklew framework, and that more resources can and should be devoted to those kinds of cases.

The latter (procedural) route is, in some respects, an even bigger deal, for it suggests that there’s room to argue to the justices whose votes matter the most that, as Professor Will Baude argues in a new article, the Court really needs to peg emergency relief in all cases to whether such relief is meaningfully “in aid of [its] jurisdiction[]” under the All Writs Act. Such a reorientation of the emergency docket could have consequences far beyond method-of-execution challenges, which is yet another reason why Thursday’s (surprising) outcome in Lee could potentially be so important, and why the lack of any explanation for that outcome is, yet again, a pretty big problem.

SCOTUS Trivia: Flag Day

Yesterday was, of course, Flag Day. It was also the 83rd anniversary of one of my favorite (and, in my view, one of the most moving) opinions the Supreme Court has ever handed down—Justice Jackson’s majority opinion in West Virginia State Board of Education v. Barnette. I’ve written before about Barnette’s entire backstory (including the misspelling of the plaintiff’s family name). But I like to come back to this ruling every year, and especially these days, for what Jackson said about the First Amendment and orthodoxy.

Now more than ever, we ignore Jackson at our peril:

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Amen.

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 email me. And if you liked it, please help spread the word!

Share

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one:

Subscribe now

This week’s bonus issue 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.

That’s not just a statistical curiosity; it’s the kind of procedural shift that, if it sticks, will quietly reshape how the Court relates to the lower federal and state courts—and to the litigants whose cases get pulled into the Court’s gravitational field without the benefit of briefing, argument, or a signed opinion. As usual, the Court has not explained why it has changed its behavior so dramatically, and I’m not sure the justices could agree on an answer even privately. But as I explain below the fold, the pattern is big enough to be more than a fluke, and it may tell us something quietly important (and disconcerting) about how the justices increasingly view their role.

For those who aren’t 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.

Read more