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.

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I wanted to put out this extra post to do three things: To take inventory of what’s still pending; to explain when (and how) to expect the rest of these decisions; and to step back to identify the themes that have already defined this term—and that are very likely to shape the opinions still to come. To get us started, here’s my list of what’s left, sorted by when each case was argued (note that this list of “merits” cases doesn’t include the emergency application in Trump v. Cook, argued on January 21, which I’ll address below). There’s a key that explains the color-coding in the footnote at the end of this sentence.1

Two Big Ones Already on the Board

Before turning to what’s left, it’s worth remembering what the Court has already done, because it frames everything else. The two highest-profile decisions issued so far cut in opposite directions for the administration. In Learning Resources v. Trump, decided 6–3 on February 20, the Court held that President Trump exceeded his authority when he invoked the International Emergency Economic Powers Act to impose sweeping tariffs on nearly every U.S. trading partner—a significant defeat on one of his signature policies. Trump’s reaction was telling: he publicly called the six justices in the majority an “embarrassment,” singling out his own appointees, Justices Gorsuch and Barrett.

The other marquee ruling, Louisiana v. Callais, went the other way for the voting-rights community. By a 6–3 vote along ideological lines, the Court struck down Louisiana’s congressional map as an unconstitutional racial gerrymander (because it held that the map it was responding to did not violate Section 2 of the Voting Rights Act), with the liberal justices accusing the majority of gutting what remains of Section 2. The practical effect has already rippled outward, with Republicans in several Southern states moving to redraw maps to diminish or eliminate majority-Black districts, assisted by a trio of shadow docket moves by the Supreme Court (issuing the judgment in Callais immediately; issuing a GVR—“grant, vacate, and remand”—in the Alabama case; and then staying the injunction the Alabama court had subsequently reimposed).

Keep both of those in mind. One is a loss for Trump; one is a loss for civil-rights plaintiffs. At this early juncture, this term resists a simple “winners and losers” narrative—and that complexity is itself part of the story.

The Cases Still Pending

Here’s the inventory of the argued-but-undecided cases that, in my view, are especially important, with the core question presented in each:

Birthright citizenship—Trump v. Barbara. The blockbuster of the term. At issue is whether Trump’s day-one executive order denying citizenship to children born in the U.S. to parents who are here without authorization or on temporary visas can be squared with the Fourteenth Amendment’s Citizenship Clause or the statutes Congress has enacted to implement it. After the April 1 argument—which Trump attended in person, a presidential first—at least five and perhaps as many as seven justices appeared likely to rule against the order. But the later this drags out, the sharper we might expect any separate opinions to be.

Independent agencies—Trump v. Slaughter. Whether the for-cause removal protections shielding FTC commissioners violate the separation of powers, and whether the Court should overrule Humphrey’s Executor, its unanimous 1935 precedent permitting such protections. The smart money says the conservative supermajority sides with Trump, which would mean (most) independent agencies are no longer meaningfully independent. The harder questions will be about which agencies (like the Federal Reserve) are excepted from that rule, and how far down the executive branch hierarchy (including the civil service) it goes.

The Federal Reserve—Trump v. Cook. A close cousin of Slaughter, this emergency application asks whether the President can remove a Fed governor “for cause” based on allegations—here, of pre-appointment mortgage fraud—that Lisa Cook vigorously denies and that the record … doesn’t seem to support. At the January 21 argument, the justices seemed sympathetic to Cook, and several conservatives hinted that the Fed may enjoy more protection than other agencies—a needle the Court will have to thread both here and in Slaughter. It wouldn’t surprise me at all if these two rulings came down on the same day.

Transgender high school athletes—Little v. Hecox and West Virginia v. B.P.J. Whether state laws barring transgender girls and women from female sports teams violate the Equal Protection Clause (and, in the West Virginia case, Title IX). After the January arguments, the Court appeared poised to uphold the bans, perhaps in a single opinion (which would reduce the expected total by one). There’s also a chance that it divides these cases and dumps the Idaho case (Little) on mootness grounds.

Mail-in ballots—Watson v. Republican National Committee. Whether federal law, by defining Election Day as the first Tuesday after the first Monday in November, requires that all ballots be received by Election Day—which would invalidate Mississippi’s grace period for ballots postmarked by Election Day but arriving within five business days. A majority during the oral argument seemed ready to side with the challengers—a ruling that could reach similar laws in more than a dozen states, potentially also affecting grace periods for overseas and military voters. But this one may also go the other way—albeit narrowly.

Campaign finance—NRSC v. FEC. Whether limits on coordinated party expenditures violate the First Amendment, which would require overruling the Court’s 2001 decision in Colorado Republican. Several justices were sympathetic to the challengers at argument, and the trendline of how this Court approaches First Amendment challenges to campaign finance restrictions is … one-sided.

Temporary Protected Status—Mullin v. Doe and Trump v. Miot. Whether the administration can strip “Temporary Protected Status” protections from Haitian and Syrian nationals based upon … dubious … factual claims about the conditions in the two countries, and whether such decisions are even reviewable by the courts. The April 29 argument left the outcome genuinely uncertain. One possibility, if the Court reaches the merits (and agrees with the lower courts that there’s some room for judicial review here), is a mixed verdict—with the Court upholding the revocation for Syria but rejecting it for Haiti, perhaps in two opinions instead of one. My own bet is that this case is the most likely to go to the very last day—and that it will be messy and close.

Asylum at the border—the Al Otro Lado litigation. Whether the government’s “metering” policy of turning back asylum seekers before they reach U.S. soil violates a federal law allowing those who “arriv[e] in the United States” to apply. A majority appeared sympathetic to the administration at the oral argument, but there’s a potential mootness off-ramp that I wouldn’t sleep on.

Guns—Wolford v. Lopez and United States v. Hemani. In Wolford, whether Hawaii’s requirement that gun owners obtain advance permission to carry on private property open to the public violates the Second Amendment; a solid majority seemed skeptical of the law. In Hemani, whether a federal ban on gun possession by users of illegal drugs survives—a law less likely to fall. Both of these cases are more likely to be applications of the Court’s rulings in Bruen and Rahimi, rather than significant shifts in the doctrine.

Religious liberty—Landor v. Louisiana. Whether a Rastafarian prisoner whose dreadlocks were forcibly shaved can sue prison officials for money damages under a federal antidiscrimination statute (RLUIPA). Unusually for a religion case, the justices appeared to divide along ideological lines, with conservatives skeptical that the statute permits damages.

Digital privacy—Chatrie v. United States. Whether a “geofence” warrant—which compels a service provider like Google to identify every user inside a virtual perimeter at the time of a crime—amounts to an unconstitutional search of the many innocent people swept in. This is perhaps the biggest Fourth Amendment case the Court has had in years, and one that is likely to divide the justices in … less-predictable ways.

* * *

To be sure, this isn’t all of the remaining cases. And some of the ones I haven’t mentioned (like Cisco v. Doe or the Monsanto case) could end up being significant, too. But these are the ones that strike me as likely to be “newsy” regardless of how they come out.

When to Expect the Rest

The mechanics here matter, so let me be concrete. The Court issues opinions on scheduled “opinion days,” and as the term winds down, those days come more frequently. The next batch of decisions is expected tomorrow—Thursday, June 11. As of now, the Court has only two public sessions scheduled for after tomorrow—next Thursday, June 18; and Thursday, June 25. I expect both of those to hold, but they won’t be enough to get through what’s left. Rather, I expect the justices to add opinion days throughout June, clearing the docket in waves and almost certainly saving some of the most contentious and divisive cases for the final week or two. We may not often get more than a few days’ notice of a newly added decision day, although we will be told which day will be the “last” day—which is followed by the often-overlooked “Cleanup Conference,” from which some quietly important procedural rulings can also emerge.

My advice for the next three weeks is simple—watch Thursdays and Fridays especially, and don’t be surprised if the Court adds a Monday or two as the pile shrinks.

The Themes Worth Watching

This is, once again, a presidential-power term. Three of the marquee pending cases—birthright citizenship, the FTC removal case, and the Fed case—are direct tests of how much the Constitution lets this President do unilaterally. And the TPS cases are important tests of the ability of courts to review what certainly appear to be deeply arbitrary executive actions. The throughline is the scope of Article II, and the decisions handed down over the next three weeks could have, as the New York Times has put it, “generational consequences” for the balance between the President and the other branches.

The merits docket can’t be read in isolation from the shadow docket. Regular readers know this is my hobbyhorse, and for good reason. While the Court was hearing these arguments, it was simultaneously handing the administration a remarkable run of emergency-docket wins—siding with the government in so many of the major cases, and with Republican-coded litigants in a number of other disputes to which the United States was not a party. That backdrop matters because several pending merits cases—Slaughter, Cook, the TPS cases—first reached the Court via the emergency docket, where the justices may already have tipped their hand. Watch whether the merits opinions ratify those interim signals—and also watch for folks making broad claims about the term that wholly ignore or unduly discount the justices’ machinations on the orders side of the ledger.

The 6–3 line is real, but it isn’t everything. The tariffs loss is the clearest reminder that this majority will, on occasion, rule against the President—and that he’ll lash out when it does. Expect a genuinely mixed scorecard: a likely loss for Trump on birthright citizenship and the Fed, paired with likely wins on independent-agency removal, asylum metering, and possibly TPS. The term may ultimately be remembered less for a single direction than for the Court’s selectivity about when it checks the executive.

The dissents are doing heavy lifting. Justices Jackson, Sotomayor, and Kagan have spent the term writing pointed, sometimes scorching dissents, especially respecting grants of emergency applications. As the divisive merits cases land, expect that trio to speak loudly, and to be writing as much for the future as for the present.

The Court’s relationship with lower courts. My own (idiosyncratic) take on the term is that perhaps the biggest theme cutting across most of these cases is how the justices have reconfigured their relationship with lower courts—in many cases, by either aggrandizing the lower courts’ power; constraining/undermining the lower courts; or both. (I have a draft law review article underway that should be ready for posting by mid-July.) That institutional shift may not lead to an obvious string of right- or left-coded outcomes, but it’s there all the same, and will be really important to keep an eye on as the Court clears its decks over the next three weeks.

Needless to say, I’ll be watching the opinion days closely (and providing the new “Decision Day Summary” videos for our paid subscribers. However you experience the Supreme Court’s output over the next three weeks, I hope you’ll find this newsletter to be a useful resource. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

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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:

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For the beginning of June, it was actually a relatively quiet week at the Supreme Court—including three decidedly modest rulings in argued cases on Thursday. Instead, the biggest headline came (yet again) on the emergency docket, where late Tuesday night, the Court granted a stay in the Alabama redistricting case that cleared the way for Alabama to use its 2023 congressional map. That decision has provoked quite a bit of commentary, almost all of it negative (Stanford professor Pam Karlan’s piece is especially worth reading—particularly with respect to how Tuesday’s ruling makes clear just how big a deal the April 29 decision in Louisiana v. Callais really is).

Rather than pile on, I thought I’d use today’s post to lay out, in detail, the evidence for the conclusion that the Court has abandoned any semblance of “principle” in its application of the “Purcell” doctrine. To cut to the punchline, the Court’s behavior in the Louisiana and Alabama cases over the past six weeks can’t be reconciled with or explained by any coherent understanding of what Purcell supposedly stands for. Perhaps one can single out individual decisions within this timeframe and defend them. But as is so often true with the Court’s work these days, it’s the overall pattern that reveals justices behaving in a way that has no obvious explanation other than politics.

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

On the Docket

The Merits Docket

The Supreme Court handed down three more rulings in argued cases on Thursday:

1. In Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a unanimous Court, in an opinion by Justice Jackson, reversed the Federal Circuit and held that, in a patent infringement case, a plaintiff must plausibly allege that the inducer “actively encouraged” infringing use of the patent—and that statements about how a generic pharmaceutical could be used did not suffice to establish such liability.

2. In SEC v. Sripetch, the Court, in a unanimous opinion by Justice Gorsuch, rejected a challenge to the Securities and Exchange Commission’s broad authority to recover illegal profits through the financial remedy known as disgorgement. Specifically, the Court held that a showing of pecuniary loss to investors is not required before the SEC may obtain a disgorgement award. Justice Thomas concurred, but wrote separately to suggest that, “[i]n a future case, we should recognize that disgorgement is now a legal remedy for which the Seventh Amendment requires a jury trial.” That would be a big deal if enough of his colleagues agree…

3. Finally, and speaking of the Seventh Amendment, an 8-1 majority held in FCC v. AT&T, Inc. that it does not offend the Seventh Amendment’s right to jury trial for the Federal Communications Commission to issue forfeiture orders without the involvement of a jury—even after the Court’s 2024 ruling reinvigorating the Seventh Amendment in SEC v. Jarkesy. Chief Justice Roberts wrote for the majority, holding that the reason FCC forfeiture orders don’t implicate the Seventh Amendment is because they’re not conclusive—and usually have to be enforced through separate proceedings. NYU law professor Noah Rosenblum has suggested that this is a quietly anti-administrative agency move, since it turns on the impotence of FCC forfeiture orders standing alone. It’s hard to disagree.

One note about FCC: The ruling was the sixth merits decision so far this term in a case from the Fifth Circuit, and the fifth time the Supreme Court reversed or vacated the New Orleans-based appeals court. No other lower court has been reversed more than twice. With five more Fifth Circuit cases still to come, it looks increasingly likely that this will be the third term in a row in which the Fifth Circuit is the most-reversed lower court in the country. Make of that what you will.

Monday’s Order List included one grant of certiorari for a case that will be argued next term—and a “summary reversal” in a post-conviction habeas case, from which Justices Thomas and Alito dissented. I’ve written before about the rather remarkable uptick in these kinds of rulings (“per curiam” opinions resolving the appeal at the certiorari stage) this term. Last Monday’s ruling in Whitton v. Dixon is the eighth of the term—not all of which, as Whitton underscores, have come from the Court’s “right.” As recently as OT2023 (so, two terms ago), there were no such rulings. Of course, the Court hasn’t provided any insight into why we’re seeing so many more of these. But, by this point, it is clearly a trend.

The Emergency Docket

Obviously, Tuesday night’s grant of a stay in the Alabama redistricting case (Allen v. Milligan) was the biggest news on the emergency docket—if not in general—last week. The only other full Court ruling on an emergency application came Monday, when the justices denied an application from Florida death-row inmate Andrew Lukehart to stay his impending execution. There were no public dissents.

The Week Ahead

We expect a regular Order List at 9:30 this morning, and the Court is scheduled to take the bench again (and hand down more rulings in argued cases) this Thursday at 10:00 ET. Other than that, there’s nothing currently expected out of the Court this week.

Miscellaneous

Finally, I thought I’d flag the official publication, in the Supreme Court Review (the peer-reviewed journal run out of the University of Chicago Law School), of my article on the Court’s handling of Trump-related emergency applications during the October 2024 Term—titled “The Supreme Court’s (Self-Defeating) Supremacy.” The article argues that the unifying theme of the Court’s behavior in those cases was not that “this Administration always wins” (as Justice Jackson argued); rather, it was the justices’ effort to preserve their own supremacy, displaying sustained disrespect for both lower courts and Congress while repeatedly (if not homogeneously) empowering the executive branch to defy statutes, the separation of powers, and the lower courts. The article closes by suggesting that such an approach will necessarily be self-defeating in both the medium and long term.

The published version of the piece is available via this website, but only if you have some kind of electronic access (e.g., through an educational institution), and my author agreement doesn’t allow me to post it here. Otherwise, the (free) draft that I posted to SSRN last October is really not that different from the final product, so you can simply download that one to get the gist. I’d also be happy to send the final version by e-mail to folks who don’t otherwise have access to it.

The One First “Long Read”: Purcell’s “Principle”?

Regular readers of this newsletter know that I tend to come back, again and again, to the same theme: the more that the Supreme Court decides through unsigned and largely unexplained orders on its emergency docket, the harder it becomes to take its stated principles at face value. There may be no better illustration of that problem than the so-called “Purcell principle.” Over the past six weeks, in a series of late-breaking orders directly touching Louisiana and Alabama, the justices have made it remarkably difficult to believe that Purcell is doing any real work as a neutral rule of judicial restraint—as opposed to functioning, in practice, as a one-way ratchet. What I want to do in the following paragraphs is to walk through the recent orders, lay out as precisely as I can the inconsistencies they expose, and then close with the uncomfortable question those inconsistencies raise: whether a principle that bends this reliably in one direction can still meaningfully be called a “principle” at all.

What Purcell Is Supposed to Stand For

The doctrine takes its name from Purcell v. Gonzalez, a 2006 per curiam decision (itself handed down on the emergency docket) in which the Court stayed a lower-court order that had blocked Arizona’s voter-identification requirement less than two weeks before a midterm election. The Court’s stated rationale was administrative and prophylactic: “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls,” and “[a]s an election draws closer, that risk will increase.” From that unsigned opinion, UCLA law professor Richard Hasen later coined the label “the Purcell principle”—the general rule that federal courts should refrain from altering election rules on the eve of an election to avoid confusing voters and burdening administrators.

Two features of the doctrine are worth pausing on, because they do most of the work in what follows. First, the Purcell Court never defined how close is “too close” to an election, leaving lower courts to guess at the boundary and the justices free to invoke it case by case. Second, as Justice Kavanaugh framed it in the 2020 Wisconsin litigation, Purcell is asymmetric: “It is one thing for state legislatures to alter their own election rules in the late innings and to bear the responsibility for any unintended consequences,” but “quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent.” Purcell, on this account, is a constraint on (federal) judges, not on legislatures. We’ll come back to both parts of this distinction in a moment.

The 2026 Sequence

The recent chapter begins on April 29, 2026, with the Court’s merits ruling in Louisiana v. Callais. By a 6–3 vote, the Court narrowed section 2 of the Voting Rights Act, holding that Louisiana was not required to draw a second majority-Black district and treating its effort to do so as an unconstitutional racial gerrymander. The timing was conspicuous: the decision landed less than three weeks before Louisiana’s congressional primary—three days before early voting was scheduled to begin—after the Court had sat on the case for quite a while (including hearing argument last term and then ordering reargument last June).1

Had things ended there, the Court might have avoided at least some of the controversy it has created for itself over the past six weeks. But on May 4, the Court granted Louisiana’s (unusual) request to issue the judgment in Callais immediately—a move that made sense only in a world in which the Court wanted to make it easier for Louisiana to re-draw its maps for the ongoing election cycle, versus worrying only about the law in future elections. Indeed, the justices could just as easily have waited the normal 32-day period—or, as those challenging Louisiana’s original map argued, stayed their ruling for the duration of the 2026 cycle. Dissenting from that order, Justice Jackson pointedly invoked “the so-called Purcell principle” as a reason the majority should have stayed its hand. Louisiana then suspended its primary and redrew its map to dismantle the majority-Black district, even though absentee ballots had already been cast—the very last-minute disruption and confusion that Purcell purportedly exists to prevent.

Alabama followed an even more tortured path. Recall that the Court had already held (in June 2023) that Alabama’s first attempt to redraw its maps after the 2020 Census violated section 2 of the VRA. Alabama responded with a new map (the “2023 map”) that a three-judge district court, in an exhaustive, 500+-page opinion handed down in May 2025, unanimously held to violate both section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment, because it intentionally diluted the votes of Black Alabamians. (Not that it should matter, but the three-judge court included two Trump appointees and a Clinton appointee.) In other words, the three-judge district court’s May 2025 injunction, entered well before the 2026 election cycle, did not rest solely on the grounds the Supreme Court revisited in Callais (in which, in any event, the majority distinguished its 2023 ruling blocking Alabama’s map); it rested independently on a constitutional claim that was not before the justices in the Louisiana case or in the 2023 Alabama case.

Undeterred, Alabama asked the Court to do two things after Callais—and to do them quickly. First, it asked for expedited merits review of its appeal challenging that district court ruling (or for a “GVR” that would have vacated that ruling and sent it back to the district court for reconsideration). Second, and in the alternative, it asked for a “stay” of that injunction while its appeal remained pending. Either way, the goal was expediency—to get out from under the district court’s injunction of the 2023 map in time to use that map (or a new one) this cycle.

On May 11, in a one-paragraph order, the Court took the former of these steps—GVRing the lower-court orders that had blocked Alabama’s 2023 map and remanding for reconsideration in light of Callais—again less than a week before primary voting was set to begin. There was, it should be stressed, no need for the Court to move so quickly. It chose to do so—never mind its prior insistence that federal courts (including the Supreme Court) should stay their hand in exactly such contexts.

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, warning the order “will cause only confusion as Alabamians begin to vote in the elections scheduled for next week.” After explaining why Callais shouldn’t have undermined the Alabama district court’s conclusions, she also explained why Purcell should in any event have cut against intervention:

Even if Callais had something to say about the evidence necessary to establish discriminatory intent, it still would not be appropriate to vacate the decision below at this time. That is because Alabama’s congressional primary election is next week, and vacating the District Court’s injunction will immediately replace the current map with Alabama’s 2023 Redistricting Plan until the District Court acts, even though voting has already begun. Vacatur is an equitable remedy, and the Court should not lightly wield it to unleash chaos and to confuse voters.

Nevertheless, as Sotomayor pointed out, the Court’s GVR didn’t stop the district court from moving quickly to once again enjoin Alabama’s 2023 map. And that’s exactly what happened. On May 26, the three-judge panel (in a 102-page opinion) unanimously reaffirmed that the 2023 map was “tainted by intentional race-based discrimination,” and barred its use. The district court also specifically addressed the Purcell elephant in the room—pointing to the Supreme Court’s own intervention on May 11 as proof that it wasn’t “too close” to the election for federal courts to get the law right.

Alabama returned to the Court the next day, accusing the panel of a decision that “defies Callais, manipulates the Purcell principle, and offends the Constitution’s promise of equal protection.” And a little after 9 p.m. last Tuesday, the Court granted its applications. In an unsigned, four-page “per curiam” opinion (more on that in the trivia, below), the majority held that Alabama was likely to succeed on the merits, faulted the district court for failing to presume legislative good faith, and concluded that the district court—not the State—had acted too late. “We have repeatedly cautioned that lower federal courts should not ‘alter the election rules on the eve of an election,’” the majority wrote. Note the word that is doing a lot of work in that sentence—“lower.” Purcell has never been viewed as a principle that applies only to the lower federal courts, nor would it make any sense as such. At its most defensible, it is a judge-made limit on the equitable powers of federal courts in general. That necessarily includes the Supreme Court.

Justice Sotomayor, once again joined by Justices Kagan and Jackson, dissented. Specifically, she accused the majority of the “weaponization” of Purcell—of allowing a state to make late, legally dubious changes, use those changes as the basis for getting out from under an earlier injunction (that was not “too late” under Purcell), and then escape subsequent judicial scrutiny. The order, she wrote, “disregards both democratic values and the rule of law,” and would force officials to reassign hundreds of thousands of voters “in just days at best, a task that Alabama previously represented would take months.”

The Case for Inconsistency

Here is where I want to be careful, because the charge of “inconsistency” sometimes gets thrown around loosely, and the Court is entitled to draw real distinctions. But the inconsistency here is not a matter of impression or mood; it is visible in the orders themselves. Start with the asymmetry between 2022 and 2026. In Merrill v. Milligan, the Court in February 2022 stayed a unanimous lower-court ruling that Alabama’s congressional map likely violated section 2, with Justice Kavanaugh’s concurrence (joined by Justice Alito) invoking Purcell to keep an arguably unlawful map in place roughly nine months before the election. The Court did the same for Louisiana that cycle. At that time, Purcell counseled against judicial disruption of a state map, even one that lower courts had found unlawful (including in a holding the Supreme Court would later affirm).

In 2026, by contrast, Purcell was deployed to permit a state’s eleventh-hour switch to a map a court had found intentionally discriminatory—requiring exactly the kind of large-scale administrative scramble the doctrine was meant to prevent. In the meantime, when Purcell should have counseled against Supreme Court interventions in Louisiana (when it was asked to issue the judgment immediately) and Alabama (when it was asked for a stay or GVR of the May 2025 district court ruling), the “principle” was nowhere to be found. Note what that means: in both directions, and on opposite facts, the (Republican-controlled) state won—with Purcell applied in some contexts, but not others.

The Supreme Court’s December 2025 intervention in the Texas redistricting case only sharpens the point. In Abbott v. League of United Latin American Citizens, the Court stayed a three-judge district court’s injunction against a map found to be an illegal racial gerrymander—even though the injunction issued almost a year before the general election. Justice Alito’s concurrence invoked Purcell’s vocabulary of confusion and an “active primary campaign.” If a year out is “too close” for a federal court to act in Texas, what’s the argument for the Supreme Court’s May 4 ruling issuing the judgment immediately in Callais, or its May 11 ruling issuing a GVR in the Alabama cases? In other words, the real sin here isn’t what the Court did on Tuesday night; it was what it did beforehand to help precipitate Tuesday’s ruling. There’s no universe in which the Alabama three-judge district court’s May 2025 ruling was “too close” to the election; only the Supreme Court’s own GVR (which certainly was itself too close) opened the door to Purcell, because it necessitated a new injunction from the same judges on the same questions.

The point is not that any one of these orders is indefensible in isolation. It is that, taken together, they cannot be reconciled by reference to a neutral, administrable rule. The Court has extended “the eve of an election” to nearly a year when staying relief sought by minority plaintiffs, yet found no Purcell obstacle to its own rulings wiping away lower-court decisions and clearing the way for last-minute changes to congressional districts in Louisiana and Alabama. As Loyola’s Justin Levitt put it in a studied understatement, the doctrine increasingly “seems like it’s really not a principle at all.”

The Appearance of Politics

That’s the part of the story that should worry even those who are otherwise comfortable with where the Court has landed on the merits. A doctrine this malleable invites precisely the inference the Court can least afford to have drawn about it. Professor Wilfred Codrington’s study of pandemic-era applications found that in nearly every instance Purcell operated to benefit one party and to depress turnout—producing the very confusion it purports to avoid. The current sequence reinforces that perception, because each ruling has cleared the way for Republican-favored maps that eliminate majority-Black (and likely Democratic) districts across the South. The appearance problem is not cured by the orders’ silence; in both Callais and the May Alabama order, the majority did not even mention Purcell, leaving the reasoning to be supplied by dissenters and commentators. Even last Tuesday’s per curiam opinion cites Purcell only elliptically—pointing to a 2020 ruling that … cited Purcell. When the Chief Justice publicly laments that the public wrongly views the justices as “political actors,” orders that consistently favor one party in racially charged redistricting fights and don’t do anything to explain away the justices’ substantively and procedurally inconsistent behavior make that lament harder to credit.

I want to take the strongest version of the other side seriously, because there is a principled defense, and it deserves a fair hearing. Purcell, on its own terms, restrains federal courts, not states; a state’s decision to change its own rules “in the late innings” is a different matter for which the state bears political responsibility. On that view, last Tuesday’s Alabama ruling is not Purcell abandonment but Purcell fidelity: the district court was the late-acting federal actor, and lifting its injunction simply restored the state’s prerogative. Notre Dame’s Derek Muller has also suggested that Purcell is generally understood not to bar a court from lifting an injunction, as opposed to imposing one, although it seems to me—and the equity guru, Professor Sam Bray at Chicago—that equity is and ought to be reciprocal. That leaves us with Alabama’s own framing—that no court should force a state to conduct elections under a map the Supreme Court’s new precedent suggests is unlawful. That argument has at least some force in the abstract.

The trouble is that the defense runs aground on the Court’s own 2022 conduct. The premise that a state should never be made to run an election under a legally suspect map is precisely what the Court rejected in 2022—when Justices Kavanaugh and Alito specifically invoked Purcell to require Alabama and Louisiana to use maps in the 2022 election cycle that lower courts had found unlawful. Indeed, the Court’s 2022 interventions led directly to at least three other states using maps lower courts concluded were unlawful—netting Republicans as many as five seats in the 118th Congress (the exact margin of the Republican majority in the House).

The Court cannot coherently hold both that Purcell compels using unlawful maps in Alabama and Louisiana (2022) and that Purcell isn’t violated by intervening in the middle of primary voting to allow Alabama and Louisiana to get out from under unlawful maps (2026). One of those sets of results can be defended; they can’t both be. And that, to me, is the bottom line. A rule that can license a result and its precise opposite, depending on which way the partisan valence runs, is not a principle of restraint at all. It is unstructured discretion wearing the costume of restraint—and the longer the Court declines to explain itself, the more threadbare that costume becomes, and the more the Chief Justice’s complaints about the Court being perceived as political may be protesting just a wee bit too much.

SCOTUS Trivia: Where Rulings Appear on the Website

Tuesday’s ruling in the Alabama case came down as a formal “opinion of the Court,” which confused a fair number of observers. Indeed, as I’ve noted before, there’s no obvious rhyme or reason to which rulings on emergency applications come down like the Alabama case (with a “per curiam” opinion of the Court), which come down as orders with (sometimes lengthy) explanations like the Texas redistricting case, and which come down with no explanation whatsoever.

The one thing we know is that the distinction isn’t the word count; there are “orders” with longer explanations than some of the Court’s recent “per curiam” opinions. Nor is it subject-matter, as the difference between the (substantively similar) Texas and Alabama rulings makes clear. Indeed, there is no explanation anywhere for when (or why) an unsigned explanation graduates from an “order” to a “per curiam” opinion; the choice seems to live entirely in internal custom to which no one outside the Court is privy (some might even say it’s “shadowy”—but apparently that’s pejorative).

My working hypothesis, offered with a mix of skepticism and uncertainty, is that this is less a rule than a habit, and that the “per curiam” label gets affixed when enough justices feel they’re issuing something opinion-shaped rather than order-shaped—a distinction that may be real to the people inside the building but is essentially invisible to the rest of us. Indeed, it would be one thing if the Court treated per curiam opinions as “more” precedential than orders, but that’s no longer true, either.

Instead, all I can do is tell you how this distinction manifests. When a ruling comes down as a per curiam opinion of the Court, it goes on the “Opinions of the Court” page, regardless of how it got there. When it comes down as an “order,” it shows up either on the “Orders of the Court” page or, if anyone writes a separate opinion respecting the order, on the “Opinions Relating to Orders” page. And you’ll never know in advance where to look.

Don’t blame me; I just work here.

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On its face, the Margolin ruling is a narrow, almost technical disposition—the kind of housekeeping reversal that ordinarily gives rise to a decidedly modest news cycle and then disappears. But buried beneath the per curiam decision is something far more consequential: a concurrence by Justice Thomas, joined by Justice Barrett, that would have decided the case on the merits and slammed the courthouse door on the immigration judges’ claims for good. This post is about that concurrence—and, more specifically, about Justice Barrett’s (quite intentional) decision to publicly add her name to it.

Specifically, the post does three things below the fold: First, it explains the discrete question lurking in Margolin: whether a politically controlled and (for much of 2025) inquorate Merit Systems Protection Board (MSPB) remains the exclusive forum for federal employees’ workplace claims, or whether the dysfunction of that forum does and should reopen the doors of the district courts. Second, it situates that question within a much larger family of “channeling” disputes now metastasizing across the litigation against the Trump administration—including, most recently, the Third Circuit’s deeply consequential (and, in my view, flawed) ruling in Khalil v. Trump, and its subsequent denial of rehearing en banc. Third, and finally, it explains why I think Justice Barrett’s willingness to put her name on Justice Thomas’s Margolin concurrence is an important—and, in my view, genuinely ominous—signal for how that whole family of cases is likely to come out. That may not surprise anyone who read her split-the-difference concurrence in the NIH case last August. But precisely because Barrett’s vote is so often the decisive one in these cases, her visible choice to join Thomas here could end up being a very big deal.

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The Court made quite a bit of news last week, and we’ll cover all of it below. But one of the rulings that received relatively fewer headlines was last Tuesday’s “denial of leave to file an original bill of complaint” (i.e., a refusal to exercise “original” jurisdiction) in a case with the intriguing caption Florida v. California. The lawsuit arose out of accusations Florida leveled against California and Washington of violating federal safety and immigration laws by issuing CDLs to individuals who are not U.S. citizens or lawful permanent residents and who allegedly lack English proficiency. Even though the Supreme Court’s jurisdiction in such cases is both “original” (meaning cases start in the Supreme Court) and “exclusive” (meaning no other court can hear such a case), the justices refused to take up the dispute—prompting a dissent by Justice Thomas that was joined by Justice Alito.

I’ve written before about the debate over what is sometimes known (among the three people who follow this stuff) as the “Wyandotte doctrine”—the idea that the Supreme Court can exercise the same discretion to decline to hear original jurisdiction cases that it exercises over (almost all of) its appellate docket. Indeed, it’s been 50 years since the Supreme Court first held that it did not have to hear a lawsuit just because there are states on both sides. My own view has always been that this is a perfectly valid interpretation of Article III of the Constitution and a reasonable (if not self-evident) interpretation of the relevant statute, 28 U.S.C. § 1251(a). But I wanted to use this most recent case to illustrate the biggest reason why I think such discretion is a good thing—because of what it would mean for the Court’s docket, and how it would look, if the justices couldn’t duck politically charged cases like Florida.

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

On the Docket

The Merits Docket

The Court handed down four decisions in argued cases on Thursday:

1. In Rutherford v. United States, the Court addressed whether a district court may treat the non‑retroactive sentencing changes Congress made to 18 U.S.C. § 924(c) in the First Step Act of 2018 as an “extraordinary and compelling reason” under 18 U.S.C. § 3582(c)(1)(A)(i) to support the compassionate release of those sentenced prior to the statute’s enactment (that is, those who would have benefitted from the new rule had it applied retroactively). Writing for the “usual” 6-3 majority, Justice Barrett held that the sentencing disparity created by Congress’s non‑retroactive change cannot serve as an extraordinary and compelling reason warranting a sentence reduction. Justice Sotomayor filed a dissent, joined by Justices Kagan and Jackson, arguing that Congress gave the Sentencing Commission discretion to decide what counts as “extraordinary and compelling reasons” for a sentence reduction, and that the Commission’s choice to count such a disparity as one was well within the discretion Congress had given to it, and should’ve been left alone.

2. In Fernandez v. United States, a companion case to Rutherford, Justice Barrett also held (again, writing for all six Republican appointees) that doubts about the legal validity of a conviction or sentence can never qualify as “extraordinary and compelling reasons” supporting compassionate release under § 3582(c)(1)(A)(i). Instead, challenges “close to the core of habeas corpus” must be brought under the federal habeas statute—and cannot be repackaged as compassionate‑release motions. Justice Sotomayor, joined by Justice Kagan, concurred in the judgment because she agreed that Fernandez’s appeal should fail. But she criticized the majority for deciding more than necessary, and for grafting a “complex habeas analysis” onto the compassionate‑release framework. And Justice Jackson filed a solo dissent arguing that nothing in the compassionate release statute categorically bars second‑look relief based on previously considered facts, even if those might also be appropriate for habeas relief. The ideological split in both cases is, alas, telling—including for what it says about Justices Gorsuch and Barrett (who are often portrayed as more sympathetic to criminal defendants than the case law generally suggests).

3. Speaking of Justices Gorsuch and Barrett, Pitchford v. Cain involved a Mississippi capital defendant’s challenge under Batson v. Kentucky to the prosecution’s peremptory strikes of four Black jurors, where the trial court skipped Batson’s third step and gave defense counsel no opportunity to rebut the prosecutor’s race‑neutral explanations. By a 5‑4 vote, the Court—in an opinion by Justice Kavanaugh, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson—held that the Mississippi Supreme Court unreasonably applied Batson in concluding that Pitchford had waived his rebuttal rights, and granted federal post-conviction habeas relief to the death‑row inmate. (Once again, Batson appears to be the one criminal justice issue on which Justice Kavanaugh tends to vote with the Democratic appointees.) Justice Gorsuch wrote the dissent, joined by Justices Thomas, Alito, and Barrett. Again, what I find striking about the outcome here aren’t the votes of the Chief Justice and Justice Kavanaugh in favor of a death-row inmate, but the fact that Gorsuch and Barrett both dissented in such a clear-cut Batson case.

4. Finally, Flowers Foods, Inc. v. Brock concerned the scope of the Federal Arbitration Act’s exemption for “workers engaged in foreign or interstate commerce,” as applied to “last‑mile” distributors who deliver baked goods locally after the products have moved in interstate commerce. In an opinion by Justice Gorsuch, the Court unanimously validated the arbitration exemption for the last‑mile drivers, holding that they fall within § 1’s transportation‑worker carve‑out and therefore cannot be compelled to arbitrate under the FAA.

For those scoring at home, Thursday’s quartet brings the total number of rulings in argued cases this term to 32, crossing the halfway mark (we expect ~25 more before the justices rise for their summer recess at the end of this month).

The other big ruling on last Tuesday’s Order List was the Court’s summary reversal of the Fourth Circuit in Margolin v. National Association of Immigration Judges. Margolin arose from an October 2021 Executive Office for Immigration Review policy requiring immigration judges to obtain supervisory approval before giving public speeches relating to their official duties, which the National Association of Immigration Judges (NAIJ) challenged on First and Fifth Amendment grounds in the Eastern District of Virginia. But the real fight was over where the NAIJ’s claims have to be litigated. Under the Civil Service Reform Act of 1978 (CSRA), most federal-employee workplace grievances must be channeled to the Merit Systems Protection Board (MSPB) and the Office of Special Counsel in the first instance (with appeals to the Federal Circuit), rather than litigated in district court. The district court dismissed on that basis, but the Fourth Circuit vacated and remanded for fact-finding on whether the CSRA scheme was still “functioning as Congress intended” given the Trump administration’s removals of the Special Counsel and MSPB members and the resulting loss of a quorum.

In an unsigned “per curiam” opinion, the Court summarily reversed, holding that the Fourth Circuit violated the principle of party presentation by deciding the case on a theory neither party had raised, briefed, or argued, and reiterating that federal courts are “essentially passive instruments” that must “decide only the questions presented” and are not “roving commissions . . . licensed to ‘sally forth each day looking for wrongs to right.’” I’ve written before about the Court’s frustratingly selective adherence to this principle, and this strikes me as another example—where relying upon it mostly just allowed the Court to duck a messier question on the merits (i.e., whether the evisceration of the MSPB and its lack of a quorum should bear upon the ability of district courts to hear challenges like NAIJ’s).

On those merits, Justice Thomas, joined by Justice Barrett, wrote separately to disagree with the Fourth Circuit. As Thomas argued, “[n]either the President’s view that he can remove federal executive officials, nor his having done so, change the meaning of the statute or the binding nature of this Court’s interpretation of it.” Perhaps failing to appreciate the tension with Justice Alito’s majority opinion in Callais, Thomas wrote that courts cannot “rewrite the statutory scheme” to anticipate possible invalidation of removal protections, because “[s]tatutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress’s purposes.”

To me, the significance of Margolin isn’t what Thomas wrote; it’s that Justice Barrett joined it. There is a lot of ongoing litigation arising out of alleged violations of civil service protections by the Trump administration. It’s hard to read Barrett’s very public vote here as anything other than a signal that she thinks the lion’s share of those claims have to go through the (not-exactly-functioning) MSPB process. Given the importance of her vote if and when this issue reaches the Court as part of a plenary appeal, where the issue is likely to divide the justices quite sharply, that’s an ominous sign, in my view.

The Emergency Docket

There were no full Court rulings on emergency applications last week. But we expect a significant ruling as early as today—with three emergency applications from Alabama asking the justices to clear the way (again) for Alabama to use a congressional district map that a three-judge district court held to violate not just the Voting Rights Act, but the Constitution itself, on the ground that it reflects intentional racial discrimination. Readers may recall that just three weeks ago (on May 11), the Court issued a “GVR” in these same cases—vacating the district court’s injunctions and ordering the court to reconsider in light of Callais, over a sharp dissenting opinion by Justice Sotomayor that was joined by Justices Kagan and Jackson. Well, the district court did just that—and issued a 102-page ruling on Tuesday that restored its original injunctions (with some relatively direct words for the Supreme Court, along the way).

Now, Alabama is asking the justices for a stay under (you guessed it) Purcell. Just to underline the sequencing here, the original district court injunctions were not issued too close to the election. The only reason why things got messed up was because of the Supreme Court’s intervention on May 11—intervention that, as Justice Sotomayor’s dissent made clear, should itself have been foreclosed by Purcell. For the Court to turn around now and invoke Purcell to allow Alabama to use a racially gerrymandered map, when it ran right over Purcell 21 days ago to wipe away a lower-court ruling blocking that map, would, in my view, only further exacerbate the appearance that the justices are playing partisan politics in these cases. That doesn’t mean that it won’t happen, alas.

The Week Ahead

Besides a ruling on the Alabama applications, we expect more decisions in argued cases this Thursday at 10:00 ET. As noted above, there are 25 rulings in argued merits cases still to come (plus the Trump v. Cook emergency application, which was argued in January). Both the process of elimination and the timing are making it increasingly likely that we’ll start getting some of the “big” rulings of the term sooner, rather than later.

Miscellaneous

Finally, I’ll be offline this morning because I’ll be arguing before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (Clement, Southwick, & Engelhardt, JJ.). I represent the appellants in Gonzalez Maldonado v. Standard Aero (San Antonio), Inc., a tort suit arising out of a 2018 military plane crash in which the district court granted summary judgment to Standard Aero based upon the government contractor defense the Supreme Court articulated in Boyle v. United Technologies Corp. We’re asking the Fifth Circuit to reverse and remand for further proceedings. (For those who are curious, I’ll link to the briefs and to the oral argument live-stream in the footnote at the end of this parenthetical.)1

The One First “Long Read”: The Ongoing Debate Over Discretion on the Original Docket

On August 12, 2025, Harjinder Singh, an Indian national who Florida alleges crossed the Mexican border without authorization, attempted a U-turn across the median of the Florida Turnpike, swinging his tractor-trailer across both lanes of traffic and killing all three passengers in a minivan that could not avoid the wreck. Singh held a non-domiciled commercial driver’s license (CDL) issued by California and had previously been licensed in Washington, and post-crash testing by the Federal Motor Carrier Safety Administration (FMCSA) indicated he could identify only one of four highway signs. Following the crash, Florida Attorney General James Uthmeier invoked the Supreme Court’s original jurisdiction and moved for leave to file a bill of complaint against California and Washington, alleging that those states’ CDL practices are preempted by federal safety and immigration law and constitute a public nuisance because commercial drivers routinely cross state lines. Florida sought an injunction barring the two states from issuing CDLs to applicants who are not U.S. citizens or lawful permanent residents and who do not meet federal safety requirements.

As part of its regular Order List last Tuesday, the Supreme Court denied Florida’s motion for leave to file the bill of complaint, leaving California’s and Washington’s existing licensing practices intact. California had urged the Court to reject Florida’s filing as “patently meritless,” explaining that its Department of Motor Vehicles verifies legal presence through the federal SAVE database and tests for English proficiency before issuing non-domiciled CDLs. Washington characterized the suit as a “political stunt” announced on Fox News and argued that the dispute “is not about boundaries or water” but “about the wisdom of state policies”—precisely the kind of policy disagreement the Court’s original jurisdiction is not designed to resolve.

Only Justices Thomas and Alito publicly dissented—advancing a procedural argument both justices have been making for some time. Specifically, Thomas and Alito have long maintained that the Court lacks the discretion to decline to hear cases between two or more states—on the ground that Congress, at least, has made the Court’s jurisdiction in such cases “exclusive.” Thus, the logic goes, why would Congress have given the Court discretion to not hear a lawsuit that no other court in the country can hear?

Even under the Court’s existing discretionary framework, Thomas also argued that Florida’s complaint warranted leave to file. Stressing the “seriousness and dignity” of the claim and the lack of “availability of an alternative forum,” Thomas reasoned that Florida’s claims qualified as a “model case” because the dispute “would amount to casus belli if the States were fully sovereign,” analogizing California’s and Washington’s (alleged) licensing practices to “one nation sending dangerous people into another.” (I’ll come back to the “facts” below.)

On the second factor, Thomas emphasized that “all appear to agree that Florida cannot sue Washington and California in any other forum,” noting that even federal enforcement mechanisms permit judicial review only in narrow circumstances and may not yield the declaratory relief Florida sought. He concluded that the Court was declining “to even hear Florida’s claims, even though it has nowhere else to bring them.”

Yet, in my view, the nature of this very dispute illustrates why the Court’s discretionary approach continues to be sound. Florida’s complaint does not present the kind of bilateral, sovereign-to-sovereign controversy that historically populated the original-jurisdiction docket—disputes over boundary lines, river apportionments, or interstate compacts, where the states themselves are the only proper parties. Indeed, although the Court has never publicly explained how it decides which original cases to hear, it certainly appears as if the Court is granting leave to file in every case in which state-state litigation is the only way to resolve the underlying legal dispute, without regard to the identity of the parties. In contrast, when a state policy (allegedly) causes injuries in another state, there’s always at least some universe of claims that can be brought by other parties (and, thus, in other courts). And those cases are the ones the justices are regularly refusing to hear.

That is also, of course, this case, where Florida asked the Court to adjudicate a contested federal preemption and public-nuisance theory targeting another state’s regulatory policy, on a record Florida itself conceded was “unclear” as to how Singh’s specific license was processed, with the federal Department of Transportation already pursuing parallel enforcement and rulemaking on the same subject. As Washington warned, accepting jurisdiction would invite states to “bring nuisance claims against each other” over any policy disagreement—”lax vaccination policies or firearm restrictions,” for example—transforming the Supreme Court into a court of first instance for politically charged interstate quarrels.

I’ve written before about exactly this concern—which reared its head most visibly in December 2020, when Ken Paxton tried to use the Court’s original jurisdiction to get the Supreme Court to step into the middle of the litigation over the 2020 election results by suing four states directly in the Supreme Court. I think we’re all better off for the Court having had the ability to say, and having said, “no.”

It’s also worth saying a few words about Thomas’s statutory interpretation argument—and the claim that exclusive must mean “mandatory.” Out of context, as a matter of pure statutory interpretation, it certainly is a reasonable position. The problem for Thomas and Alito is that the Supreme Court first expressly adopted the current (discretion-based) interpretation of the same language in 1976 (50 years ago last week, to be exact)—and Congress has left that interpretation undisturbed for a half-century. There comes a point after which Congress’s silence, especially in the face of these kinds of recurring dissents, may fairly be described as a form of acquiescence in the Court’s interpretation.

That acquiescence may reflect not just a sense that the Court is doing a relatively good job of distinguishing between state-state cases that really are ones only the justices can resolve, and those, like Florida, that are political disputes where any true legal objections can be litigated by other parties elsewhere. Indeed, by demonstrating how a state attorney general can package a domestic policy dispute as a casus belli and announce it on cable news, the dissent shows—perhaps unintentionally—why the Court may need the discretion to which it objects, to screen out suits whose form is interstate but whose substance is political. Mandatory jurisdiction in such cases could overwhelm the docket; it could draw the Court into fact-intensive disputes it is ill-equipped to resolve as a trial court; and—as the bipartisan, federally regulated CDL framework here suggests—it could displace the political and administrative channels Congress has already created to address these very issues.

All the while, the result for which Justices Thomas and Alito keep arguing would consume the Court’s finite resources with no obvious stopping point. Congress certainly has the power, in my view, to make the Court’s jurisdiction in such cases mandatory. But there are strong reasons to assume it hasn’t done so until and unless it says so explicitly—and Florida v. California is just the latest example of why.

SCOTUS Trivia: The Last Non-§ 1251(a) Original Jurisdiction Case

Even within the Court’s non-exclusive original jurisdiction, restraint is the norm—not the exception. The debate in Florida v. California is over § 1251(a)—the Court’s original jurisdiction in cases in which there are states on both sides. But the Court also has “original” jurisdiction under § 1251 in three other sets of cases—those set forth in § 1251(b): “(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; [and] (3) All actions or proceedings by a State against the citizens of another State or against aliens.”

The Court’s jurisdiction in those cases is expressly “not exclusive,” meaning lower courts also have jurisdiction over the same disputes. And even though the Court continues to hear § 1251(a) cases every so often, it has been decades since the last time the Court granted leave to file an original bill of complaint in a case in which its jurisdiction rested on § 1251(b). Specifically, the last § 1251(b) case appears to have been Alaska v. United States, No. 128—a dispute over title to certain submerged lands underlying waters located in southeast Alaska that was filed on November 24, 1999, and that was eventually resolved in the federal government’s favor in a 6-3 ruling in 2005.

As the kids say, it’s been a minute.

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!

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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…

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That is exactly why a story like the one that emerged on Tuesday—about a February 11 Eleventh Circuit Judicial Council ruling regarding a judicial misconduct case—is worth dwelling on, even as it makes a defender of the district courts wince. In a nutshell, the case arises from a multi-year affair a district judge carried out with a senior officer in a local police department, including in chambers during business hours (and within earshot of law clerks). When one of the judge’s clerks complained to the district court’s Chief Judge, the “subject judge” not only aggressively denied the charge, but attempted to blame the clerk for trying to retaliate against the judge. The subject judge only came clean once a special committee appointed to investigate the matter discovered incontrovertible evidence of the affair—and even then, still tried to put some of the blame on their clerk. (The subject judge also attended a partisan political event and was … less than fully candid about it.) Despite all of that, the Eleventh Circuit Judicial Council recommended only a “private reprimand,” because of “(1) the Subject Judge’s correction of the judge’s false statements and subsequent candor with the special committee; (2) the unlikelihood that the Subject Judge will engage in similar misconduct in the future, evidenced by the judge discontinuing the relationship with the Officer and commitment to avoid future partisan political events; and (3) the Subject Judge’s otherwise exemplary service to the court.”

As I explain below the fold, my own view is that a “private reprimand” was not a remotely sufficient punishment for the subject judge’s misconduct—not because of the affair, but because of the subject judge’s dishonesty and their transparent attempt to throw one of their own law clerks under the bus. Especially today, the federal judiciary needs to look not merely competent but conspicuously above reproach. A “private reprimand” of an unnamed district judge who carried on an extramarital affair in their chambers, lied about it to two chief judges, and tried to shift the focus to alleged retaliation by a law clerk does not look that way. It looks like the institution flipping over the (not-so-proverbial) cushion.

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Every Monday morning, including holidays like today, 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:

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Two of the highest-profile individual immigration cases of the second Trump administration—those of Mahmoud Khalil and Kilmar Abrego Garcia—produced major news on Friday. In Khalil, a 6-5 majority of the en banc Third Circuit refused to rehear a three-judge panel decision that had held that Khalil had to bring his First Amendment challenge to his arrest and potential removal from the country before executive branch immigration “judges” in the first instance, and could not raise that challenge through a habeas petition filed in federal district court. And in Abrego Garcia, a Tennessee federal district judge dismissed the criminal case the Trump administration had hastily filed against Abrego Garcia shortly after bringing him back from El Salvador last summer—holding that there was overwhelming evidence that the prosecution was (unlawfully) vindictive.

My own view, as I explain in more detail below, is that the Third Circuit is wrong—largely for the reasons articulated by Judge Krause in her dissent from the denial of rehearing en banc, and those provided by Judge Freeman in her dissent from the original panel ruling. But the majority’s view here is, alas, not preposterous—thanks to both (1) a jurisdiction-stripping statute Congress passed in 1996; and (2) the Supreme Court’s (in my view, problematic) 2020 ruling in DHS v. Thuraissigiam. And so these two developments, between them, underscore what courts both can and can’t do when it comes to curbing this administration’s transparent abuses of what was already a labyrinthine system for judicial review in immigration cases.

More on all of that below. But first, the (Supreme Court) news.

On the Docket

The Merits Docket

The Court handed down three rulings in argued cases last Thursday.

1. M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund: In a unanimous opinion by Justice Jackson, the Court resolved a circuit split and held that multiemployer pension plans may calculate employers’ withdrawal liability using actuarial assumptions adopted after the statutory “measurement date”—the last day of the plan year preceding the employer’s withdrawal—so long as those assumptions reflect data and conditions that existed on or before that date. (Four employers that withdrew from the IAM National Pension Fund in 2018 challenged the fund’s use of a 6.5% discount rate adopted in January 2018 rather than the prior 7.5% rate in effect at the December 31, 2017 measurement date—a change that increased total unfunded vested benefits from roughly $448 million to over $3 billion and dramatically raised each employer’s share.) The Court held that ERISA's "as of" language fixes factual inputs on the measurement date but does not impose a deadline for selecting actuarial assumptions, which are analytical tools rather than hard data, and it noted that employers retain the safeguard of challenging unreasonable assumptions in arbitration.

2. Havana Docks Corporation v. Royal Caribbean Cruises, Ltd.: In an 8-1 decision written by Justice Thomas, the Court held that four major cruise lines—Royal Caribbean, Norwegian, Carnival, and MSC—may be held liable under Title III of the Helms-Burton Act for using docks at the Port of Havana that Cuba’s government confiscated from the Havana Docks Corporation in 1960, even though Havana Docks’ time-limited concession to operate the docks would have expired in 2004. The majority reasoned that “property which was confiscated” under the statute encompasses the physical docks—not merely the plaintiff’s intangible interest—rendering confiscated property permanently “tainted” such that anyone who uses it can be liable. Justice Sotomayor concurred but warned that the ruling could expose an unlimited number of dock users to repeated multi-million-dollar judgments far exceeding Havana Docks' certified $9 million loss, and she flagged a statutory exception for lawful travel to Cuba that may shield the cruise lines on remand; Justice Kagan dissented alone (for, as near as I can tell, the first time in her entire tenure on the Court), arguing the docks always belonged to Cuba and that the majority effectively converted time-limited property interests into perpetual ones.

3. Hamm v. Smith: In one of what I would call the term’s “big” cases, the Court punted—“dismissing as improvidently granted” the writ of certiorari and leaving in place the Eleventh Circuit’s ruling that Alabama death-row inmate Joseph Clifton Smith is intellectually disabled and therefore cannot be executed under Atkins v. Virginia. Smith, convicted of a 1997 murder, received five IQ scores ranging from 72 to 78—all above the 70-point cutoff Alabama uses. But the standard error of measurement on his lowest score placed his true IQ potentially as low as 69, and a federal district court found him intellectually disabled after a holistic review of IQ scores, expert testimony, and adaptive-functioning deficits. By process of eliminating, we know that the vote was 5-4: Justice Sotomayor, joined by Justice Jackson, concurred that the case was a poor vehicle because the parties agreed no single formula exists for weighing multiple IQ scores and the issue had not been squarely litigated below; Justice Thomas dissented alone—calling for overruling Atkins in its entirety (because it’s apparently okay to execute those who are intellectually disabled); and Justice Alito, joined fully by Justice Thomas and in part by Chief Justice Roberts and Justice Gorsuch, dissented to argue the Court should have provided guidance on methods such as composite scores for evaluating cumulative IQ data. The really interesting part here, in my view, is that Justices Kavanaugh and Barrett (who clearly voted for the DIG) didn’t write separately to explain why.

The other interesting development on the merits docket came in last Monday’s regular Order List—in which the Court issued a pair of “GVRs” (granting certiorari, vacating the decision below, and remanding for further proceedings) in cases about whether section 2 of the Voting Rights Act can be privately enforced despite not providing an express “cause of action.” The Court GVR’d “in light of” its ruling in Louisiana v. Callais. As Justice Jackson pointed out in a short dissent, nothing in Callais (which was about the scope of section 2) remotely bears upon who can enforce that statute. Alas.

The Court also added one case to its merits docket for the October 2026 Term—agreeing to review an Eleventh Circuit ruling that had held that employees of educational institutions receiving federal funding can’t use Title IX to bring sex-discrimination claims against their employers (and must instead use Title VII).

The Emergency Docket

Speaking of the death penalty, there were seven full Court rulings on emergency applications last week. Six denied stays of execution to two different death-row prisoners: Richard Knight in Florida, and Tony Carruthers in Tennessee. Knight was executed on Thursday. Tennessee botched Carruthers’ execution—leading Governor Bill Lee to grant a one-year reprieve. There were no public dissents from any of the six orders.

The seventh order also came over no public dissents—denying emergency relief to two candidates for the Georgia Supreme Court who sought to block the state’s Judicial Qualifications Commission from putting out a public statement that they had violated the state's Code of Judicial Conduct when they endorsed each other and promised to restore abortion rights if elected.

The Week Ahead

The Court is closed today for Memorial Day. We expect a regular Order List at 9:30 ET tomorrow (Tuesday), and more decisions in argued cases Thursday at 10 ET. I’m not currently aware of any pending emergency applications likely to provoke full Court rulings this week, but that can always change quickly.

The One First “Long Read”:
The Next Steps in Khalil and Abrego Garcia

Last Friday, federal courts on opposite ends of the Eastern Seaboard issued consequential rulings in two of the most closely watched immigration cases of the Trump administration’s second term. In Philadelphia, the U.S. Court of Appeals for the Third Circuit, sitting en banc, voted 6–5 to deny rehearing of a panel decision that stripped a federal district judge of jurisdiction over Mahmoud Khalil’s constitutional challenge to his detention and removal. In Nashville, U.S. District Judge Waverly Crenshaw dismissed the human-smuggling indictment against Kilmar Armando Abrego Garcia, finding that the Department of Justice had pursued a “vindictive prosecution” in retaliation for Abrego Garcia’s successful challenge to his wrongful deportation to El Salvador.

Both men have become emblematic of the administration’s aggressive use of immigration authority—Khalil as the face of the crackdown on pro-Palestinian campus activism, and Abrego Garcia as the symbol of mass removals to El Salvador’s Terrorism Confinement Center (CECOT) based upon invented facts and in defiance of a prior order specifically barring his removal to El Salvador.

Friday’s rulings cut in opposite directions: Khalil lost a critical procedural battle that brings him closer to a second detention and possible deportation to a country like Algeria or Syria, while Abrego Garcia secured a sharp judicial rebuke of the Justice Department’s conduct that frees him of federal criminal exposure, even as his removal proceedings continue. Read together, the decisions illustrate the increasingly central role of Article III courts in policing the boundary between executive immigration authority and individual constitutional rights, even if that boundary isn’t always where you (or I) think it ought to be.

Khalil

Mahmoud Khalil, 31, is a lawful permanent resident, a recent Columbia University graduate, and a former lead negotiator between Columbia and student protesters during the spring 2024 pro-Palestinian encampments. He was arrested by Immigration and Customs Enforcement officers at his Columbia housing in March 2025. His case became the first high-profile detention in what became a broader campaign against foreign students and scholars engaged in (constitutionally protected) pro-Palestinian advocacy. The government invoked a seldom-used Cold War–era provision of the Immigration and Nationality Act allowing the Secretary of State to deem a noncitizen removable on the ground that the person’s presence or activities would have “serious adverse foreign policy consequences” for the United States. Officials accused Khalil of leading activities “aligned to Hamas,” though they have produced no supporting evidence and have not charged him with any crime. The government later added a charge that Khalil had misrepresented information on his green-card application—a charge his lawyers say was retaliatory.

After roughly three months of detention in a Louisiana ICE facility, U.S. District Judge Michael Farbiarz of the District of New Jersey ruled in June 2025 that the foreign-policy ground for removal was likely unconstitutional and ordered Khalil released. The Trump administration appealed, arguing that constitutional challenges to removability must be channeled through the immigration “court” system—an arm of the Justice Department over which the Trump administration has exerted far more direct, political control than its predecessors—before reaching an Article III court. In January 2026, a divided Third Circuit panel agreed, 2-1, vacating Judge Farbiarz’s orders on jurisdictional grounds and concluding that Khalil’s federal-court suit was premature. The Board of Immigration Appeals separately upheld Khalil’s order of removal in April 2026, designating Algeria or Syria as countries of removal.

On Friday, the full Third Circuit voted 6-5 to deny rehearing en banc of the January panel decision. The vote split along ideological lines and leaves intact the panel’s holding that 8 U.S.C. § 1252’s channeling provisions require Khalil to litigate his First Amendment and due process claims within the immigration adjudicatory system—and ultimately a federal court of appeals on petition for review—rather than through a habeas or civil action in district court. (Judge Emil Bove, a recent Trump appointee who had previously been involved in Justice Department investigations of student protesters, did not participate in the en banc vote; he separately denied as moot a motion by Khalil’s counsel that he recuse himself.)

Judge Cheryl Ann Krause, writing in dissent, accused the majority of “abdicating [its] duty to meaningfully review Khalil’s constitutional claims” and warned that the judiciary “cannot fulfill [its] role as a check on the other branches of government … if we write ourselves out of relevance and leave the Executive Branch to check itself.” Three dissenters jointly wrote that the majority “ignores canons,” “strains precedent,” and “imperils the civil liberties of [Khalil] and similarly situated noncitizens.”

I’ll confess to being deeply sympathetic to Judge Krause’s dissent, especially because of the formal and practical constraints on judicial review within the immigration system. As things currently stand, neither an immigration “judge” nor the Board of Immigration Appeals has the same authority to resolve constitutional challenges to removal grounds as federal district courts do, and that’s without even taking into account the lengths to which the current administration has gone to deprive that entire system of even a modicum of independence. I also think there’s quite a lot to commend the argument Judge Krause made in her dissent that, insofar as the relevant “channeling” statutes require such futile judicial review first, they violate the Constitution’s Suspension Clause. The problem there is the Supreme Court’s 2020 ruling in DHS v. Thuraissigiam, which held that the Suspension Clause does not generally ensure judicial review of challenges to removal orders. In a world in which Thuraissigiam is right, the Suspension Clause argument is not as open-and-shut as I wish it were.

Practically, the ruling means that as of this Friday—when the Third Circuit’s mandate is scheduled to issue—the district court’s release order will be dissolved, and the government will be free to re-arrest Khalil and begin removal proceedings. Khalil’s attorneys have asked the Third Circuit to stay its mandate pending a petition for certiorari to the Supreme Court, which they expect to file by late summer. The decision also has systemic significance: by foreclosing pre-removal federal-court review of constitutional challenges to detention and charging decisions, it effectively channels speech-based and retaliation claims by detained noncitizens into the Attorney General–supervised immigration “court” system, at least within the Third Circuit. Khalil has separately appealed his removal order to the Fifth Circuit, where he was detained, and is pursuing a motion before the BIA to reopen on the ground that the administration improperly fast-tracked and tried to predetermine his immigration proceedings.

Abrego Garcia

Kilmar Abrego Garcia, 30, is a Salvadoran national who entered the United States illegally as a teenager, married a U.S. citizen, and has lived and worked in Maryland for years under ICE supervision. In 2019, an immigration judge granted him withholding of removal to El Salvador, finding that he faced a clear probability of persecution by a gang that had threatened his family. On March 15, 2025, the Trump administration nonetheless placed him on one of three planeloads of alleged gang members removed to El Salvador’s CECOT mega-prison, in what an ICE official subsequently conceded was an “administrative error.” Rather than own up to its mistake, though, the administration doubled down, and then tripled down, manufacturing evidence that Abrego Garcia was affiliated with MS-13 (even though that wasn’t the basis for his original removal order, and, even had it been true, wouldn’t have overcome the withholding of removal with respect to El Salvador).

U.S. District Judge Paula Xinis of the District of Maryland ordered the government to “facilitate and effectuate” his return. In April 2025, the Supreme Court unanimously affirmed the obligation to facilitate his release while questioning the scope of “effectuate” and counseling deference to the executive on foreign affairs. After months of resistance, the administration brought him back in June 2025 to face a two-count human-smuggling indictment in the Middle District of Tennessee arising out of a November 2022 traffic stop in which he had been pulled over for speeding with nine passengers and released with a warning. Abrego Garcia pleaded not guilty, and the case proceeded in tandem with continued civil litigation before Judge Xinis over the government’s serial attempts to deport him to third countries including Uganda, Eswatini, Ghana, and Liberia. In August 2025, Abrego Garcia’s defense team moved to dismiss on grounds of vindictive and selective prosecution.

In a 32-page opinion issued Friday, Judge Crenshaw—a Nashville-based Obama appointee—granted the motion to dismiss, finding that although the record contained “insufficient evidence of actual vindictiveness,” the government had failed to rebut the presumption of vindictiveness that the court had previously found Abrego Garcia had established. Under decisions like Blackledge v. Perry, once a defendant raises a realistic likelihood of vindictive prosecution, the burden shifts to the government to offer objective, non-retaliatory reasons for its charging decision.

Judge Crenshaw concluded that “absent Abrego’s successful lawsuit challenging his removal to El Salvador, the Government would not have brought this prosecution.” He emphasized the timeline: federal authorities had closed the Homeland Security Investigations file on the 2022 traffic stop and reopened it only after Judge Xinis ordered the government to facilitate Abrego Garcia’s return. “What the Government labels as ‘new evidence’ was not new as a matter of law,” he wrote. The court found that public statements by then–Deputy Attorney General (now Acting Attorney General) Todd Blanche tied the renewed investigation directly to Abrego Garcia’s habeas victory, and that Associate Deputy Attorney General Aakash Singh’s “sustained oversight” of the matter—including treating it as a “top priority”—“directly tie[d] Main Justice” to the indictment. Judge Crenshaw expressly rejected the contrary testimony of then–Acting U.S. Attorney Robert McGuire that he alone had decided to charge, observing that the court “cannot ignore the chain of command that McGuire reported to: Singh, Blanche, and then [Pam] Bondi.”

The practical consequences are immediate and significant. Abrego Garcia is freed of federal criminal exposure in Tennessee, although the Department of Justice has stated it will appeal to the Sixth Circuit, calling the order “wrong and dangerous” and the judge an “activist” (LOL). The Department of Homeland Security separately emphasized that Abrego Garcia’s final order of removal remains in force and that “this Salvadorian is not going to remain in our country.” Doctrinally, the opinion is one of the most detailed recent applications of the vindictive-prosecution doctrine to a politically charged immigration matter, and it provides a roadmap—anchored in objective timeline evidence and senior-official communications—for defendants alleging prosecutorial retaliation.

***

Friday’s decisions, though pointing in different directions, reflect a common set of questions now before the federal courts: how much process is constitutionally due to noncitizens swept up in high-profile enforcement actions; how far the Executive may go in selecting targets based on protected expression or successful litigation; and what role Article III judges retain when Congress has channeled review through Justice Department–controlled tribunals. The Third Circuit’s en banc denial in Khalil narrows the federal forum for pre-removal constitutional claims and tees up a likely cert. petition that could reach the Supreme Court by later this summer. Judge Crenshaw’s dismissal in Abrego Garcia, by contrast, demonstrates the continuing vitality of judicial review of charging decisions, even where the executive invokes national-security and foreign-policy interests. It’s a mixed bag to be sure, but a powerful reminder of both the critical role federal courts are playing in these cases, and the limits they face even where the government’s misbehavior appears to be undeniable.

SCOTUS Trivia:
The Last Confirmed Nominee Who Didn’t Serve

Over the weekend, I briefly re-encountered the Netflix miniseries “Death by Lightning,” a four-episode arc about the Election of 1880 and the collision course it created for President James Garfield and Garfield’s would-be assassin, Charles Guiteau. The series itself is … okay (I’m a much bigger fan of the book from which it is ostensibly derived, Candice Millard’s Destiny of the Republic). But the acting is truly wonderful, including Nick Offerman as (a hilarious) Chester A. Arthur and Shea Whigham as (a dead-ringer for) Roscoe Conkling.

Conkling is the answer to one of my favorite Supreme Court trivia questions, as he is the last person to be nominated to the Court and confirmed by the Senate who did not actually serve. Instead, Conkling turned down a seat on the Court in 1882, at least largely due to continuing enmity toward Arthur (who had nominated him) over their rather sharp break on the topic of civil service reform.

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!

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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 last week, 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’s vide…

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As I explain below the fold, the Anti-Weaponization Fund is not principally a legal problem awaiting a judicial fix. It is a shockingly egregious political abuse—the President suing his own government, purporting to settle with himself, and routing nearly $2 billion from the Treasury to his own supporters as a not-so-subtle (and not-so-formal) reward, if not an incentive, for political violence. And the Constitution’s answer to political abuses of this kind and magnitude is a political remedy, not a legal one. In his majority opinion in NFIB v. Sebelius (the Affordable Care Act case from 2012), Chief Justice Roberts defended the Court’s endorsement of Congress’s power to adopt the individual mandate by noting that it is “not our job to protect the people from the consequences of their political choices.” As much of a judicial supremacist as I am, that sentiment is, for better or worse, an entirely correct (and, in the long term, normatively desirable) institutional assessment. One can believe in substantial judicial power without believing that literally every political dispute in our country can and should be resolved by unelected judges.

The real upshot of this latest headline (among so, so many other similar headlines) is that it is past time to reinvigorate impeachment—not because conviction is realistic in this Senate, or even because impeachment itself is feasible in this House, but because forcing every member of Congress to vote on the record whether this brazen, corrosive, and affirmatively dangerous corruption is impeachable is itself a point worth fighting for (and fighting with our friends over). Assuming the courts will save us absolves our political leaders of both responsibility and accountability for allowing this kind of mischief to continue, and it absolves all of us of our responsibility to refuse to tolerate those who would just as quickly shrug their shoulders and move on.

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

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

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According to at least some reporting, we may see on Wednesday something we haven’t seen in 15 years—Supreme Court justices testifying at a Senate hearing. Specifically, Punchbowl News first reported on May 7 that unspecified justices were expected to appear at a May 20 Senate Appropriations Committee hearing to testify in support of the Supreme Court’s $228.4 million appropriations request for FY2027. No such hearing has yet been publicly noticed. My own guess is that such a hearing is going to happen, but that it’s been postponed (and so won’t happen this week).

Regardless, even the possibility of justices appearing before Congress provides a good excuse to reflect on a topic I’ve discussed before—how much more often justices used to appear before Congress; when that stopped; and why my own view is that more frequent appearances would be a relatively low-cost means of restoring some of the interbranch dialogue that used to be common—and the accountability that could indirectly come with it.

To make a long story short, just like Congress conducts (and should conduct) oversight of the executive branch, it’s also entirely appropriate, in my view, for Congress to conduct oversight of the judicial branch—including, at least in some circumstances, of the Supreme Court itself. And although Chief Justice Roberts has adamantly opposed such appearances “in light of separation of powers concerns and the importance of preserving judicial independence,” (1) the reality is that it used to be far more common for justices to appear before Congress; and (2) my own view is that a return to that historical pattern would be a salutary development.

More on that below. But first, the news.

On the Docket

The Merits Docket

On Thursday, the Court handed down two rulings in argued cases.

In Montgomery v. Caribe Transport II, LLC, Justice Barrett wrote for a unanimous Court in holding that the Federal Aviation Administration Authorization Act (the FAAAA) did not preempt a state-law negligent-hiring claim arising out of a serious highway crash. Even though the statute broadly preempts state laws related to the prices, routes, and services of the trucking industry, the Court held that this suit fell within the FAAAA’s “safety exception”—which provides that the federal preemption the statute creates “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” Justice Kavanaugh wrote a concurring opinion, which Justice Alito joined.

And in Jules v. Andre Balazs Properties, Justice Sotomayor wrote for a unanimous Court in holding that a federal court that previously stayed claims pending arbitration under Section 3 of the Federal Arbitration Act retains jurisdiction to confirm or vacate the resulting arbitral award—even if the post-arbitration motions would not independently satisfy federal jurisdictional requirements. That holding might seem obvious, but a circuit split had arisen after and in light of a 2022 Supreme Court decision that had concluded that federal courts lacked jurisdiction to entertain a standalone confirm-or-vacate action (versus a motion to confirm or vacate in an already pending action). Sotomayor once again is showing off her speed; this majority opinion came just 45 days after argument—giving her the first-, second-, and third-fastest majority opinions of the term.

(I covered both of those rulings Thursday afternoon in the first “Decision Day Summary” video—one of the new features that we launched on Thursday as a thank you for paid subscribers.)

Perhaps the most important thing the Court did on the merits docket last week came in the Alabama redistricting cases, in which, instead of granting Alabama’s applications to stay three district court injunctions (so Alabama could redistrict immediately), the Court granted certiorari on the merits (including granting certiorari “before judgment” in one of the cases), vacated those injunctions, and remanded for further proceedings in light of Callais. That order provoked an unusual (and sharp) dissent from Justice Sotomayor, joined by Justices Kagan and Jackson. As Sotomayor explained, one of those district court rulings had blocked Alabama’s 2023 map not just on VRA grounds, but also as an unconstitutional racial gerrymander in violation of the Fourteenth Amendment—a holding entirely unaffected by Callais. As she wrote, “That constitutional finding of intentional discrimination is independent of, and unaffected by, any of the legal issues discussed in Callais. Vacatur is thus inappropriate and will cause only confusion as Alabamians begin to vote in the elections scheduled for next week.” Given that vacatur is itself an exercise of the Supreme Court’s equitable authority, one might’ve thought that the Purcell principle should have augured against any intervention. Alas.

Of course, as Sotomayor stressed at the end of her dissent, the district court is free to simply re-adopt its findings of discriminatory intent and a Fourteenth Amendment violation on remand. But it stands to reason that, if that happens, the Eleventh Circuit (or, failing that, the Supreme Court) will stay any new injunction against Alabama’s redistricting efforts on the ground that it’s … too close to the election under Purcell. One might call such an outcome the very definition of chutzpah, but that ship has sailed. (Justice Thomas subsequently denied Alabama’s emergency applications as moot.)

The Emergency Docket

As expected, it was a busy week on the emergency docket, too.

Let’s start with the mifepristone case. On Monday afternoon, shortly before the (first) arbitrary deadline that Justice Alito had imposed on his own administrative stays, he extended the deadline for three more days—to 5 p.m. ET on Thursday. But 5 p.m. Thursday came and went without any further action, so the Fifth Circuit’s ruling went back into effect, at least briefly. At 5:26 p.m., the full Court ruled—and issued a stay of the Fifth Circuit’s ruling pending appeal over dissenting opinions from Justices Thomas and Alito.

The upshot is that mifepristone will remain generally available without an in-person doctor visit until one of two things happens: the Supreme Court conclusively resolves this case in Louisiana’s favor, or the FDA revokes its authorization(s). Once again, and frustratingly, the full Court said nary a word about why it was staying the Fifth Circuit’s ruling. That silence was not only amusingly highlighted by Justice Alito in his dissent (LOL), but by the Wall Street Journal’s editorial board—which claimed that it proves that critics of the emergency docket only care about the results. Alas, I’ve responded to this strikingly lazy and superficial claim before.

Speaking of the dissents, they are both extraordinary in their own respect. First, Justice Thomas went full Comstock Act, arguing that all dispensation of mifepristone through the mail is illegal—never mind that the Department of Justice took a different position as recently as 2022. Putting aside the (well-documented) weaknesses of the Comstock Act arguments, Justice Thomas is simply wrong to argue that parties “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.” As the Trump cases have regularly illustrated, a party can be irreparably harmed (at least in view of a majority of the current Court—including Justice Thomas) by a court order that makes it more difficult for them to break the law. Justice Thomas also apparently saw no problem with the Fifth Circuit issuing nationwide relief under the APA—even though he joined a 2023 concurrence by Justice Gorsuch arguing that such universal vacaturs were likely not authorized by the APA. Needless to say, that inconsistency was … not addressed.

And then there’s Justice Alito’s dissent. Alito opened by claiming that “[w]hat is at stake is the perpetration of a scheme to undermine our decision in Dobbs.” Of course, Dobbs insisted that it was returning the question of abortion to the states, whereas the Fifth Circuit ruling would’ve required in-person doctor visits on a nationwide basis. In any event, though, the FDA first got rid of the in-person doctor-visit requirement in 2021—before Dobbs was decided. So the “scheme to undermine Dobbs” began … before Dobbs.

In any event, the crux of Alito’s dissent is based on the argument that the manufacturers won’t be irreparably harmed by the Fifth Circuit’s ruling—because, he claims, they can’t prove that the FDA would punish them if they continue to distribute mifepristone in a manner that’s inconsistent with the extant FDA regulations. Here, Alito is just reprising his 2023 mifepristone dissent. As I noted then,

First, the Court has never suggested that a party must show that it will be prosecuted to show that a law that clearly applies to it (and induces it to take actions to avoid violating it) causes harm. Second, even if this FDA would not enforce the Food, Drug, and Cosmetic Act against Danco in a world in which Judge Kacsmaryk’s order was in effect, that’s no guarantee that a future FDA wouldn’t. And if you’re Danco (or its investors, or its insurers, or its counterparties, or…), that specter is not remotely hypothetical.

In other words, Alito’s “lack of irreparable harm” argument is based on a hypothetical that is at odds with common sense (that a company wouldn’t take steps to comply with the law even if they had reason to suspect that the law might not be enforced). Meanwhile, like Justice Thomas, Justice Alito has nothing to say about the applicants’ likelihood of success on the merits—even though we’re constantly told that this is the most important aspect of the Court’s consideration of emergency applications (except, at least, when it isn’t). That omission is all the more problematic because, as Adam Unikowsky and Michael Dorf (among others) have both pointed out, Louisiana almost certainly doesn’t have standing.

And then there are the typos. I wouldn’t usually make hay out of such pedantry, but it’s more than a little ironic that Alito’s dissent, which was apparently rushed to comply with the entirely arbitrary deadline that Justice Alito had imposed on his own administrative stay, was also quite sloppy. The most Freudian of the slips was referring to the Alliance for Hippocratic Medicine case, in one citation, as Alliance for Hypocritic Medicine (indeed, it took two tries to correctly fix this one). But even the Supreme Court’s own “revisions” document, which somehow doesn’t include the first fix to the “Hypocritic Medicine” typo, tallies 18 changes in an eight-page opinion. Maybe Alito should have given himself (and the rest of us) some more time?

Just about 25 minutes after the full Court granted a stay in the mifepristone case late Thursday afternoon, it also granted emergency relief to Texas—to vacate a stay of execution the Fifth Circuit had entered in the case of death-row prisoner Edward Lee Busby. All three Democratic appointees dissented. As Justice Jackson explained in a short dissenting opinion that was joined by Justice Sotomayor,

Edward Busby’s expert concluded that Busby is intellectually disabled. Texas’s expert agreed. Recognizing the constitutional implications of that assessment, Texas joined Busby in asking the Texas courts to find Busby ineligible for execution. After the Texas courts refused, Texas changed its mind, opting to proceed with the execution it once tried to abandon.

Thus, “the Court grants emergency relief to ensure that Texas’s current inclination (that it must execute Busby tonight) wins out over its former one (that it could not execute Busby at all). In capital cases, we rarely intervene to preserve life. I cannot understand the Court’s rush to extinguish it, much less in the circumstances of this case.” Yet again, though, the death docket appears to move almost entirely in one direction.

Finally, Friday night, the Court summarily denied, over no public dissents, the emergency application that Virginia had filed in a long-shot bid to restore its new congressional map. The ruling generated a lot of headlines about the Court’s inconsistency and hypocrisy. My own view is that this outcome was both inevitable and correct. I’ve been plenty critical of how the justices have handled election-related cases, especially over the last three weeks. But the grounds on which Virginia was seeking relief included substantive arguments with which I vehemently disagree. Those arguments are not just unpersuasive, but they would also open the door to a heck of a lot more mischief going forward than they would cut off here. Except for those who think the law just doesn’t matter at all, that should’ve mattered here. One can think that the Court has been inconsistent and hypocritical in other election cases (see the above discussion of Alabama), and still think that Virginia’s application was a fool’s errand.

The Week Ahead

Given that the justices met in Conference last Thursday, we expect a regular Order List at 9:30 ET this morning. And the Court is also expected to hand down additional rulings in argued cases at 10:00 ET this Thursday, May 21. This is likely to be the pattern from now until well into June, when the Court may start adding additional decision days depending upon how much of a backlog it has to clear out. I’m not aware of any pending emergency applications likely to produce a full Court ruling this week. But it’s 2026, so anything is possible.

Miscellaneous

Finally, I wanted to flag a couple of media pieces that folks might find fun and/or interesting.

First, last week’s episode of “Last Week Tonight with John Oliver” was devoted almost entirely to a deep dive into the shadow docket (and yes, I make a cameo—apparently as John Oliver’s son, Nathaniel). I am obviously biased, but I found the discussion to be remarkably substantive and a fair recounting of some of the most significant critiques of the Court’s behavior.

Second, for those who would prefer a more back-and-forth conversation on the topic, I joined William and Mary law professor Jonathan Adler and host Julie Silverbrook on the latest episode of the National Constitution Center’s “We the People” podcast to discuss … the emergency docket. There’s a lot on which Adler and I disagree (not the least of which is the Knicks vs. the Sixers), but I think folks may find the exchanges illuminating.

The One First “Long Read”:
Crossing First Street

The possibility that justices may soon appear before the Senate Appropriations Committee (or one of its subcommittees) is being treated as something of a novelty—and, in the current environment, it is. But for most of the Supreme Court’s modern history, it was anything but. Justices regularly trekked across First Street to testify before Congress, on subjects ranging from the federal judiciary’s budget to the mechanics of the federal courts to broader questions of judicial administration. The two-justice ritual at the appropriations subcommittees, in particular, was for decades a fixed point on the congressional calendar—a low-drama exercise in interbranch housekeeping that nonetheless put sitting justices in the same room as the representatives and senators who fund and oversee the third branch.

As Jennifer Manning and Barry McMillion documented in a 2023 Congressional Research Service report, between 1960 and 2022, there were at least 93 committee or subcommittee hearings that included an appearance by at least one sitting Supreme Court justice. Indeed, at least one justice appeared before Congress every year from 1960 to 2011. And although the majority of those appearances have been specifically before the appropriations committees and tied to the Court’s annual budget request, the CRS Report flags two key caveats. First, “the questions posed to the Justices during appropriations hearings have not been limited solely to its request. For example, Justices have been asked questions related to why the Supreme Court itself has not adopted the Code of Judicial Conduct, how the judiciary handles workplace misconduct issues, and the confirmation process for federal judges.” And second, as Senator Leahy noted in 2011, there has been a distinct (if not as frequent) “tradition of Justices testifying before Congress on matters other than their appropriations requests, a tradition which included appearances by Chief Justice Taft and Chief Justice Hughes in the 1920s and 1930s, as well as by Justice Jackson in 1941.”

As the CRS Report demonstrates, the practice of justices appearing on substantive topics has deep pre-1960 roots. As I’ve explained before, Chief Justice (and former President) William Howard Taft was a frequent and enthusiastic congressional witness in the 1920s, lobbying personally for what became the Judiciary Act of 1925—known both at the time and since as the “Judges’ Bill,” because of Taft’s (and the Court’s) instrumental role in spearheading it. Justice Felix Frankfurter testified on judicial administration matters; Justices Tom Clark, Byron White, and Lewis Powell appeared before committees considering structural reforms to the federal courts. Chief Justice Warren Burger was a near-constant presence, pressing his court- (and Court-)management agenda before Senate and House committees alike.

Perhaps the most well-known modern episode came in March 2001, just a few months after the Court’s decision in Bush v. Gore, when Justices Anthony Kennedy and Clarence Thomas appeared before the House Appropriations Subcommittee on Commerce, Justice, State, and the Judiciary to discuss the Court’s budget. Representative José Serrano (D-N.Y.) used part of his time to press Justice Kennedy, in open session, to explain Bush v. Gore to a public that had real questions about how five justices had effectively settled a presidential election. Kennedy declined to relitigate the merits of the decision, but he reflected at some length about the difficult position the Court was in, the public trust the ruling had jeopardized, and the Court’s own conception of its role.

The exchange, which is archived on C-SPAN’s website, is worth noting for what it reveals about the norms of the era: a sitting justice appeared at a scheduled hearing, fielded pointed questions from a member of Congress about the Court’s most controversial recent ruling, and responded in a public forum. That kind of discussion would be difficult to replicate today. The routine of appearing before Congress did not just facilitate budget oversight; it also created a setting in which justices could be asked difficult questions and could demonstrate a willingness to engage with the political branches on terms beyond the Court’s own choosing.

That norm of regular engagement began to thin out in the 2010s. The last time sitting justices testified before a Senate committee was in 2011, when Justices Stephen Breyer and Antonin Scalia appeared to discuss the constitutional role of federal judges. Budget testimony on the House side limped along a bit longer, but not every year. And no justices have appeared before a House Committee since 2019, when Justices Samuel Alito and Elena Kagan appeared before a House appropriations subcommittee in support of the Court’s funding request. Ever since, the Court has been represented at these hearings only by its administrative officers.

The reasons for this shift were never formally announced. But the timing tracked the increasingly fraught politics around the Court. After all, proposals to require televised arguments, mounting criticism of the justices’ ethics, the 2016 confirmation standoff, a steady drumbeat of criticism over the Court’s rulings, and growing support for structural reform proposals have perhaps made an open hearing room seem less like a routine obligation and more like an unnecessary risk.

On a deeper level, the justices turning their back on congressional hearings dovetails with a broader move on the Court’s part away from any kind of institutional conversation with Congress. As I’ve noted before, the Chief Justice’s Year-End Report started as an annual invitation to a dialogue between Congress and the Court. But Chief Justice Roberts stopped using it that way quite visibly in 2009—reflecting this broader instinct not to invite what might be awkward conversations for the current Court.

That instinct is understandable, but the cost of that withdrawal has been considerable. The Court has fewer and fewer occasions on which any individual justice answers unscripted questions in public, under oath or not, about anything—and the institution as a whole has correspondingly fewer ways to demonstrate that it is accountable to the coordinate branches in even the most modest sense. Budget hearings may not be the place to relitigate Dobbs or to interrogate a justice about a particular recusal decision. But they are an opportunity for justices to explain how the judiciary spends public money, to make the case for resources the courts genuinely need (security, technology, judgeships), to react to some of the myriad threats federal judges from across Article III are currently facing, and to engage with members of Congress on matters of judicial administration where the branches have overlapping responsibilities. To me, at least, those are all conversations that the Court would benefit not only from having, but from having in the open.

A return to regular testimony would also help repair something subtler—and something more fundamental to the constitutional structure. The separation of powers does not mean that accountability is anathema to independence. Congress holds the power of the purse over the judiciary for a reason: it is one of the many mechanisms through which the elected branches can ensure that an unelected Court remains answerable, in at least some measure, to the public it serves.

When justices turn their backs on the legislature, they do not vindicate judicial independence; they erode the very norm of interbranch engagement that makes independence legitimate in the first place. The longer the justices stay away from the Hill, the more each appearance takes on outsized significance, inviting heightened scrutiny, and making the next one easier to decline. Restoring regularity would reduce the pressure on both sides: members would have less incentive to grandstand at a hearing they expect to see again next year, and justices would have less reason to treat any given appearance as an exceptional event requiring special justification. A Court that regularly accounts for itself before Congress would not, in my view, be a weakened Court; it would be one that does more to earn the structural deference our system asks the other branches to extend.

If it goes forward anytime soon, the hearing on which Punchbowl reported would be a welcome step. The better outcome would be if we could go back to such appearances by the justices not being newsworthy at all.

SCOTUS Trivia:
Sitting Justices Testifying at Confirmation Hearings

As noted above, justices have appeared at 93 different congressional hearings since 1960. Two of those were confirmation hearings—when sitting justices were nominated to the position of Chief Justice.

The first two times a sitting associate justice was nominated to be Chief Justice (Edward Douglass White in 1910 and Harlan Fiske Stone in 1941), they both declined to appear to testify in support of their nomination. But in 1968, when President Lyndon Baines Johnson nominated his close personal friend Abe Fortas to succeed Earl Warren as Chief Justice, Fortas made the ill-fated choice to appear in person. The four-day hearing not only put him at loggerheads with both Republicans and conservative Democrats over some of the Warren Court’s more controversial decisions (especially when it came to pornography), but it also brought out new details about just how close his personal connection was to Johnson, and how often he continued to informally consult with Johnson even as he was sitting on the Court. Fortas thus got tagged with both the full criticisms of the Warren Court and growing, bipartisan opposition to the (by-then) lame-duck President Johnson. After a remarkably poor showing on a procedural vote in October 1968, Fortas asked Johnson to withdraw his nomination—although he remained on the Court for another seven months before resigning.

The other example came in 1986, when then-Associate Justice William H. Rehnquist testified in support of his nomination to become Chief Justice. Rehnquist also faced sharp questioning—in his case, over allegations that he had personally challenged or harassed minority voters as a Republican “ballot security” official in Phoenix in the 1960s and had been less than candid about that activity during his 1971 confirmation hearing to be an associate justice. These were part of broader Democratic attacks—led by Senators Edward Kennedy and Howard Metzenbaum—that his record on race and individual rights placed him “outside the mainstream” of American constitutional law. Nevertheless, Rehnquist was ultimately confirmed, 65-33.

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As I noted this morning, 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’s v…

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First, on each day that the Supreme Court hands down rulings in argued cases (starting today), I’ll be recording a brief video summary of the decision(s) that will be sent to paid subscribers. Being me, those summaries will likely come with some commentary, too. The timing will vary a bit, but my goal will be to have those videos to you no later than mid-afternoon on each of the remaining decision days—whether the decisions are “big” or not.

Second, and related, I’ve also opened up the “chat” feature on the Substack app for paid subscribers—where I’ll aim to share thoughts about any breaking Supreme Court news, including decisions in argued cases. As circumstances permit, I’ll do my best to answer your questions, as well (and I hope you’ll chat not just with me, but with each other).

But regardless of whether you’re already a paid subscriber, are now considering becoming one, or are just here to hate-read these posts (whether because you’re a justice or not), I can’t express enough how grateful I am for—and to—all of you. As Karen and I have said before, “One First” has succeeded beyond our wildest expectations when we launched it in November 2022. And all of you are a big part of why—even the Yankees fans and Williams College alumni among you.

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

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I really didn’t want to write about redistricting again, but events in the latter part of last week seemed to demand it. It’s not just the brazen racism we’ve seen in some of the state legislatures that are rushing to eliminate majority-minority districts (e.g., “y’all need to shut up, boy”), or the not-exactly-obvious reading of Virginia law that the Virginia Supreme Court adopted to nix Virginia voters’ attempt to belatedly redraw the Commonwealth’s congressional districts, but also Alabama’s … aggressive … requests for emergency relief to the U.S. Supreme Court to let it get out from under earlier district court rulings—including ones the Supreme Court affirmed on the merits—so it can re-draw its maps in time for this cycle.

All of this came the same week that Chief Justice Roberts, in remarks at the Third Circuit Judicial Conference, complained about the public perception that the Court is “political.” In his words, “I think [people] view us as purely political actors, which I don’t think is an accurate understanding of what we do.” Shortly after that, he added that the Court is “simply not part of the political process.”

Roberts may tell himself that the Court is not part of the political process, but the (growing) evidence is overwhelmingly to the contrary. Indeed, the Court inserted itself into the midterm cycle—and set off this race to the bottom—knowingly (if not deliberately), both in what it ruled in Callais and in its willingness to issue the judgment immediately. That latter development was an unmissable signal that it was not averse to having this exact kind of chaos unfold on the ground—a point Justice Jackson made explicitly in her dissent from last Monday’s order. In her words, “as always, the Court has a choice.” By issuing the Callais judgment immediately, the majority “unshackles itself from [doctrinal] constraints . . . and dives into the fray.”

This, to me, is the key point: whatever one thinks of the ruling in Callais, the Court chose this chaos. And now that it is on the receiving end of applications from Alabama (and with an application from Virginia apparently on the way), to suggest the Court is not “part of the political process” is to deny the entirely obvious (and entirely predictable) consequences of the Court’s own behavior—not just in Callais, but before April 29 and since. Worse than that, all of these developments rather fatally undermine what I’d always understood to be the animating purpose of the so-called “Purcell principle”—which makes sense only as a strong norm against federal judicial intervention in the middle of election cycles. The Court’s own interventions are now wreaking havoc—and a majority of the justices either don’t think it’s their fault, or don’t care that it is. Either way, they don’t seem to mind the inconsistency—in a context in which it’s having the remarkably coincidental effect of benefiting Republicans.

The title of today’s post comes from a meme that’s derived from a sketch on the Netflix comedy series, I Think You Should Leave with Tim Robinson. In the sketch, after a hot dog-shaped car crashes into a clothing store, a man dressed in a hot dog costume attempts to blend in with the employees and customers trying to figure out what happened. As the costumed man says, “We're all trying to find the guy who did this.”

It’s a funny sketch, except that here, the “store” is the stability of our electoral process, and the guy in the hot dog costume is Chief Justice Roberts.

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

On the Docket

The Merits Docket

Besides Monday’s order agreeing to issue the judgment in Callais immediately (about which I wrote Monday night), it was a very quiet week on the merits docket. Monday’s regular Order List included no new grants of certiorari (nor especially noteworthy denials). And we didn’t get any new rulings in argued cases, either. Given what’s coming up on the Court’s calendar (about which more in a moment), it was probably the quietest week on the merits docket that we’ll see until July.

The Emergency Docket

The emergency docket is, as is so often the case, a very different story.

Let’s start with mifepristone. Last Monday, Justice Alito granted a pair of administrative stays of the Fifth Circuit’s May 1 ruling that would have required in-person doctor visits for all mifepristone prescriptions nationwide. But as I noted last week, Alito imposes deadlines on administrative stays he doesn’t like—and his first deadline runs out today at 5 p.m. ET. That doesn’t mean the Court will rule by 5 p.m. today; there are lots of examples of Alito extending his deadlines (sometimes multiple times in the same case—as we saw, for instance, during the 2023 mifepristone litigation). But we should see either a full Court ruling or an extension sometime today.

And then, on Friday, Alabama filed three emergency applications seeking to get out from under district court injunctions that, for the moment, are blocking the Yellowhammer State from redrawing its congressional districts until after the 2030 Census. It also asked the Court to rule, one way or the other, by May 14 (i.e., Thursday). Justice Thomas, as Circuit Justice for the Eleventh Circuit, called for responses to the applications by 5 p.m. today, so these will also likely move very quickly.

The Week Ahead

Today is the last Monday until the end of the term on which we won’t get a regular Order List.1 But we expect one or more decisions in argued cases starting at 10 a.m. ET this Thursday (May 14)—kicking off a stretch in which the justices have at least one public session scheduled every week until their summer recess. The Court can always add additional public sessions (and may well do so as we get close to the end of June). But for now, we can expect a steady stream of merits rulings on Thursdays, beginning later this week.

And, of course, we also expect at least some movement on the mifepristone and Alabama applications. We may also see an application from Virginia challenging Friday’s Virginia Supreme Court decision, although my own view is that such an application has just about no chance of succeeding (more about why below). But that could also come (and go) quickly this week.

The One First “Long Read”:
The Political Court, the Midterms, and … Purcell

Before turning to the Supreme Court’s responsibility for what’s happening on the ground, it might be worth describing what’s happening on the ground—especially for those who haven’t been following closely. What follows are capsule summaries of the efforts afoot in four states (Louisiana, Alabama, Tennessee, and Florida) to respond directly to Callais—along with other developments we might see in the days to come.

What’s Happening on the Ground

Louisiana

Louisiana is ground zero for the post-Callais redistricting wave. Hours after the ruling, Gov. Jeff Landry issued an executive order suspending the state’s May 16 congressional primary—just as early voting was beginning—and pushed the primary back to July 15 (or a later date set by the legislature) to give lawmakers time to enact a new map. And as noted above, the Supreme Court last Monday granted the Callais challengers’ request to issue its judgment immediately rather than wait the customary 32 days, clearing the way for the state to redistrict in time for the 2026 elections. The legislature scheduled public hearings on a proposed new map that would include only one majority-Black district, and analysts expect Republicans (who currently hold four of six seats) to gain one or even two additional seats by reverting District 6 to a Republican-leaning configuration and potentially targeting the New Orleans-based District 2 as well. Lawsuits have already been filed in state and federal court challenging Landry’s primary postponement, but it’s not clear whether (or to what extent) those suits have a serious chance of succeeding.

Alabama

Alabama has operated since 2023 under a federal court-ordered map (stemming from the Supreme Court’s decision in Allen v. Milligan) creating a second substantially Black district now held by Democratic Rep. Shomari Figures. It also moved quickly to seize on Callais. As noted above, on Friday, Alabama asked the Supreme Court to pause the injunctions barring it from using the 2023 legislatively drawn map (drawn in response to Milligan) that the lower courts had struck down as a Section 2 vote-dilution violation. Also late last week, the legislature (which had been called into special session after Callais) enacted, and Governor Ivey signed into law, Act 2026-612—which provides for a special primary election for affected congressional districts “[i]n the event that” a federal court, “by issuing a judgment or by vacating an injunction, permits the reinstatement of the” 2023 Plan. The state’s primaries are currently scheduled for May 19, hence Alabama’s insistence that the Supreme Court rule by this Thursday.

Tennessee

Tennessee Gov. Bill Lee called a special legislative session shortly after Gov. Ivey did the same in Alabama, telling reporters that the General Assembly has “a responsibility to review the map and ensure it remains fair, legal, and defensible” in light of Callais. President Trump publicly stated he had spoken with Lee about redrawing the lines, and Sen. Marsha Blackburn called for a map giving Republicans an advantage in all nine of the state’s congressional districts. The clear target is the Memphis-based 9th District held by Rep. Steve Cohen—the only Democrat in Tennessee’s congressional delegation and a majority-Black district that Republicans have long wanted to crack but were constrained from dismantling under prior Section 2 doctrine. On Thursday, the legislature passed a new map splitting up that district. Tennessee’s August 6 primary leaves more procedural runway than Alabama or Louisiana, though the state would still need to reopen its candidate filing period, which closed March 10.

Florida

Florida’s redistricting effort overlapped with—and was explicitly justified by reference to—Callais. The Florida Legislature passed a new 28-district congressional map on April 29, 2026, the same day the Court handed down Callais, and Gov. Ron DeSantis signed the map into law last Monday. DeSantis had previously cited the looming Callais ruling as justification for redrawing the map, which is projected to net Republicans up to four additional U.S. House seats. The Equal Ground Education Fund and a group of Florida voters filed suit the same day the bill was signed, alleging that the new plan violates the state constitution’s Fair Districts Amendment prohibition on partisan gerrymandering. My own view is that there’s more than nothing to this argument, but all seven of the Florida Supreme Court’s current justices are Republican appointees—including six who were appointed by DeSantis.

Other states under consideration

Beyond the four states actively redistricting, several others are exploring action. South Carolina Gov. Henry McMaster and Mississippi Republicans have urged their legislatures to draw new lines, with each state having a single Democratic-held seat that the GOP would like to eliminate. And, of course, this is all just for this cycle; even states that have said they won’t pursue redistricting this year (like Georgia) have made no bones about their plans to do so next year, in time for the 2028 cycle.

In the other direction, as noted above, the Virginia Supreme Court on Friday, by a 4-3 vote, struck down Virginia’s state constitutional referendum to adopt a new map. Over the weekend, there was some suggestion that Virginia Attorney General Jay Jones will seek emergency relief from the U.S. Supreme Court. Of course, the U.S. Supreme Court generally lacks the jurisdiction to review a state supreme court’s interpretation of state law. It’s possible Virginia will try to invoke the “independent state legislature” doctrine as a basis for invoking the U.S. Supreme Court’s jurisdiction, but (1) that doctrine is one that those genuinely committed to the Constitution’s distribution of power between the federal government and the states should really despise; and (2) in any event, I don’t see any of the justices being in any hurry to give it teeth here.

Thus, all of these post-Callais developments are likely to give Republicans an extra 5–10 seats (depending upon what happens in November) in those states that are redistricting. And that comes alongside the Virginia Supreme Court ruling denying Democrats an extra 2–4 potential seats. It’s entirely possible that those margins will be a blip come November; wave elections have a way of turning these kinds of developments into marginalia (if not of turning gerrymanders into dummymanders). But there are still two points that can’t be denied: (1) this all just sucks; and (2) for three different reasons, none of it would be happening but for the Supreme Court.

The Supreme Court’s Responsibility

The three vectors along which the Court is responsible are easy enough to describe.

First, in its 5-4, 2019 ruling in Rucho, the Court knocked down the door to a partisan gerrymandering race to the bottom by holding that federal courts lack the ability to adjudicate partisan gerrymandering claims. Yes, there was partisan gerrymandering before Rucho, but it is objectively true that it has accelerated dramatically since then—again, not always to favor one party over the other, but to generally minimize the power of whichever party is in the minority in the body drawing the maps.

Second, taking together the rulings in LULAC (the Texas redistricting case) and Callais, the Court knocked over the last roadblock to states wiping out the political power not just of the minority party, but of minority groups within the state. It’s no overstatement to describe Section 2 of the Voting Rights Act as having served as a meaningful limit on partisan gerrymandering—in red and blue states, alike. But with Callais ratcheting up the intent requirement to prove a Section 2 violation, and with LULAC showing how the Supreme Court will treat district court rulings that find discriminatory intent, that roadblock is gone. Indeed, Section 2 was, in some respects, limiting the extremism of partisan gerrymandering. Without that limit, we could easily end up with all-Republican congressional delegations in Alabama, Louisiana, and Tennessee—states in which, in 2020, 37%, 40%, and 37% of voters ticked the box for Joe Biden. And whether or not blue states would’ve behaved so aggressively on their own, without Section 2, they have no legal reason, at least under federal law, to not respond in kind.

Third, although neither of those first two points are new, the current chaos is a direct result not just of the timing of the merits decision in Callais, but of the Court’s technical order agreeing to issue the judgment immediately last week. That intervention was understood—by everyone—as the justices signaling their willingness to have Callais go into effect this cycle, even though the Court could easily have structured and timed its ruling to prevent exactly that result. Again, back to Justice Jackson’s dissent from the judgment order, what we’re seeing play out in front of us is the result of a choice on the Court’s part. One can think Callais was rightly decided and still think the Court should’ve both anticipated and taken steps to avoid these immediate consequences.

And although the Court’s choice to not do so might seem defensible in a vacuum (and has been loudly defended by right-wing commentators), it runs into two problems for anyone who thinks that the Court should be consistent: For starters, it turns Purcell entirely on its head. The Court’s intervention in Louisiana will have the direct result of already-cast primary votes being thrown out. Likewise, if it grants the emergency applications in the Alabama cases, that will have the direct result of a federal court clearing the way for Alabama to redraw its primary maps within one week of the primary. There’s no universe in which Purcell makes sense as a limit on the equitable powers of lower federal courts but not the Supreme Court. And yet, here we are.

And Purcell aside, granting emergency relief in the Alabama cases, in particular, would bespeak blinding hypocrisy on the Court’s part—not only because it was this same Court that agreed with the district courts three years ago that Alabama had violated both the VRA and the Equal Protection Clause (in a majority opinion by Chief Justice Roberts), but because Justice Alito’s majority opinion in Callais labored mightily to distinguish that ruling—not to overrule it. (Among other things, and unlike what was true in Callais, one of the grounds on which Alabama’s 2021 map was struck down was as an unconstitutional racial gerrymander, and not just as a violation of the VRA.)

It’s technically true that the injunctions Alabama is now seeking to stay are not the same ones the Supreme Court affirmed in 2023. But they rest on the same legal conclusions about Alabama’s discriminatory intent. To nevertheless allow Alabama to effectively frustrate the mandate from the Court’s 2023 ruling in Allen v. Milligan would make it clear to everyone that this was all just a lie on the Court’s part—and that a majority of justices really are willing to rely on procedural rules as an excuse for forcing states to use unlawful maps when it benefits Republicans, but not when it harms them.

During the oral argument in Gill v. Whitford (one of the cases leading up to Rucho), Chief Justice Roberts raised the concern that the Court’s intervention in partisan gerrymandering cases might make the Court look too political, thereby undermining its legitimacy. As Roberts put it, if the Court started approving or striking down maps based on the proffered criteria for unconstitutional partisan gerrymandering,

the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.

If the hot dog costume fits…

SCOTUS Trivia: The Natural Court

Last week’s Justice Thomas-themed trivia got me going down a series of rabbit holes that led me to realize that I’ve never before mentioned the concept of a “Natural Court” in this newsletter. The term itself is a creature of mid-twentieth-century political-science scholarship about the Court, and has come to refer specifically to each contiguous period of time during which there are no new vacancies on the Court. Thus, we’re currently in a “Natural Court” that began on June 30, 2022—the day Justice Jackson joined the bench. (There is some debate about whether the period should be understood to end when a vacancy is created, or only when it is filled—which can cause a bit of variance in the data. But for purposes of this post, I use the latter, more common understanding; a Natural Court persists until someone new joins it.)

One can find lots of interesting trivia when looking at the different Natural Courts across history. But my favorite big trivia about the concept—and one I’ve alluded to before—is the trivia about which were the two longest Natural Courts, and the enormous gap between them and the third.

The two longest contiguous periods of service by the same justices are somewhat well-known among Supreme Court historians—the last 11+ years of the Rehnquist Court (from August 1994–September 2005); and the nearly 12 years of the Marshall Court from February 1812–September 1823. Indeed, a lot of law professors and currently practicing lawyers went to law school during the former period, myself included.

But the real trivia here is who’s in third place—because it’s a much shorter period. It turns out that the third-longest period with no membership changes on the Court belongs to the Waite Court—which stayed together for only five years and nine months (2,115 days, to be precise) from April 1882 to January 1888. That figure puts it exactly nine days ahead of the fourth-longest Natural Court (the Burger Court from December 1975 to September 1981), but still way behind the top two.

Today, in contrast, is the 1,411th day of the current Natural Court. Whether or not we make it to 2,115, I don’t think it’ll challenge either of the frontrunners.

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!

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You have this phenomenon where at the beginning of the term. You know, the media will say, here are the cases to watch, and you know they'll list a couple big cases and then if one of those big cases turns out to be unanimous or turns out to be 7-2 or to have a scramble all of a sudden it falls out of the narrative and it wasn’t really one of the big cases. Because then the narrative will be like, well, but all the big cases came out by party of appointing president, right? So it’s, it’s really a numbers game, and I think you have to read very critically about the Court. I think it gets maybe more clicks or more people worked up if the Court is portrayed that way, but it’s just not consistent with the data.

There is, as you might imagine, tons of evidence to the contrary—in both directions. The case about whether President Trump could be disqualified from the ballot in Colorado was, of course, “big” even though the ultimate vote count was 9-0. Ditto the TikTok case from last term. Likewise, the tariffs case from earlier this term was obviously a “big” one, even if the Court split in a slightly unusual way (with Justices Gorsuch and Kavanaugh trading places within one of the two otherwise-conventional 6-3 splits).

On the flip side, other than the petitioner, his counsel, and a handful of federal prisoners, I suspect no one will count the Court’s ruling from January of this year in Bowe v. United States among the “big” rulings of the current term—even though the Court split 5-4 with Chief Justice Roberts and Justice Kavanaugh joining the Democratic appointees in the majority. Likewise, I doubt you remember Williams v. Reed, Hewitt v. United States, or Monsalvo Velazquez v. Bondi from last term—all three of which were also 5-4 splits with the Chief Justice and one of the other Republican appointees joining the three Democratic appointees in the majority.

And I’ll just say, from the perspective of how the CNN team of which I’m a part covers the Court, how much material we prepare in advance of the Court’s rulings in cases is guided by our own internal assessment of the case’s bigness—which, quite obviously, is a call we have to make long in advance of the ruling itself or, obviously, the ultimate vote count. My sense is that just about everyone who regularly (and comprehensively) covers the Court operates the same way—which ought to be proof enough of how shallow the after-the-fact circular-labeling argument really is.

But the (easily debunked) superficiality of the claim notwithstanding, there is a more interesting, nuanced conversation to be had about how, methodologically, we should both identify and count the Court’s “biggest” rulings—and why such a malleable and necessarily subjective categorization is still a relevant one in assessing the Court’s work. Specifically, it seems to me there are at least four points worth making, and I’ll try to unpack each of them below the fold:

1. The idea that the justices divide ideologically in most of the “big” rulings on the merits docket is backed up by both common sense and data;

2. Whether a case is “big” or not reflects a combination of political, legal, social, and cultural factors that will necessarily vary in both degree and proportion across different cases, that tend to be assessed in advance, and that different people will assess differently;

3. In a minority of cases, the outcome (but not the vote count) will dictate whether a case is “big” or not (including some cases in which it’s the Court’s ideology that leads it to turn what could’ve been a small case into a big one); and

4. It is a (recurring) category error to ignore the role the emergency docket plays both in any broader assessment of the depth of the Court’s divisions and in whether or not a particular case, on the merits, is a “big” one.

I hold no special claim to defining which cases do and don’t count as “big” ones (I give them yellow highlighting in my trusty Excel spreadsheet; SCOTUSblog—perhaps surprisingly—continues to list them in its traditional red font). But even if there are disagreements at the margins, I think (1) there does tend to be at least a loose consensus among the Court’s press corps and Court watchers as to which cases from any given term are the “big” ones; (2) that consensus forms well before the Court hands down its rulings in those cases; (3) those cases are a meaningfully relevant subset of the Court’s overall output; and (4) the most common divisions in those cases do reflect justices sorting along and across the ideological spectrum.

TL;DR: The justices don’t divide ideologically in all of the big cases, and they do divide ideologically in some small ones, but the broader claim still holds—and efforts to suggest otherwise are invariably refusing to take any/all of these points (or the full data set) seriously.

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But when it comes to the Supreme Court, my own view is that there’s a direct relationship between consistency and legitimacy—that the Court’s willingness to be consistent in how it applies legal principles across different cases is the strongest evidence the justices can provide that they are doing law, rather than politics. This is a central reason why one of my sharpest critiques of the Court’s behavior on the emergency docket is how, by not providing detailed explanations to accompany its rulings, it’s doing nothing to rationalize what otherwise appears to be inconsistent behavior based upon the partisan and/or ideological valence of the dispute.

Against that backdrop, today has provided two different flashpoints for the charge of inconsistency—and Justice Samuel Alito figures prominently in both of them.

Flashpoint #1: Justice Alito and Mifepristone, Round II

This morning, Justice Alito issued two “administrative stays” of the Fifth Circuit’s Friday night ruling that purported to suspend the ability of doctors across the country to prescribe mifepristone without an in-person visit. But although the Court’s sanewashers were quick to point to Alito’s interventions as proof of the Court’s neutrality,1 that elides two different problems with how he did it:

First, Justice Alito waited almost 48 hours to act—a period during which there was quite a lot of chaos across the country among doctors, pharmacists, and patients over whether and to what extent they were bound by Friday’s Fifth Circuit decision. 48 hours may not seem like a long time, but for comparison, in November, Alito issued an administrative stay in the Texas redistricting case just 68 minutes after Texas’s application for emergency relief was docketed by the Supreme Court (both of which happened after hours on a Friday night).

Second, and speaking of the Texas case, Alito’s administrative stays in the mifepristone case had something that his administrative stay in the Texas case didn’t—a deadline (next Monday at 5 p.m. ET). This follows a much broader pattern—in which Alito issues indefinite administrative stays in cases in which he appears to be sympathetic to the applicants, but imposes deadlines on the stays in cases in which he doesn’t. Before Monday, the last nine administrative stays in which Alito imposed deadlines were all cases in which at least one of the applicants had been the Biden administration. In contrast, Alito imposed no deadline in the Texas redistricting case; a potentially significant non-delegation case from 2024; and several other cases with … less … of an ideological valence.

To be sure, Alito isn’t the only justice to ever put a deadline on an administrative stay; Justices Gorsuch and Jackson have also each done it exactly once. And although the deadlines tend to create unnecessary tension and stress for both the parties and the Supreme Court’s press corps (who worry about what will happen if the deadline comes and goes with no action—which appeared to happen in the Texas SB4 immigration case in March 2024), they’re not especially significant beyond that. But it certainly seems like a petty way to treat parties differently based upon what you think of their claims.

Flashpoint #2: Justice Alito and the Judgment in Callais

The other flashpoint came Monday evening—when the Court agreed to put its ruling last week in Louisiana v. Callais into immediate effect, rather than waiting the ordinary 32-day period prescribed by its rules.

Justice Jackson wrote a highly unusual (but relatively temperate) dissent from the Court’s action—pointing out (1) that this is only the third time in recent history in which the Court has issued a judgment immediately over the losing party’s objection; and (2) the Court’s alacrity appears to be in service of efforts by Louisiana that smack of “a strong political undercurrent.”

Justice Jackson’s dissent provoked Justice Alito into writing an especially strident concurring opinion—in which, among other things, he describes Jackson’s arguments as “baseless and insulting” and claims that, unlike the Court’s action, it’s “the dissent’s rhetoric that lacks restraint.”

Some folks online have argued that the inconsistency here is how quickly the Court was willing to move in service to Louisiana Republicans—who want to be able to re-draw Louisiana’s congressional districts and have the new map apply to this cycle, even though a number of Louisianans have already voted in the primaries. Speed here, in contrast to the Court’s lack of expediency in, e.g., the Trump immunity case, for instance, seems revealing. (Likewise, some have suggested that the Court is again being inconsistent with regard to the so-called “Purcell principle,” by itself moving quickly in a way that will affect an ongoing election—something it regularly claims federal courts shouldn’t do).

But to me, the inconsistency here is far more specific—and far more galling. Alito defends the Court’s willingness to move quickly here on the ground that “[t]he dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.” This is the same argument Alito made in his concurring opinion in the Malliotakis case in March—that the Court just can’t abide the specter of voters using a map that might be unlawful.

Here’s the problem: In 2022, after two different district courts held that Alabama’s post-2020 Census congressional district map was unlawful, the Supreme Court stayed those rulings—allowing Alabama to use that map in the midterms (Justice Alito was in the majority in that order). But when the Court reached the merits the following year, it agreed with the district courts. Thus, the Court intervened in 2022 in order to allow Alabama to use maps that district courts had blocked in rulings the justices later affirmed. Nor was the Alabama case a one-off; as I’ve noted before, one can draw a straight line from the Court’s unsigned, unexplained February 2022 intervention in Alabama to at least five congressional districts that should have been redrawn before the 2022 midterms but weren’t. Republicans won all five of those seats—giving Republicans their exact margin of control in the House in the 118th Congress.

Perhaps one of the Court’s defenders will come up with some explanation for why the Court correctly intervened to allow Alabama to use an unlawful map in 2022, and yet it’s been justified in intervening to prevent New York and Louisiana from using unlawful maps in 2026. Suffice it to say, Justice Alito didn’t provide one. And given that this inconsistency has the remarkably coincidental effect of benefitting Republicans in all three contexts, it strikes me as a heck of a lot more than “foolish”

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

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Thursday’s bonus post about Wednesday’s ruling in Callais—and how it should inform conversations about Court reform—provoked quite a bit of flak from both sides of the political spectrum. To folks on the left, I am a “conservative collaborator” because I believe that Court expansion, whatever its short-term benefits, would touch off a race to the bottom that would serve only to undermine the ability of all federal courts to play their intended constitutional role in the long term. To folks on the right, I am once again trying to “delegitimize the Court” and undermine its independence by suggesting that Congress “menace it” (and also, I don’t “understand checks on SCOTUS powers”).

Besides the view that I’m a naif, along with a rather frustrating willingness to criticize my (fairly substantial) body of work without reading it or taking it seriously, what these viewpoints have in common is an obliviousness to the history of how (and how often) Congress regulated, leveraged, sometimes “menaced,” and otherwise nudged the Court for most of American history. Those levers didn’t necessarily produce “good” results. But they did produce a Court that was regularly looking over its shoulder. From John Marshall’s “political masterstroke” in Marbury to the needle the Court threaded during Reconstruction to Justice Owen Roberts’s 1937 “switch in time” to Justice Fortas’s 1969 resignation, the justices were always operating not just in Congress’s shadow (including, until 1935, literally in the Capitol), but in response to it.

As regular readers know, my own view is that a big part of what’s wrong with the current Court is that it has become completely un-accountable—both because Congress has stopped pulling those levers and because the internal pressure on the Court to moderate created by justices like Stewart, Powell, O’Connor, and Kennedy is no longer there. It’s only in the absence of both forces that Justice Alito can say, as he did in 2023, that “no provision of the Constitution gives [Congress] the power to regulate the Supreme Court—period.” Alito’s statement was and is literally incorrect, but it captures what has increasingly become the zeitgeist, and underscores why my own view is that restoring a culture of accountability is the best way to split the difference between preserving the Court’s independence and making it more worthy of the diffuse, public support that gives that independence real-world force.

I don’t expect everyone to agree with me. But the point of today’s “Long Read” is to at least provide the historical background—so that folks can’t just respond to my position by saying that the Court never has been accountable to Congress, and/or that it never should be. The actual history, at the very least, is decidedly to the contrary.

Much more on all of that below. But first, the news.

On the Docket

The Merits Docket

Callais was one of two rulings in argued cases the Court handed down on Wednesday. The other was Justice Gorsuch’s opinion for a unanimous Court in the First Choice case—about when organizations will have standing to challenge subpoenas for information about their donors.

It’s also worth flagging the Court’s “summary reversal” on Monday in the Texas redistricting case—a quietly important (and, to my understanding, relatively novel) disposition, which I covered in its own separate post last Monday night. Last week’s regular Order List also included another grant of certiorari for next term—in a complex but important dispute over the constitutional authority of the Department of Labor to adjudicate through administrative (rather than judicial) proceedings fines against employers for violating the terms of employment for those working under H-2A visas.

The Emergency Docket

There were four full-Court rulings denying emergency applications last Thursday—three refusing to block Texas’s execution of James Broadnax, and one refusing to block Florida’s execution of James Hitchcock. There were no public dissents from the four orders.

We also got a pair of high-profile emergency applications on Saturday asking the justices to immediately pause the Fifth Circuit’s Friday night ruling in the mifepristone case—which I covered in much more detail in this post. Both Danco Laboratories and GenBioPro have asked Justice Alito (and, through him, the Court) for both an immediate “administrative” stay and a stay pending their appeal of that ruling.

The Week Ahead

We expect a regular Order List at 9:30 ET today, but nothing else formal from the Court.

That said, I expect we’ll see at least some movement on the mifepristone applications (perhaps administrative stays from Justice Alito—just like his first interventions in the mifepristone cases three years ago) as early as today, along with a call for Louisiana to respond to the applications.

Speaking of Louisiana, there’s also a heated dispute between the parties in Callais over whether the Court should issue the mandate immediately—or wait the regular period (or longer). Louisiana wants the mandate to issue immediately, presumably to help its case for using new maps for the 2026 midterm cycle. The challengers argue, with a fair amount of persuasiveness, that the Court should leave the status quo intact—especially given that many Louisianans have already voted in primaries under the old maps. (The last time we saw this kind of dispute over the timing of the issuance of the Court’s mandate was in the SB8 Texas abortion case in October 2021.) I’m not sure what Justice Alito will do (as the author of the majority opinion, it’s ostensibly up to him—although he’ll presumably need the support of a majority of his colleagues). But I expect we’ll find out sooner, rather than later.

Otherwise, the justices aren’t currently set to re-take the bench until Thursday, May 14. It’s possible the Court will add a day for handing down more rulings in argued cases before then, but I rather doubt it.

The One First “Long Read”:
Congress and/vs. the Court

As noted above, the goal of today’s “Long Read” is to persuade you of nothing other than the fact that there are lots of examples, throughout history, of Congress using various of its powers as a means of nudging, leveraging, and even threatening the Court (and individual justices). There’s plenty to say about each of these examples, and I’m sure folks will debate (as they have long debated) their efficacy. What seems undeniable, though, at least once we account for this rich history, are two key takeaways: First, Congress used to engage in these behaviors all of the time; and second, for a host of reasons (many of which pre-date Congress’s more recent polarization), it doesn’t do so anymore—which, as I suggested on Thursday, is how we’ve ended up not just with this Court, but with rulings like Callais.

Lever #1: The Court’s Calendar

It may seem strange to start with something as anodyne as the Court’s calendar, but when the Court sits is entirely up to Congress. (The “First Monday in October” is codified at 28 U.S.C. § 2.) And in 1802, Congress used this power to effectively point a gun at the Court’s head—moving the justices’ annual sitting from December to February, and doing so in April.

The effect (and, unquestionably, the goal) of the measure was to prevent the Court from sitting at all in 1802—where one of the cases the justices would’ve considered involved a challenge to the constitutionality of Congress’s elimination of the standalone circuit judgeships the lame-duck Federalists had created (and then filled) in 1801. By cancelling the Court’s 1802 sitting, the (now-Jeffersonian-controlled) Congress forced the justices to resume circuit-riding (about which more below) before they had a chance to re-take the full bench in person, and it also made plain how tenuous the Court’s position vis-a-vis the 1802 legislation was.

As I’ve noted in a prior post, the 1802 example is the most aggressive instance of Congress using the calendar as a cudgel, but Congress regularly tweaked the timing of the Court’s sessions throughout the nineteenth century, before settling on the First Monday of October in 1916. That power has receded from memory today, but it was certainly used to dramatic effect, and not just for the justices’ convenience, in the early years of the Republic.

Lever #2: The Court’s … Court

Likewise, Congress for a long time not only controlled where the Court sat, but used that control as a lever unto itself. Congress didn’t provide any permanent accommodations for the Court until 1810—and those accommodations were, more than a little deliberately, in the basement of the Capitol. The justices moved “upstairs” to the Old Senate Chamber in 1860 (when the “new” Senate Chamber was completed), but they continued to sit in the Capitol—very much by design—until 1935.

Opposition to funding and construction of the current Supreme Court Building (a home for which Chief Justice Taft had aggressively lobbied since running for President in 1908) was usually pitched on exactly these terms—that giving the Court its own physical plant would give it too much power and separation from the democratically elected branches of government. Justice Brandeis, who would never use his office in the new building, objected that what he called the “Marble Palace” would turn the justices into “‘the nine black beetles of the Temple of Karnak’ and would cause them to have an inflated vision of themselves.” As Paul Freund would later put it, Brandeis “opposed the new Supreme Court building on the ground that it might tend to cause the justices to lose whatever sense of humility they had theretofore possessed.”

Indeed.

Lever #3: Circuit-Riding

Humility was also one of the two central arguments Congress repeatedly relied upon to justify “circuit-riding,” through which it required the justices to spend much of their time out in the country, sitting as circuit judges at least once a year in each district within their particular geographic slice of the country.1

To be sure, having the justices spend much of their time out among the people was not just a punishment; it also reflected the idea that the justices were to be a kind of “republican schoolmaster,” as one scholar has put it—instructing the public not only on specific legal concepts but on their broader civic responsibilities. But a lot of it was about keeping the Court under Congress’s thumb. As then-Representative James Buchanan (yeah, that Buchanan) put it in an 1826 debate, “[i]f the Supreme Court should ever become a political tribunal, it will not be until the Judges shall be settled in Washington, far removed from the People, and within the immediate influence of the power and patronage of the Executive.”

Circuit-riding was thus a way of keeping the justices on a geographically long but metaphorically short leash. Nothing in the Constitution required Supreme Court justices’ jobs to be especially cushy; by forcing the justices to spend so much of their time on the road (at a time when travel and lodging were not exactly easy or comfortable), Congress preserved for itself a rather large separation-of-powers stick. It was only in the late 1800s, when the Court’s caseload had become too cumbersome to have the justices holding two different jobs, that Congress finally agreed to rein in (and ultimately eliminate) the practice.

Lever #4: The Court’s Docket

Congress’s biggest stick, or at least the one it relied upon the most, was its control of the Court’s docket. I’ve written about this in detail before, but Congress controlled every single feature of the Court’s caseload all the way until 1891. For its first century-plus, there was no “certiorari” jurisdiction; in cases in which the Court had jurisdiction, its review was mandatory. The justices eventually came up with a conceit to help get cases to the Court—but they had no way of keeping cases away.

Congress gradually relaxed that control—introducing certiorari as a limited experiment in 1891, then expanding it a bit in 1914 and 1916 before dramatically altering the Court’s docket in the 1925 “Judges’ Bill,” so named because the justices were intimately involved in writing and lobbying for it. But it wasn’t until 1988 that Congress all-but surrendered its docket control—giving the Court discretion over everything except appeals from three-judge district courts (which tends to account for an average of one merits case per term).

I won’t rehash here the long debates over (or earlier writings about) the merits and demerits of certiorari. The relevant point is that everyone understood each of these statutory reforms as transferring power from Congress to the Court—power that no one questioned Congress had the constitutional authority to both exercise directly and to delegate to the justices. Put another way, whatever the policy wisdom of certiorari, it’s another powerful example of how Congress used to use its control over the Court as a lever—and has stopped doing so. And the consequences have been … striking.

Lever #5: The Court’s Budget

A common pushback I get whenever I talk about Congress is that “this Congress will never pass any legislation about the Supreme Court.” To the contrary, Congress is guaranteed to pass at least one statute about the Court every year—its budget. Although Congress can’t diminish the justices’ salaries (more on that below), the Constitution says nothing at all about the rest of the Court’s accounts. And these days, the justices’ salaries tend to comprise only about 2% of the Court’s overall budget. That’s a lot of discretionary appropriations that Congress is choosing to provide.

I’ve written before about the different ways in which Congress historically used the budget as a lever. But perhaps the most meaningful recent example is a March 2001 House budget subcommittee hearing, where Rep. Jose Serrano (D-N.Y.) grilled Justice Kennedy about the Court’s ruling in Bush v. Gore (there’s video). The idea that the justices can and should be made to publicly defend some of their more controversial rulings in order to receive their annual fiscal allotment may seem entirely foreign in 2026; it wasn’t as recently as a quarter-century ago.

Lever #6: The Justices’ Salaries and Pensions

To similar effect, even though Congress can’t diminish the justices’ salaries, it regularly used them (and the justices’ pensions) as significant levers. A prior post goes through the details. On the salary front, in 1964, when Congress gave just about every federal officer and employee a long-overdue pay raise, the nine recipients who got the least were the justices—reflecting Congress’s … pique … with the Court’s trilogy of major redistricting rulings. And on pensions, until 1937, Congress would sometimes use justice-specific pension statutes (like the one pictured above) to nudge justices off the Court.

Congress largely surrendered the latter power in 1937, when it created a permanent retirement mechanism for justices. But, again, here’s an example of how Congress used its unquestioned powers to check the Court both directly and indirectly.

Lever #7: The Court’s Ethics

It is certainly true that Congress has never created some kind of formal ethics enforcement mechanism for the justices (even though it has enacted statutes imposing limits on the justices’ behavior). But it didn’t need to. I’ve told the story before of why Justice Abe Fortas resigned from the Supreme Court on May 14, 1969 (which remains the last day on which a majority of the justices had been appointed by Democratic presidents). But in a nutshell, in the midst of a relatively modest scandal over Fortas’s relationship with a sketchy financier (which is not to say Fortas had clean hands), Chief Justice Warren went to Fortas and told him he had to resign for the good of the Court—because, if he didn’t, Congress would come after the Court (including, Warren feared, Justice Douglas). It was the specter of congressional investigations (and potential impeachment proceedings) that forced Fortas’s hand. Suffice it to say, I don’t see a similar conversation happening today. That’s not just a reflection on the justices; it’s a reflection on Congress.

Lever #8: The Final Say on Statutes

Finally, perhaps the most significant substantive lever Congress has pulled is its unquestioned ability to overrule any Supreme Court decision short of one that is based upon an interpretation of the Constitution. In other words, Congress can reverse (and regularly has reversed) the Court’s statutory interpretations—a power that also unquestionably influenced how the Court approached those interpretations in the first place.

As I noted in last Thursday’s bonus post, Matthew Christiansen and Professor Bill Eskridge published an exhaustive study in 2014 that identified more than 100 statutes Congress passed between 1980 and 2000 at least parts of which overturned Supreme Court statutory interpretations with which it disagreed. That number has dwindled into the single-digits in recent years—and virtually no high-profile cases. (The most recent example I can think of is the Ledbetter case from 2007, which the 111th Congress overruled in its second statute in 2009.) A Congress that was still asserting its control over statutes would presumably have responded quickly, for instance, to Shelby County—and its demand for an updated “coverage formula” for the Voting Rights Act’s preclearance regime. But this Congress? Crickets.

I don’t mean to overstate this point; the volume of examples in the Christiansen/Eskridge study are a testament to the fact that even dynamic interbranch dialogue didn’t prevent the Court from getting a bunch of statutory interpretation questions “wrong.” But it’s worth asking what the “major questions doctrine,” or the overruling of Chevron, or any number of other moves the Court has made in the last decade would’ve looked like in a world in which the Court was genuinely convinced that Congress would more directly and immediately respond to its rulings.

Jurisdiction-Stripping and the Court’s Size

Of course, two of the proposals being pushed by the most aggressive Court-reformers—jurisdiction-stripping and Court expansion—could also be described as “levers” Congress has pulled at prior moments in the Court’s history. But I’m not persuaded that either of them are in the same category as the ones summarized above.

Taking jurisdiction-stripping first, Congress has never actually gotten away with completely stripping the Supreme Court’s ability to interpret a specific constitutional provision. As I’ve explained in detail in prior posts, there’s a lot Congress can do to structure and limit the Supreme Court’s jurisdiction, but it’s at the exact moment a jurisdiction-stripping statute becomes truly effective that, in my view, it crosses the constitutional line. And even for those who don’t agree, the only real example of jurisdiction-stripping succeeding was in the Reconstruction cases—where, lest we forget, the Court was ready to reach the merits in Ex parte Yerger before the Grant administration mooted the dispute by releasing Yerger from custody.

It’s also true, as I’ve suggested before, that Congress has used its control over the Court’s size as a lever—just never in the way that so many folks on the left are calling for today. The size of the Court changed seven times between 1789 and 1869—invariably for political (if not for partisan) reasons. But three of those changes (1807, 1837, and 1863) were simply to expand the Court to match the expanding number of circuits at a moment when the move was not perceived as an effort to shift the Court’s ideological center of gravity. Two of those changes were efforts to deny opportunities to presidents (Jefferson and Andrew Johnson) to fill seats; and two were to undo those last two.

Expanding the Court for the purpose of shifting its ideological control is a big part of what made FDR’s 1937 proposal so controversial—not just because it was unprecedented, but because of what it would mean if it succeeded, i.e., that, whenever any party had a trifecta in Congress and the White House, it could expand the Court to cement its ideological alignment with the current administration. The problem isn’t that this wouldn’t work in the short-term; it’s that it would necessarily set off a race to the bottom in the long term, one in which the Court loses any claim to being above the partisan politics of the moment. That’s a big part of why so many Democrats were opposed to FDR’s plan in 1937. We’ll never know if that opposition would have been sufficient if Justice Owen Roberts hadn’t switched his vote and/or if Justice Van Devanter hadn’t announced his retirement shortly thereafter. But I continue to think that opposition to enacting FDR’s proposal was normatively correct.

I realize that there are plenty of folks who think we’re already there with the current Court. But my goal is to see if it is possible to stay out of the abyss—not to plunge headlong into it. To be sure, the answer may be no. But it seems worth finding out first.

* * *

One last point: A common rejoinder to suggestions that Congress attempt to pull any of these levers again is that the Court could all of a sudden decide that they’re unconstitutional, notwithstanding the historical precedents marshaled above.

That is certainly a concern. But there are two final points that hopefully tie these threads together. First, the same thing could be said about Court expansion and jurisdiction-stripping (and, in the latter case, the Court might well be correct). Second, and in any event, if Congress starts pulling some of these levers and the Court tries to cut them off, it seems that the most likely outcome would be for Congress to become only more aggressive in seeking to rein in the Court—not less. The Court has the power to win one or two fights with Congress, but it can’t win a war—nor should it be able to.

Back to one of my favorite quotes (again, from Paul Freund): We should aspire to a world in which the justices “are not, [or] at any rate should not be, influenced by the weather of the day, but they are necessarily influenced by the climate of the age.” A lot of folks may think that can happen with the right justices. My own view is that, in the long term, that can happen only if we get to a point in which it doesn’t matter whether we have the “right” justices, because any justice is being regularly pushed to look over their shoulder—and across First Street.

SCOTUS Trivia: The Second-Longest-Serving Justice

For those who care about such things, it’s a big week for Justice Thomas’s march up the Court’s longevity rankings. Six weeks ago, Thomas passed John Marshall to become the Court’s fourth-longest-serving justice. Today, Thomas’s 12,612th day on the Court (34 years, 193 days), he passes Justice John Paul Stevens for sole possession of third place. And Thursday, he’ll move past Justice Stephen Field into second place—with only Justice William O. Douglas, whose tenure lasted 13,358 days, having served on the Court for longer.2

As I’ve noted before, Thomas is set to catch Justice Douglas in May 2028. For lots of reasons, it seems unlikely that he’ll retire before that happens.

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

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Back then, the Supreme Court first stayed Kacsmaryk’s ruling itself, and then held on plenary review—unanimously—that the plaintiffs in that case (the “Alliance for Hippocratic Medicine”) had lacked standing.

As Yogi Berra said, it’s déjà vu all over again. Friday afternoon, a three-judge Fifth Circuit panel (Judge Duncan, joined by Judges Southwick & Engelhardt) in Louisiana v. FDA issued a “stay” under the Administrative Procedure Act of the 2021 and 2023 FDA actions that had, between them, first practically and then formally suspended the in-person dispensation requirement. In English, the Fifth Circuit effectively re-imposed a requirement that doctors prescribe Mifepristone only after having examined patients in person. And it did so, overtly, on a nationwide basis. Unless I’m missing something, that ruling—unlike Kacsmaryk’s 2023 ruling—goes into immediate effect.

So long as it remains in effect, Friday’s ruling will make Mifepristone—one of two drugs used for medication abortions, which account for more than 60% of all abortions nationwide—much harder to obtain across the country, and not just in Texas, Louisiana, and Mississippi. (Per the ACLU, “more than 1 in 4 people in the U.S. who have an abortion do so using telemedicine. Without this method of care delivery, patients using Mifepristone would be forced to travel, sometimes hundreds of miles, to a health center just to pick up a pill, a requirement that leading medical authorities agree has no safety benefit.”) It doesn’t just block the dispensation of Mifepristone through the mail; it also blocks patients from being prescribed Mifepristone through telehealth.

The panel’s ruling thumbs its nose at a quarter-century of public health data (which shows that Mifepristone is significantly safer than both Penicillin and Viagra, among other drugs no judge would issue this kind of relief against). It rests on a remarkably stilted view of the process the FDA went through before relaxing the in-person dispensation requirement. For standing, it rests on the remarkably dubious claim that Louisiana is injured because allowing Mifepristone to be dispensed remotely directly causes unlawful abortions in Louisiana—and therefore harms Louisiana, as such. (There’s also an argument about how Louisiana’s Medicaid costs will go up—which not only rests on the same problematic claims about Mifepristone being unsafe but also assumes there’s something more unsafe about Mifepristone that’s prescribed remotely versus Mifepristone that’s prescribed in-person outside of Louisiana and then brought into the state.)

And, most gallingly, the panel’s ruling pays no attention to the other side of the equities—the harm not just to Louisianans, but to people in states in which abortions are generally legal from an order reimposing an in-person dispensation requirement. (I seem to recall some discussion of whether the federal government suffers irreparable harm whenever its policies are blocked. This seems like yet another example of courts being … inconsistent … on that front.)

All of this is to say, the Fifth Circuit is Fifth Circuit-ing again. And although I don’t expect the Trump administration (the nominal defendant in this case) to seek emergency relief from the full court of appeals or the Supreme Court, the two companies that manufacture and distribute mifepristone in the United States (Danco Laboratories and GenBioPro) intervened as defendants in the district court, and will surely pursue such relief at the earliest opportunity. (Given who was on this panel, emergency relief from the full Fifth Circuit may be an uphill battle—and, almost as importantly, might take longer than going right to the Supreme Court.)

This leads to two last points, at least for now:

First, for all of the complaints about nationwide relief both before and after last year’s ruling in the CASA case, here’s the Fifth Circuit not only shrugging off those concerns, but leaning into them—by purporting to rely on the Administrative Procedure Act, rather than the district court’s equitable powers. To be sure, Judge Duncan is correct that CASA specifically distinguished APA relief. But that just leaves nationwide relief available; it does nothing to explain why nationwide relief is appropriate in this case—an omission that is compounded by the court’s refusal to account for the impact of its ruling in its (nominal) balancing of the equities.

Second, here’s yet another revealing example of why folks who are critical of much of the Supreme Court’s behavior on the emergency docket are not actually critical of the emergency docket itself. Despite how criticisms of the emergency docket are often characterized (and caricatured), no one seriously disputes that the Supreme Court should have the power to pause these kinds of lower-court rulings on an emergency basis—that is, a ruling that will have massive and immediate nationwide effects on a huge number of private citizens in a context in which it isn’t remotely clear that the ruling is the right result. The issue isn’t whether the Court should have the power to intervene; it’s how the Court does so.

Indeed, part of what made today’s ruling possible is that the Court’s April 2023 stay said nothing at all—and, thus, expressed no view on the merits of the challenge to the suspension of the in-person dispensation requirement. It’s possible, of course, that even an explanation in April 2023 would’ve rested only on the Alliance for Hippocratic Medicine’s lack of standing—and so we’d be right back where we are now. But last time, the unexplained nature of the Court’s stay left room for the Fifth Circuit to hold that there was standing even after the justices’ first intervention (which was a big part of why I was, and remain, critical of the way the Court granted that earlier stay—if not the result the Court reached). Maybe this time around, the Court will be impelled to say more than nothing—so that the message doesn’t get lost again.

Either way, it stands to reason that this emergency application will be making its way to the Supreme Court sooner, rather than later.

We’ll be back (no later than) Monday with our regular coverage of the Supreme Court. In the interim, if you’re not already a subscriber, I hope you’ll consider becoming one—and becoming a paid subscriber if your circumstances allow:

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