157. A Busy (and Glitchy) Week

The Supreme Court capped off a busy week with two major late-Friday-afternoon rulings on emergency applications—and a harmless but nevertheless alarming glitch prematurely releasing today's orders.

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In thinking about the primary topic for today’s newsletter, I kept coming back to just how much news the Court made last week (and how much Court-related news there was, as well). Thus, rather than divide today’s issue into our normal categories, I decided to break it down into summaries and brief analyses of the five biggest stories (or buckets of stories) from the week—each of which, in calmer times, would merit an entire issue unto itself, and which are presented below in roughly chronological order of when they happened. In all, it was … quite a week. And although there’s no one theme that ties all five sets of stories together, the volume—and the sense of a Court that is stretched past its capacity—is perhaps the real takeaway.

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1. AR-15s: Soon, But Not Now

Although last Monday’s regular Order List included grants of certiorari in four new cases, the biggest headline was the Court’s refusal to take up a Second Amendment challenge to Maryland’s ban on AR-15s (the semi-automatic rifle that has figured prominently in so many mass shootings). That ruling came over dissents from Justices Thomas (who wrote separately), Alito, and Gorsuch. But the real story was the 2.5-page “statement” from Justice Kavanaugh, who expressed strong support for the idea that AR-15s “are protected by the Second Amendment,” and for the Court to take up whether bans on their sale and possession are therefore unconstitutional “in the next Term or two.”

It’s strange, of course, for a justice to write an opinion promising that an issue will be decided soon without providing a clear reason for why not now. Over at “Divided Argument,” Will Baude suggests that the real issue here is that Maryland’s ban implicates two different Second Amendment questions—and that, although there are likely five votes to answer the first question (are AR-15s “arms” protected by the Second Amendment) differently from the Fourth Circuit, there may not be a majority for any one answer to the second question (whether bans like Maryland’s are permissible regulations of otherwise protected “arms”). Of course, if lower courts are all getting the first question wrong, they won’t reach the second question—which would deny Justice Kavanaugh the “percolation” he’s apparently seeking. Will often does a better job of explaining certain justices’ behavior than the justices themselves; this seems to be another example.¹

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2. Thursday’s Six (Mostly Unanimous) Merits Rulings

Thursday brought with it the first “heavy” opinion day of the Court’s October 2024 Term—with the justices handing down six rulings covering seven of the cases argued earlier in the session (two of the cases had been consolidated). Other than the “DIG” (dismissing certiorari as improvidently granted) in Laboratory Corp. of America v. Davis, from which Justice Kavanaugh dissented, the five rulings with signed opinions were all effectively unanimous. And the three that generated the most headlines involved rulings seemingly in favor of more conservative litigants and/or outcomes that were each penned by one of the Democratic appointees:

1. In Ames v. Ohio Department of Youth Services, Justice Jackson wrote for the Court in holding that the Sixth Circuit had erred by subjecting a straight, female plaintiff to a higher standard for making out a Title VII workplace discrimination claim based upon sexual orientation—and that Title VII claims don’t vary based on whether the plaintiff is a member of a majority or a minority group.

2. In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, Justice Kagan wrote for the Court in throwing out a lawsuit brought by the Mexican government accusing an array of U.S. gun manufacturers of knowingly supplying firearms to Mexican drug cartels and thereby aiding and abetting their unlawful conduct in Mexico.

3. And in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Comm’n, Justice Sotomayor wrote for the Court in holding that the Wisconsin Supreme Court’s application of a Wisconsin tax exemption violated the First Amendment insofar as it imposed a denominational preference (by differentiating between religions based on theological lines) without a compelling governmental interest for doing so.

There’s a lot to say about each of these rulings on their own. Taking them together, it seems like there are two larger points to underscore: First, these each seem like examples of a conscious effort on the Chief Justice’s part (since he would have been the one to assign the majority opinions) to preserve unanimity in cases implicating our political and social divides. Yes, the justices may have agreed on the judgments in all three of these cases, but by assigning the majority opinions to Sotomayor, Kagan, and Jackson, respectively, the Chief Justice was presumably attempting to have the cases decided on somewhat narrower grounds than they might have been had, for example, Justices Thomas or Alito written them.

Second, the fact that the Democratic appointees were willing to support those judgments (and, indeed, pen the rationales underlying them) reflects the extent to which at least some of the battles seemingly at the heart of these cases had already been fought and lost—like the battle over whether antisubordination or anticlassification is the defining principle of modern federal antidiscrimination law. There’s a rich academic debate about the virtues (and vices) of perpetual dissents. But for better or worse, the three Democratic appointees seem to have accepted the results of these jurisprudential battles—and are thus writing majority opinions in cases in which, a generation ago, there might not have been five votes for the result in the first place. There’s obviously a story to tell about how, if one is sympathetic to the side that lost those wars, rulings in these cases that are narrow and unanimous are better than ones that are divisive and move the doctrine even further. But there are costs to that approach, as well.

What seems like a woefully premature takeaway, though, is that Thursday’s rulings are evidence of a Court more unified than it’s often portrayed by many of its critics (including me). I’ve written before about the perils of relying upon the Court’s unanimous rulings to prove any broader thesis about the justices. In this case, we needed to wait only about 30 hours to see just how divided the justices are in high-profile cases that they didn’t choose to hear (see #4, below).

3. The Abrego Garcia Denouement

Friday morning brought with it the remarkable news that the federal government had not only indicted Kilmar Abrego Garcia in a federal district court in Nashville, Tennessee, but that it had already brought him back from El Salvador—notwithstanding the Trump administration’s repeated assertions, both in and out of court, that it could not and would not do so. Not long after that story broke, we also learned that the former head of the criminal division in the Nashville U.S. Attorney’s Office had resigned in protest over the government’s decision to move forward with the prosecution (which, in normal times, would be a huge and scandalous story about political interference in a pending criminal case, but in 2025, mostly got tacked onto stories about the indictment itself).

What should be painfully obvious to anyone who’s paying attention is that this is a transparent attempt on the Trump administration’s part to save face. Maybe Abrego Garcia will be convicted on the (in my view, somewhat dubious) charges in Tennessee; maybe he won’t. But the whole point of the public outcry against his treatment was not that he’s an angel; it’s that, like anyone else, he was entitled to due process before he was removed from the United States. Whatever happens next in the criminal case against Abrego Garcia, or in the continuing effort on the part of his habeas counsel to obtain sanctions against the government for its behavior in the case in front of Judge Xinis in Maryland, is almost beside the point. The fact that the Trump administration felt impelled, for whatever reason, to take this step ought to be seen for what it is—not a vindication of due process (after all, Abrego Garcia still spent 2.5 months in El Salvador), but a vindication of those who argued so loudly and repeatedly that the due process he was denied matters. On that point, and with the Supreme Court’s help, the government deservedly lost—and it lost badly.

4. The Two (Very Un-Unanimous) DOGE Rulings

Friday afternoon brought with it back-to-back rulings from the justices in the two DOGE-related emergency applications from the Trump administration. First, around 4:20 ET, the Court restored DOGE’s access to Social Security data—granting the Trump administration’s application for a stay of a district court injunction, albeit with no real explanation as to why. All the majority did was briefly summarize the dispute, summarize the stay factors, and assert that “After review, we determine that the application of these factors in this case warrants granting the requested stay. We conclude that, under the present circumstances, SSA may proceed to afford members of the SSA DOGE Team access to the agency records in question in order for those members to do their work.” (Narrator: That’s … not analysis.)

The three Democratic appointees publicly dissented, with Justice Sotomayor joining Justice Jackson’s 10-page written opinion. Once again, Justice Jackson was sharply critical of the Court granting emergency relief to the Trump administration in a context in which it was unclear, at best, how the equities favored such an intervention. One passage especially stood out:

In my view, granting the Government a stay on this plainly deficient showing of harm is also systemically corrosive. We have told everyone that it is “critical” that an applicant justify its request for a stay from this Court by showing that it “will be irreparably injured absent a stay.” So the idea that the Government actually need not satisfy the irreparable-harm burdens that other stay applicants have, nor wait for the courts to decide the merits of challenges to its allegedly unlawful conduct—as other litigants must—is not costless.

To accept this line of argument sends a troubling message: that this Court will allow departures from our stated legal standards and the basic norms of our judicial system (such as respect for lower court rulings and equal justice under law) for certain litigants. It says, in essence, that although other stay applicants must point to more than the annoyance of compliance with lower court orders they don’t like, the Government can approach the courtroom bar with nothing more than that and obtain relief from this Court nevertheless. It is particularly startling to think that grants of relief in these circumstances might be (unintentionally) conveying not only preferential treatment for the Government but also a willingness to undercut both our lower court colleagues’ well-reasoned interim judgments and the well-established constraints of law that they are in the process of enforcing.

Needless to say, I agree with every word of this. The problem is that the ship has long-since sailed on the Court taking the balance of the equities seriously, at least when the federal government is a party (and especially during Republican administrations). That means these emergency applications are all effectively reducing to premature assessments of whether the plaintiffs are likely to prevail—and nothing more.

That might also help to explain the second ruling the Court handed down immediately after the decision about DOGE access to Social Security data—in which it granted a separate request by the Trump administration to block discovery in a FOIA case into the structure of DOGE (and the identity of its leaders). This time, the Court provided at least a modicum of explanation—suggesting that the district court had failed to appropriately tailor the discovery in light of separation-of-powers concerns, but leaving the door open for the lower courts to fix the deficiencies on remand. The more modest nature of the second DOGE-related ruling may help to explain why, even though Justices Sotomayor, Kagan, and Jackson again publicly dissented, they did not write separately (or maybe there’s just too much going on elsewhere).

The larger point, and the one that is by-now undeniable, is how much the Court’s 6-3 ideological split—which has yet to surface, at least respecting the judgment, in a single case on the merits docket—is dominating its handling of the Trump-related emergency applications. Fridays pair of rulings were the ninth and tenth by the full Court on Justice Department applications since April 4. In all ten of them, a majority granted at least partial relief to the Trump administration. The two DOGE rulings were the seventh and eighth of those ten in which all three Democratic appointees publicly dissented; two dissented in the ninth; and one dissented in the tenth. I’ve been arguing for years that the emergency docket is, in many respects (and for many reasons), a more honest barometer of the Court’s internal divisions. Friday drove that home in spades.

5. The Friday Afternoon Orders Glitch

As the Court was handing down the two DOGE rulings on Friday afternoon, something else strange was happening: the Court accidentally sent out e-mail notifications to everyone signed up to receive them in cases in which an order was set to be issued as part of today’s regular Order List. In other words, the Court had pre-loaded the results of Thursday’s Conference into its e-mail notification system, and some glitch caused the e-mails to go out late-afternoon on Friday, rather than sometime after the Order List would otherwise have been publicly posted at 9:30 ET today.

Apparently in response to folks pointing out that this had happened, the Court decided to publicly release the full Order List a little after 6 p.m. on Friday (which seems like the least-worst alternative at that point). The Court issued a statement accompanying the release—noting that “Due to an apparent software malfunction, email notifications concerning action by the Court scheduled to be included on the order list set for release on Monday, June 9, at 9:30 a.m., were sent out this afternoon. As a result, the Court is issuing that order list now.”

That list has a fair amount of newsy stuff on it (including four more grants of certiorari in three cases—one of which is a significant dispute over the relationship between IQ scores and Eighth Amendment objections to death sentences based upon intellectual disability).

But the real story here is that, for the second time in less than a year, the Court had a massive glitch that led to the premature release of decisions (last time around, it was the premature release of the Court’s ruling in the Idaho/EMTALA emergency abortion case). I am a huge fan of the Court’s (relatively new) e-mail notification system—which was and is a remarkably positive step in making it easier for anyone who wants to keep tabs on individual cases before the justices. And I hope what happened Friday doesn’t give the Court any second thoughts about the system. But if one were looking for signs of an institution that is under pressure—and that may be stretched beyond its capacity—these kinds of errors would obviously be among them. Accidentally releasing a flurry of cert. denials (and a handful of grants) roughly 65 hours early is, at least in my view, pretty darn harmless. But the next glitch may not be. And the broader concerns about a Court that is being asked (and is agreeing) to do so much so quickly aren’t going to helped by episodes like this one.

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It’s unlikely we’ll get quite as much news from the Court this week. Among other things, there’s no Order List coming at 9:30 this morning (since it already dropped on Friday!). We expect another bunch of rulings in argued cases starting at 10 ET on Thursday. And there’s at least one pending emergency application from the Trump administration (in the D.V.D. / third-country removals case) that’s ripe for a ruling this week (the two other pending Trump administration applications won’t be fully briefed until late in the week). But what is, by tradition, the Court’s busiest month of the year has already gotten off to quite a start.

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1. The Court also denied certiorari in Wheeler v. United States—our challenge to the constitutionality of the “short-martial,” i.e., involuntary military bench trials for certain serious offenses. Nuts.