160. The Vices of Selectively Opening Courthouse Doors

There's a direct connection between the justices' willingness to open courthouse doors to certain litigants and a merits docket with so many culture-war disputes from specific parts of the country.

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Obviously, President Trump’s bombing of three suspected nuclear sites in Iran on Saturday ought to take precedence over just about everything else. But I’m not sure, for now, that there’s much to add to last Thursday’s bonus post—which focused on the well-documented drift in the constitutional allocation of war powers from Congress to the President, and the Supreme Court’s own role in making it so difficult, both directly and indirectly, to rein in unlawful uses of military force without congressional authorization (which, whatever its policy merits, I believe this clearly was). And insofar as this is at least ostensibly a Supreme Court-focused newsletter, it also seemed worth saying more than just a passing word about the 11(!) rulings in argued cases that the Court handed down last week—what will likely end up as just under 20% of the Court’s total output for the term.

Although I’ll say a bit about each of them below, what strikes me about many of last week’s decisions taken together is their collective approach to who’s allowed to bring lawsuits—and where. Indeed, by my count, six of the 11 rulings were directly about that issue; and two of the other five implicated it at least indirectly. And a common theme cutting across most of those rulings, especially the ones we got on Friday, is what might most charitably be described as a somewhat … selective … approach to the answers. Justice Jackson even suggested that one of the majority opinions in these cases “invites questions about inconsistent decisionmaking and whether this Court is holding business litigants to the same standards as everyone else.”

In my view, that charge could be leveled against a bunch of the rulings the Court handed down last week (and over a longer time horizon)—where there might be plausible arguments for opening the relevant courthouse doors in the abstract, but where the contrast between the justices’ willingness to do so in these contexts and not in others makes it much harder to believe that these rulings are about strict adherence to neutral legal principles. And although inconsistency is hardly a new charge to level at the justices, it seems worth emphasizing its costs—not just the reputational harms identified by Justice Jackson, but the reality that the Court continues to make it easier for particular litigants to bring particular lawsuits in particular parts of the country, even when it ends up rejecting those lawsuits on the merits once they reach the Court.

Put another way, with more than 20% of the Court’s docket this term made up of cases from the Fifth Circuit alone, rulings like the ones we got last week will lead only to more efforts by litigants to steer their cases into the most ideologically friendly courts in the country—which will directly lead not just to more outlier rulings from lower courts that the justices will have to expend capital to review, but also the very real possibility of more emergency applications along the way. If the justices are trying to figure out why so much of their non-Trump docket is dominated by these kinds of cases, they might need to consider the mounting possibility that this particular call is coming from inside the house.

I’ll try to unpack this argument in more detail as we walk through the news (which I’m combining with the “Long Read” this week).

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On the Docket

Last week started with a relatively modest Order List. The Court added two cases to the docket for next term (including an important dispute over when companies’ First Amendment objections to state investigative demands can be litigated prior to compliance). But there were no separate writings. We also didn’t get any rulings from the full Court on any emergency applications—including the (now long-ripe) applications from the Trump administration in the third-country removal and reductions-in-force (RIFs) cases. Indeed, the only miscellaneous order from the Court last week came on Friday—when the justices declined a request from private parties to expedite consideration of a petition for certiorari before judgment (an attempt to leapfrog the court of appeals) in one of the lawsuits challenging President Trump’s tariffs. That petition itself is still pending, but the “normal” briefing schedule will now apply to it—under which the Court won’t decide whether or not to take the case (at least, before the D.C. Circuit hears it) until at least October.

On Wednesday, the Court handed down five rulings in argued cases (covered here in the order in which they came down):

1. In NRC v. Texas, Justice Kavanaugh vacated a Fifth Circuit ruling that had held (based at least in part on a highly dubious invocation of the “major questions doctrine”) that the Nuclear Regulatory Commission lacks the power to license the storage of spent nuclear fuel at a private off-site facility. Rather than holding that the Fifth Circuit was wrong on the merits (although Kavanaugh’s opinion offers significant analysis to that end), the majority opinion held only that Texas and a private party could not collaterally attack an NRC-granted license in federal court because they had not been parties to the underlying licensing proceeding. Justice Gorsuch wrote a dissenting opinion, which was joined in full by Justices Thomas and Alito.

2. In EPA v. Calumet Shreveport Refining and Oklahoma v. EPA, the Court clarified exactly which challenges to EPA regulations have to be brought in the D.C. Circuit, and which ones can also be brought in the relevant “regional” court of appeals. Justice Thomas wrote for a 7-2 majority in Calumet Shreveport Refining (over a dissent by Justice Gorsuch, joined by Chief Justice Roberts). Thomas also wrote for the Court in Oklahoma, with Gorsuch (again joined by Roberts) concurring in the judgment.

3. In United States v. Skrmetti, Chief Justice Roberts wrote for what was effectively a 6-3 majority (with the three Democratic appointees dissenting) in upholding Tennessee’s ban on gender-affirming medical care for transgender minors. There’s quite a lot to say about what is likely going to be the most significant merits-docket ruling of the term, and I’m planning to cover it in detail in a future issue. For now, the key is that Chief Justice Roberts’s majority opinion held that Tennessee’s law does not classify on the basis of sex or transgender status—and so is not subject to “heightened” scrutiny for purposes of the Fourteenth Amendment’s Equal Protection Clause. I have some serious qualms with some key points in Roberts’s analysis (on which I find Justice Sotomayor’s dissent far more persuasive), but this is a narrower holding than what Justice Barrett (in a concurrence joined by Justice Thomas) and Justice Alito (in an opinion concurring in the judgment) argued for—that transgender status is not a “suspect” classification for Fourteenth Amendment purposes at all. In other words, the majority relied upon a (to me, unconvincing) conclusion that Tennessee’s law does not classify based upon transgender status to avoid an even more significant holding that it would be constitutional even if it did.

4. In Perttu v. Richards, Chief Justice Roberts wrote for a 5-4 majority (joined by Justice Gorsuch and the three Democratic appointees) in holding that, when prisoners bring a claim under the Prison Litigation Reform Act to which they otherwise have a Seventh Amendment right to a jury trial, they’re also entitled to have the jury determine factual questions related to whether they had to “exhaust” administrative processes when the exhaustion question is “intertwined” with the merits of their claim.

Then, on Friday, the Court handed down six more decisions in argued cases—in which venue-related issues (and dissents) were even more at the forefront:

1. In FDA v. R.J. Reynolds Vapor Co., Justice Barrett wrote for a 7-2 majority in holding that retailers of tobacco products, and not just manufacturers, can challenge the FDA’s denial of applications to retail new tobacco products—even though retailers play no role in the application process. Justice Jackson’s dissent, which was joined by Justice Sotomayor, was quite direct about the implications of such a holding—that tobacco manufacturers, which could already challenge FDA actions either in the D.C. Circuit or in the circuit in which they are located, could now bring claims in any circuit in the country simply by finding a single retailer in that circuit that’s willing to join them. Thus, after other manufacturers had lost on the merits in challenges brought in both the D.C. Circuit and Fourth Circuit (where R.J. Reynolds is headquartered), R.J. Reynolds teamed up with a local retailer to file in the Fifth Circuit, obviously hoping for a friendlier outcome—which it got thanks to an en banc Fifth Circuit ruling in a related case, one the Supreme Court itself reversed earlier this term. Justice Jackson argues, persuasively in my view, that this kind of manipulation is exactly what Congress sought to avoid in the relevant venue statute. I’ll just add that, in a world in which the Court adopted Justice Jackson’s view, that earlier reversal of the Fifth Circuit would, presumably, have never even gotten to the Court.¹

2. In Esteras v. United States, Justice Barrett wrote for what was essentially a 7-2 majority (with Justice Alito, joined by Justice Gorsuch, dissenting) in holding that district courts considering whether to revoke federal prisoners’ terms of “supervised release” may not look to retribution vis-à-vis the defendant’s underlying criminal offense—which is a factor that is specifically listed among those that should go into a prisoner’s sentence, but excluded from the factors that should go into whether to impose supervised release in the first place.

3. In McLaughlin Chiropractic Associates v. McKesson Corp., Justice Kavanaugh wrote for a 6-3 majority (with the three Democratic appointees in dissent) in a technical but significant interpretation of a statute known as the Hobbs Act—the statute generally governing direct judicial review of administrative action. The majority held that, when an agency adopts an interpretation of a statute in pre-enforcement proceedings and that interpretation is not disturbed on direct judicial review, that interpretation does not bind different district courts in subsequent enforcement proceedings. In other words, as Justice Kagan put it in her dissent, instead of challenging an agency rule directly, “a regulated party . . . can violate an agency’s rule, wait for the agency to discover the offense and bring an enforcement action, and only then challenge the rule as going beyond statutory authority.” The gravamen of Justice Kagan’s dissent (which, in my view, clearly has the better of the statutory interpretation analysis) is that the majority’s analysis “undermines the certainty and finality Congress sought in designing a mechanism for judicial review,” by making it easier for litigants to challenge seemingly settled administrative actions years after they were undertaken (which makes this case a sequel to the major administrative law rulings from last term—especially Corner Post). But it also has significant venue implications, for instead of having to bring a pre-enforcement challenge in a specific circuit (usually the D.C. Circuit or the circuit in which the challenging party is located), the majority’s analysis opens the door to those who wish to challenge prior administrative action provoking an enforcement action in an especially friendly venue—and using that suit as the guise for challenging the regulation.²

4. Speaking of major venue implications, Justice Kavanaugh also wrote for the Court in Diamond Alternative Energy v. EPA. In that case, a 7-2 majority (with Justices Sotomayor and Jackson writing separate dissents) held that fuel producers have Article III standing to challenge the EPA’s approval of California regulations requiring automakers to manufacture more electric vehicles—despite serious questions about whether automakers would stop manufacturing EVs without those regulations (and, it should be said, the very real possibility that the EPA will soon rescind its approval of those regulations). I already quoted above from Justice Jackson’s dissent—which all-but accuses the majority of manipulating Article III standing doctrine to favor “moneyed interests.” Indeed, Jackson points out the rather inexplicable distinction between the majority’s explanation for why these plaintiffs have standing, but the plaintiffs in Clapper v. Amnesty International, for instance, did not. (In her words, “If the Court privileges the interests of one class of litigants over others, even unintentionally, it can damage Americans’ faith in an impartial Judiciary and undermine the long-term credibility of its judgments.”) I’ll just add, again, the venue implications: When courts recognize standing on the part of parties that are downstream of the entities that are directly subject to the challenged state or federal regulations, they are necessarily expanding the scope of venue—because it is far more likely that downstream parties will be more geographically distributed than the regulated parties themselves. That’s not present in Diamond Alternative Energy because the entire case (which was brought in the D.C. Circuit) is about the effects of California regulations. But it’s not hard to imagine how other parties seeking to challenge federal regulations will rely upon the majority’s … debatable … redressability analysis in other forums going forward.³

5. In Stanley v. City of Stanford, Justice Gorsuch wrote for a 7-2 majority (with Justices Sotomayor and Jackson dissenting) in holding that the Americans with Disabilities Act does not apply to discrimination against retired former employees who neither hold nor desire a job whose essential tasks they can perform with reasonable accommodation. (The plaintiff had retired due to a disability, and challenged the City’s differential provision of insurance benefits to those who retired after 25 years of service versus those who retired earlier due to disability.)⁴ Then things got weird: Gorsuch went on to conclude, in part of the opinion joined by Justices Alito, Sotomayor, and Kagan, that there could be circumstances in which individuals who are now retired could nevertheless state a viable ADA claim—even if Ms. Stanley can’t. (Justice Jackson’s dissent provides a fifth vote for that conclusion, which will presumably affect future ADA cases going forward.) This provoked a sharp procedural disagreement from Justice Thomas (joined by Justice Barrett), about the wisdom and propriety of going beyond the question presented. In a future issue, I hope to delve deeper into this debate—and what strikes me as a fair amount of chutzpah from Thomas and Barrett for objecting to such a maneuver here, but not in other cases (like Dobbs). Indeed, the Court’s … inconsistency … on this score seems like something the justices ought to genuinely reflect upon, and not just exacerbate.

6. Finally, in Fuld v. Palestine Liberation Organization, Chief Justice Roberts wrote for an effectively unanimous Court in upholding the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), a statute that deems the PLO and Palestinian Authority to have consented to being subject to civil suits in U.S. courts under the Anti-Terrorism Act if they had engaged in two specific types of conduct after the statute was enacted. Roberts’s opinion held that such a statute (and the “personal jurisdiction” it creates) is consistent with the Due Process Clause of the Fifth Amendment. Of interest to Civil Procedure professors and civil litigators (and perhaps no one else), the majority opinion recognizes, for the first time, that personal jurisdiction in federal court is not subject to anywhere near the same federal constitutional limitations as personal jurisdiction in state court (the Court had long recognized that this was a question, but it had never expressly resolved it). The Court stopped short of deciding whether the Fifth Amendment imposes any limits on when foreign defendants can be brought into U.S. courts; it held only that, even if such limits exist, the PSJVTA doesn’t transgress them. Justice Thomas wrote separately to concur in the judgment, and was joined in large part by Justice Gorsuch.

[Exhale.]

Turning to this week, we expect a regular Order List at 9:30 ET this morning. And as of now, the justices are set to hand down more decisions in argued cases Thursday at 10 ET. We know for sure (see the trivia below) that Thursday won’t be the last day for opinion announcements this term. We don’t know yet how many additional days the Court will add—or which days. It stands to reason that it won’t be before Thursday. But it wouldn’t surprise me if the Court were to add this Friday or next Monday as decision days (or both) before heading off (at least outwardly) on its summer recess.

And that’s all without regard to the emergency applications that remain pending in the third-country removal and RIFs cases—in which decisions are already overdue, and could, quite obviously, come at any time, including this week.

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SCOTUS Trivia:
The Last Opinion Announcements of the Term

One of the many unspoken quirks of how the Supreme Court hands down decisions from the bench is what the Court makes publicly known, in advance, about the enterprise. In almost every case, all that the public knows in advance is that the Court is taking the bench at 10 a.m. on a specific day to hand down one or more rulings in argued cases. There’s no public information about which decisions are coming—or even how many.

But there’s one important exception to this norm: The Court’s Public Information Office does inform the press corps (and, through it, the public) in advance of which day will be the last day on which the Court hands down opinions in argued cases—which means, thanks to the process of elimination, we will know in advance which (and how many) rulings are coming then. This also means that, until the Court makes that announcement, we know that the next opinion day isn’t the last (so, for instance, there’s no way we get all 11 outstanding rulings this Thursday).

Of course, you won’t find any of this information in the Court’s rules, on its website, or in any other even quasi-official document put out by the Court. As with so much of the Court’s operations, it’s a matter of unspoken but tirelessly observed tradition.

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1. In that respect, this ruling reminds me of the Court’s unanimous 2023 ruling in Axon Enterprise, which opened the door to challenges in any district court to constitutional challenges to the structure or existence of federal agencies.

2. There’s also the striking contrast between the rather … permissive … approach the Court takes to administrative litigation in McLaughlin Associates and the far more restrictive approach it took in its rulings on the emergency applications in Department of Education v. California and Trump v. J.G.G. just two months ago. In both of those rulings, the Court took a very narrow view of the availability of relief under the Administrative Procedure Act—thereby constraining the ability of litigants to challenge nationwide policies in any district court (versus the Court of Federal Claims in California and the specific district courts in which individual alien enemies are detained in J.G.G.).

3. And, again, a more restrictive view of Article III standing was the basis for the Court’s grant of emergency relief in the probationary employees case back in April.

4. I’ll just note here the very sharp elbow Justice Jackson throws in footnote 12 of her dissent—which is a rather rousing indictment of the Court’s approach to “textualism.” In her words:

pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By “finding” answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as “textual” inevitabilities. So, really, far from being “insufficiently pliable,” I think pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.