163. A New Kind of Judicial Supremacy

The Supreme Court closed the balance of the October 2024 Term with both actions and opinions that bespeak a new vision of how it exercises power—one that is as dangerous as it will be unpredictable.

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The Supreme Court made a dizzying amount of news last week—handing down the last ten rulings in cases argued during the October 2024 Term. Obviously, the birthright citizenship/universal injunctions decision (about which I wrote Friday afternoon) is the lead story. But I wanted to use today’s issue to provide capsule summaries of all ten—and to offer at least a first take on a theme for the entire term. In a nutshell, I think the most telling single opinion from the entire term is Justice Kavanaugh’s concurrence in the birthright citizenship ruling—which, in my view, can be fairly read to stand for the proposition that the Court will do whatever it wants, whenever it wants, never mind the procedural formalities that might get in its way. And I think that principle is fairly reflected in most of the Court’s big decisions from the term—including almost all of the headline-generating rulings respecting emergency applications.

Just like a stopped clock, a Court that does whatever it wants whenever it wants will every so often get things “right.” And at a more basic level, a Court that preserves its power to act when it wants to act will at least theoretically remain in a position to check other institutions of government (like a law-indifferent President) to a degree that a Court that formally ceded its power would not be. But the more that the Supreme Court in general (and this Court, specifically) does whatever it wants, whenever it wants, the more that it is betting its future legitimacy on continuing public support for being subject to its whims. That is a very different vision of judicial supremacy than the one to which I ascribe—and a vision that is not only deeply unstable in the long run, but that seems particularly ill-suited for the treacherous political and constitutional moment in which we find ourselves.

More on all of that in a moment—after (and in light of) the news.

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On the Docket

Last week started with a relatively innocuous Order List. The Court added one relatively modest case to the docket for next term, and resumed the briefing in a case it had previously granted at the Biden administration’s request and then paused when the Trump administration came to office, which will also be argued in the fall.¹

The Court also handed down four orders on Tuesday and Wednesday denying stays of execution to Florida death-row inmate Thomas Gudinas and Mississippi death-row inmate Richard Jordan. There were no public dissents from any of the orders.

Thursday brought with it four rulings in argued cases:

1. Hewitt v. United States: For what was effectively a 5-4 majority, Justice Jackson (joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Gorsuch) sided with federal prisoners in a dispute over the effects of original criminal sentences on re-sentencings required by the First Step Act of 2018. Justice Alito wrote on behalf of himself and Justices Thomas, Kavanaugh, and Barrett in dissent. [One nerdy statistical note: of the eight 5-4 rulings the Court handed down in argued cases this term, this lineup (the Chief and Gorsuch with the three Democratic appointees) was the only one to recur; Hewitt was the third time it happened.]

2. Medina v. Planned Parenthood: I’m planning to devote an entire issue to this case, which is my early vote for the quiet blockbuster of the term. For a 6-3 majority (with the three Democratic appointees in dissent), Justice Gorsuch held that health care providers like Planned Parenthood can’t bring suits to enforce the “any qualified provider” of the Medicaid statute—meaning that even if a state like South Carolina unlawfully bars Planned Parenthood from providing services to Medicaid recipients, the only remedy is for the Department of Health and Human Services to withhold some or all of South Carolina’s Medicaid funding. I’ve written before about the deeply flawed doctrinal moves the Court has made to make these kinds of suits more difficult. But there’s even more going on here about both constitutional interpretation in general and the history and meaning of Reconstruction in particular—as the heated exchanges between Justice Gorsuch’s majority opinion and Justice Jackson’s dissent (which was joined in full by Justices Sotomayor and Kagan) illustrate. More on all of this anon (perhaps later this week, news depending).

3. Gutierrez v. Saenz: In yet another opinion reversing the Fifth Circuit’s approach to standing doctrine,² Justice Sotomayor held, for what was effectively a 6-3 majority, that a Texas death-row inmate could bring a due process challenge to Texas’s post-conviction DNA testing procedures. Justice Barrett concurred in part and concurred in the judgment. Justices Thomas and Alito both penned dissents, with the latter’s joined by Thomas and Gorsuch.

4. Riley v. Bondi: In another 5-4 ruling (this time with Justice Gorsuch joining the three Democratic appointees in dissent), Justice Alito held that a particular type of order in an immigration proceeding (a denial of deferral in a “withholding-only” proceeding) isn’t a “final order of removal,” and thus can only be challenged as part of an appeal of such a final order (which will often be entered much earlier—rendering such an appeal untimely). Justice Sotomayor’s dissenting opinion cogently points out the absurdity of the statutory interpretation the majority adopts to reach that result—again, under the guise of “textualism.” Sigh.

Friday brought with it rulings in the six remaining argued cases:

1. Trump v. CASA, Inc.: Friday’s post covered in detail the 6-3 ruling limiting universal injunctions and staying (in part) the three that had been entered against President Trump’s efforts to limit birthright citizenship by executive order. (More below, as well.)

2. Kennedy v. Braidwood Management, Inc.: For the other ideologically split 6-3 majority (with Justices Thomas, Alito, and Gorsuch in dissent), Justice Kavanaugh rejected an Appointments Clause challenge to the HHS Preventive Services Task Force—a body that issues public recommendations about which preventive healthcare services insurers must cover under the Affordable Care Act. Specifically, the Court held that Task Force members are “inferior officers,” not principal officers, so they can be appointed by the Secretary of HHS. Justice Thomas wrote for all three dissenters in defending the Fifth Circuit’s Appointments Clause analysis.

3. FCC v. Consumers’ Research: The Braidwood majority returned to slap the Fifth Circuit down again by rejecting a non-delegation challenge to the Universal Service Fund (for background, see this post from November). Specifically, Justice Kagan’s majority opinion reaffirmed the traditional (and very modest) “intelligible principle” test for non-delegation challenges, and then concluded that the various delegations on which the Universal Service Fund are based satisfy that test both on their own and cumulatively. Justice Gorsuch wrote for the dissenters.

4. Mahmoud v. Taylor: In the other competitor for quiet (or not-so-quiet) blockbuster ruling of the term, Justice Alito wrote for a 6-3 majority (with the three Democratic appointees dissenting) in holding that a group of Montgomery County, Maryland parents were likely to succeed on their claim that exposing their children to “LGBTQ+-inclusive” storybooks in public school without any right to opt out violates their rights under the Free Exercise Clause. As Justice Sotomayor wrote in closing her dissent,

   The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now.

5. Free Speech Coalition v. Paxton: Speaking of the First Amendment, Justice Thomas wrote for a 6-3 majority (with the three Democratic appointees dissenting) in upholding a Texas law that requires websites to verify the age of visitors if “more than one-third of [their content] is sexual material harmful to minors.” Critically, the majority reached this result by applying “intermediate scrutiny.” As Justice Kagan explains (quite persuasively, in my view), these kinds of laws have historically been subjected to “strict scrutiny,” and for good reason. By reducing the burden on states in such cases, the ruling risks making it easier for government to impose overbroad and/or pretextual regulations of speech (here, by limiting the ability of adults to visit these sites without providing information they may wish to keep anonymous) in contexts in which it has historically had to prove that less-restrictive means of achieving the same goal aren’t available.

6. Louisiana v. Callais: Finally, in a bit of a surprise, the Court did not hand down a ruling in the consolidated Louisiana gerrymandering cases it heard earlier this term. Instead, it entered an order “restor[ing]” them to the calendar “for reargument,” and noting that, in due course, “the Court will issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing.”³ Justice Thomas dissented—on both procedural and substantive grounds. His procedural claim—that the Court has an especial obligation to swiftly resolve the very small number of mandatory appeals it still hears from three-judge district courts—is an interesting one (to which I’m at least initially sympathetic), and one I’ll try to unpack in more detail in a later issue.⁴

The Court may have finished handing down rulings in argued cases on Friday, but it has another busy week ahead of it. At 9:30 ET today, we’ll get the “regular” orders out of last Thursday’s Conference—the usual array of grants and denials of new cert. petitions and other miscellany. Then, at 9:30 ET on Thursday, we’ll get the orders out of the “Cleanup Conference,” about which I wrote last year. That list—the last collection of meaningful orders we’ll get from the justices before they come back in late September—can often include important opinions, whether in summarily affirming or reversing lower courts without argument, or in concurrences or dissents from the dispositions of pending appeals. (In recent terms, the Cleanup Conference list usually comes the day after the last rulings in argued cases. It’s not at all clear why this one is coming six days later; perhaps there’s a lot of writing to come.)

And, as if that wasn’t enough, we’re still waiting for the Court to rule on multiple pending emergency applications—not just in the three pending applications from the Trump administration (including the request for “clarification” in the third-country removals case), but in a quietly important application from Florida seeking to put back into effect a state law that makes certain federal immigration offenses state crimes, as well. After the district court enjoined key provisions of the law (and the Florida Attorney General urged at least some state law enforcement officers to continue enforcing them nonetheless), the Eleventh Circuit denied Florida’s application for a stay. We’ll see if the Supreme Court feels differently; Justice Thomas has ordered the plaintiffs to respond by 4 p.m. (ET) on Wednesday.

The headlines may say that the Court is “done for the summer” now that it’s risen for its summer recess, but that hasn’t been true formally since 1980, and it certainly won’t be true in practice this year.

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The One First “Long Read”:
The Supreme-est Supreme Court

I’m mindful that this is already a long post (sorry!), so will come quickly to the bigger picture point: My friend and University of Michigan law professor Leah Litman is responsible for two of the most memorable lines about the current Court: That it’s a “YOLO” Court (you only live once), and that its defining characteristic is “no law, just vibes.” It seems to me that events of the past few months have provided a heck of a lot of fodder for those who ascribe to Leah’s view—and some pretty troubling questions for those who continue to claim that this Court is driven by analytically coherent and politically neutral legal principles in its decisionmaking. Some readers may think this has been clear for some time; others may dispute whether it’s even true today. I’ll just offer three data points for ways in which the Court’s behavior this term lends particular credence to Leah’s charge(s).

Example 1: The Venue Cases

I wrote last week about the significant body of cases in which the Court seemed to be selectively interpreting and applying rules about where specific types of challenges to government action can be brought and by whom—in ways that appear to favor certain plaintiffs (e.g., big corporations) over others (e.g., alleged alien enemies). As I noted then, the upshot of these rulings isn’t that those plaintiffs are going to ultimately prevail; it’s that they’ll get to file in especially friendly (or hostile) forums—putting a thumb on the scale until and unless the justices intervene. Then, but only then, the justices can decide if they’re comfortable with the plaintiff-sympathetic (or plaintiff-hostile) merits ruling adopted by the lower courts—and grant or deny certiorari accordingly.

Consider, in this regard, the subset of the Court’s cases this term that came from the Fifth Circuit. Of the 55 signed rulings in merits cases, 12 of them came from the New Orleans-based court of appeals, which saw its rulings reversed or vacated nine times (the second straight term that the Fifth Circuit had the most “losses” of any lower court).⁵ Seven of those 12 cases were nationwide claims that could’ve been brought elsewhere—but where the plaintiffs chose the Fifth Circuit. In six of those seven, the justices disagreed with the Fifth Circuit (the seventh was the R.J. Reynolds venue decision—in which the Court agreed the case could be brought there). Thus, the Court is enabling certain litigants to shop for friendly courts in which to bring ideologically charged disputes—and then deciding, only once the lower courts have done what the plaintiffs presumably sought by filing there, whether to let it pass.⁶ So we get rulings like the non-delegation and Braidwood decisions summarized above, or the ghost guns ruling from earlier this term, but in a context in which a less-self-assured Court might be inclined to make it harder for those cases to be brought in the first place.

Example 2: The Trump Emergency Applications

And then there’s how the Court has handled emergency applications from the Trump administration. Counting Friday’s ruling on the three consolidated applications in the birthright citizenship cases, the justices have now granted, at least in part, each of the last 14 applications filed by the Department of Justice. With the exception of Wilcox (about whether President Trump could fire members of the MSPB and NLRB), none of these rulings have substantively endorsed President Trump’s conduct; most have been unexplained, and the ones with explanations have, like the birthright citizenship decision, focused entirely on procedural issues.

But in the process, the Court is running roughshod over the long-settled statutory procedures that are supposed to guide (and cabin) such relief. Never mind the absence of “irreparable harm” in most of these cases, or the far more compelling equities on the side of those challenging President Trump’s (in many cases, patently unlawful) policies; all that matters is letting the President win in the short term and preserving the Court’s power to ultimately decide if the policies are lawful at some undetermined (and potentially never-coming) point in the future.

Consider the one context in which we’ve seen the Court push back—when, after giving Trump a win in the first Alien Enemies Act case in April (by holding that those cases had to be brought as habeas petitions in detainees’ districts of confinement), the Court stepped back in when its other holding in that first case (that detainees had a right to notice and an opportunity to contest their removability under that statute before being removed) appeared on the verge of being flouted. Given what happened in the third-country removal case, it seems in retrospect that the issue wasn’t the deprivation of due process to those detainees; it was the possibility that the President might stick a thumb in the Court’s eye. When the government stuck its thumb in the district court’s eye in D.V.D., the Court … acquiesced. So conceived, the story isn’t about judicial power; it’s about the Supreme Court’s power.

Example 3: Birthright Citizenship

And then there’s Friday’s ruling in the birthright citizenship case. I’ve already said quite a bit about it, so will focus here on two points.

First, the Court picked this vehicle as the one in which it wanted to rein in universal injunctions. I’ve noted before that the Court had two golden opportunities to take up the validity of universal injunctions back in January—both in cases in which the federal government otherwise received the relief it sought. Some have suggested that this case was an especially attractive vehicle because the unlawfulness of the birthright citizenship executive order is so apparent. I couldn’t disagree more. Not only should that have formally militated against the relief the government sought (how can it be irreparably harmed by an injunction blocking a policy that should never go into effect), but it also drives home the heart of the optical problem: The Court is limiting the power of lower courts in the exact case in which that power is so critical—and without doing the obvious thing to abate the harm (i.e., quickly and conclusively resolving the merits). One can be skeptical about universal injunctions in general and still think this was just about the worst way for the Court to address the issue.

And (second) then there’s Justice Kavanaugh’s concurrence. If you haven’t read it, you should. It’s perhaps the clearest (and most exasperating) summary of what the middle of the Court is doing, or at least thinks it’s doing, in these cases. Among other things, Kavanaugh suggests that the Court should be weighing in, quickly, in just about every case in which there’s a need for a “nationally uniform interim answer,” without regard to whether the Court even has the authority to weigh in in those contexts. Again, the formalist defect aside, there’s also the obvious inconsistency: The Court literally didn’t do that in this very case. Just about everyone agrees that it’s a good bet that the executive order will shortly be blocked, again, on a nationwide basis—whether through a universal injunction in one of the cases brought by states or through an injunction on behalf of a nationwide class of plaintiffs certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure. And as I suggested on Friday, it’s entirely possible that there will be five (or six or seven) votes to leave such a ruling intact pending final disposition of the merits. But the majority assiduously avoided saying anything about either of those possibilities. (Just like the majority still hasn’t said a word about the validity of President Trump’s Alien Enemies Act proclamation.)

What Kavanaugh means, apparently, is that the Court will provide a “nationally uniform interim answer” in an undefined subset of cases in which such an answer is sought,⁷ pursuant to an unstated set of criteria that the Court won’t identify, and without regard to the long-settled precedents that have articulated the very criteria his opinion expressly eschews.⁸ That’s certainly a version of judicial supremacy insofar as it preserves the Supreme Court’s ability to provide those answers both on an interim and final basis. But that version comes at the expense of both (1) the lower courts’ ability to do their jobs; and (2) any analytical coherence to why the Supreme Court has that power—whether under the Constitution itself or the statutory delegations the Court is purporting to exercise. It’s judicial supremacy as an exercise in hubris.

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I’ve gone on too long already, but wanted to add one last point: Folks like Leah have been leveling this criticism toward the Supreme Court for quite some time. The reason why I think it hits different at this moment isn’t only because of the specific behavior of the Court during its current term, but also because of the broader constitutional and institutional peril in which we find ourselves.

Courts have been, and will likely continue to be (at least until next year’s elections), the principal check on President Trump’s … casual … relationship with the law. But (and largely because of that) they have also become high-level targets for the President and his supporters—both verbally and literally. With such an ongoing assault on judicial independence, now is the time for the justices to remind everyone why we have an independent judiciary—not as an end unto itself, but as a means of preventing tyrannies of the majority. The way the courts do that is not just by checking the other institutions of government, but by doing so through a coherent (and publicly articulated) set of principles the neutral application of which ought to provide the very moral authority on which the Court’s power depends. By doing nothing to push back against those attacks (indeed, by indirectly incentivizing them in some cases), and by behaving in a way that gives at least the appearance of justices more interested in rationalizing their votes than in reconciling their jurisprudence, the Supreme Court is ultimately weakening the entire institution of the federal judiciary at the worst possible moment. The Court may think that all it’s doing is reining in lower courts. But I fear that that, too, is just a vibe.

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1. Ironically (and almost certainly coincidentally), that case was the one in which the Biden administration had asked the Court to take up two questions—the merits and whether universal injunctions exceed the power of district courts. Back in January, the Court granted only the first question—passing up the opportunity to reach and resolve the universal injunction issue in a … less-fraught … case.

2. By my count, this is at least the sixth time since June 2023 (so, two years ago) that the Court has held that plaintiffs did (or didn’t) have standing after the Fifth Circuit had concluded otherwise. That’s … a lot.

3. The Callais order threw a bunch of people for a loop on Friday because it was posted under “opinions relating to orders” on the Supreme Court’s website, and not “opinions of the Court.” As I’ve noted previously, though, rulings from the Supreme Court can post to any of five different webpages, depending upon what they are (which, as Callais proves, we never know for sure in advance).

4. Because Callais did not produce a signed opinion, we ended up with a total of 55 signed opinions in merits cases this term. Other than the COVID term (OT2019, when there were 53 such rulings), that’s the lowest total since 1864.

5. To be fair, the Fourth Circuit had a worse time of it—with the Court reversing or vacating all seven of the cases it took from the Richmond-based appeals court. But with regard to total losses, the Fifth Circuit was once again the clubhouse leader.

6. Some might even suggest that this is deliberate on the Court’s part insofar as reversals of the Fifth Circuit burnish claims that the Court is more moderate than its critics claim. I wouldn’t presume to speak for the justices’ intent; only for the effects of their rulings.

7. Indeed, although Justice Barrett’s majority opinion (in footnote 18) repeated the government’s concession that it would seek the Supreme Court’s further review in this case, there’s no requirement that it ask the Court to step in when it might not like the answer—as, for example, in the law firm cases, which the Trump administration haven’t appealed at all.

8. As I noted on Friday, footnote 3 of Kavanaugh’s concurrence provides a half-hearted (and laughably superficial) descriptive justification for why the Court should treat similarly two very different types of emergency relief that justices across the ideological spectrum have, for decades, interpreted to require two very different showings. Apparently, he’s a formalist about universal injunctions themselves; just not about the difference between an injunction and a stay.