191. Taking Stock After a Wild Week
It's getting increasingly difficult to keep tabs on even the Supreme Court-related (and Court-adjacent) news. Today's issue looks at where things stand (and what to expect next) across six key topics.
Welcome back to “One First,” a (more-than) weekly newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you, especially our thousands of new subscribers, for your continued support—and I hope that you’ll consider sharing some of what we’re doing with your networks:
Most Mondays, the newsletter follows something of a set format—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.
But today’s issue is going to be a little different—because last week was … a lot, as reflected, among other things, in the five(!) different issues of the newsletter it prompted me to write.1 From Wednesday’s oral argument in the tariffs cases to Thursday’s grant of emergency relief in the sex-markers-on-passports case to Friday’s cryptic and confounding intervention by Justice Jackson in the SNAP case (and the developments on that front from just before midnight last night), the Supreme Court’s news cycle seems to be reaching peak 2025.
Thus, rather than take a deep dive into any one of those topics (or various other headlines), I wanted to use today’s issue for something of a reset—to bring everyone up to speed on where things stand across a half-dozen different major issues currently before and/or involving the Court; what the next steps are; and when we expect those next steps to happen. Indeed, one of the real challenges of our current moment is that there is just so much happening of so much importance that it’s easy even for those trying to follow all of the threads to lose track of at least some of them. That doesn’t make any of these stories less important; it just makes it harder for all of us to stay informed.
Hence, today’s post. In particular, here’s my list of the six big Court-related stories—each of which will be the subject of more detail below the fold:
The Short-Term Fate of SNAP
The Tariffs Arguments
Kim Davis and Same-Sex Marriage
The Illinois National Guard Case
The Fallout from the Passports Decision
The Court vs. the Lower Courts
(Don’t worry; there’s still some trivia at the end, too—with Justices Brandeis and Kagan each making a bit of a cameo.)
Hot Topic 1: The Short-Term Fate of SNAP
As I wrote about (late) Friday night, Justice Jackson on Friday issued an “administrative stay” of a pair of orders from Judge McConnell in one of the lawsuits challenging the Trump administration’s refusal to use other available sources of appropriations controlled by the Department of Agriculture to make the November payments for the Supplemental Nutrition Assistance Program (SNAP). The keys to Jackson’s ruling were two-fold: First, she kicked the issue back to the First Circuit to rule on the Trump administration’s request for an indefinite stay pending its appeal of those two orders; and second, she set her “administrative stay” (a temporary stay while courts consider whether to issue a stay pending appeal) to expire 48 hours after that ruling comes down—to put pressure on the Supreme Court to move quickly as soon as that happens.
I wrote on Friday that I expected the First Circuit to rule over the weekend. Sure enough, at 11:54 p.m. (EST) last night, the court of appeals denied the Trump administration’s request for a stay pending appeal—accompanied by a 26-page opinion written by Judge Rikelman.2 Justice Jackson’s intervention Friday seemed calculated to dramatically increase the odds of a ruling by the Supreme Court on a stay pending appeal by the end of this week, and, subject to the caveat in the next paragraph, the First Circuit handing down its ruling as quickly as it did should only increase the odds of that happening.
The complication, of course, is whether the House and President Trump agree to the deal the Senate made last night to end the government shutdown—and, if so, whether that deal has the effect of mooting these lawsuits by, e.g., immediately providing full funding for the SNAP program, including for November. Here, again, Justice Jackson’s deadline will do some work—because the Court might have been inclined to wait and see what happened without it. It might still wish to do so, but now, that can happen if and only if Justice Jackson or the full Court extends her administrative stay sometime between now and 11:54 p.m. tomorrow night.
Of course, depending upon how the timing of any legislation cashes out, it may still provide the justices with an off-ramp—to avoid ruling on the Trump administration’s application one way or the other if new legislation renders it moot. The upshot is that some kind of denouement seems likely this week. Whether that comes with a whimper, rather than a bang, remains
Hot Topic 2: Kim Davis and Same-Sex Marriage
Speaking of this week, we expect the Court to hand down a “regular” (i.e., routine) Order List at 9:30 ET this morning—the only formal actions that the Court will definitely take this week. This will be the normal batch of rulings coming out of last Friday’s Conference—mostly denying discretionary review in cases in which parties that lost in the lower courts have sought it.
One of the parties seeking such review is Kim Davis, the former county clerk for Rowan County, Kentucky, who is the petitioner in No. 25-125, Davis v. Ermold. This is Davis’s latest attempt to get the Supreme Court to consider overruling Obergefell v. Hodges—the 2015 decision that recognized federal constitutional protections for same-sex marriage. I’ve written before about why I think the media obsession with this petition is not just unjustified, but affirmatively harmful—by misleading folks into thinking that standard procedural processing at the Court reflects conscious attention to this case, specifically. There is, in my view, virtually no chance that the Court grants this petition—not because Obergefell is perfectly safe, but because, even if it isn’t,3 there are tons of reasons why justices looking to overrule it would not want to use this case as the vehicle for doing so.
Anyway, back to the timing: To use the Court’s jargon, the petition was “distributed” for the justices’ private Conference last Friday. That doesn’t necessarily mean it was discussed (only 3-4% of petitions “distributed” for a specific Conference are actually discussed). But it means there’s a chance we’ll see a denial of certiorari in today’s Order List. Critically, even if it’s not there, that’s not by any means a sign that certiorari is going to be granted; it could just mean that a single justice is writing an opinion respecting the denial of certiorari—an opinion that could take a few weeks to finalize. Indeed, that’s what happened the last time this very case reached the Court.
All of this is to say, we may have more certainty later this morning; we may not. But I still don’t see this case going anywhere—and am a bit perturbed by the number of stories in the media that have tried, however implicitly, to suggest otherwise in the interest of generating clicks.
Hot Topic 3: The Tariffs Arguments
Speaking of things I don’t expect this week (or anytime soon), the Court now has the tariffs cases fully under submission—after two hours and 44 minutes of oral arguments on Wednesday, which I had previewed here. For present purposes, I just want to underscore three points:
First, in all, I thought the arguments went better for the challengers than they did for Solicitor General D. John Sauer in defending the tariffs. Sauer received especially skeptical questions from Chief Justice Roberts, Justice Barrett, and, perhaps most intriguingly, Justice Gorsuch. All three also had hard questions for the two lawyers who argued for the plaintiffs—Millbank partner Neal Katyal and Oregon Solicitor General Benjamin Gutman. But my read of the arguments tracks what the reporters for just about every major outlet took away from the proceedings—a Court that seemed far more skeptical of the tariffs than those defending them should be comfortable with.
Second, part of why those same media accounts tended to use relatively mild adjectives to describe the Court’s skepticism—and hedged their bets about the outcome—is because this Court has become increasingly difficult to predict in high-profile cases based upon the oral arguments alone. Not so long ago, it was often possible to tell within the first five minutes of argument how a politically charged case was likely to go—if Justice Kennedy jumped in early and tipped his hand. But there are multiple examples in the last few years of Justice Barrett, for instance, appearing to favor one side during the oral argument, only to end up voting for the other side (and sometimes writing the majority opinion). Between that and Justice Gorsuch’s thoughtful, challenging questions to both sides, to say nothing of the Court’s behavior in other Trump-related cases to date, it’s hard to be confident that what many, if not most, of us heard on Wednesday is going to translate into the final ruling in the case.
Third, speaking of that final ruling, the only thing I am confident about is that such a ruling won’t be coming anytime soon. Part of that is because there is almost no chance the Court is going to be unanimous, and separate opinions tend to really slow down the Court’s internal machinations. Part of that is because there is no real emergency here; the tariffs are currently in effect, and there’s no impending deadline by which the Court must answer questions about their legality (in contrast to the TikTok case from January, in which everyone understood that the Court was hustling to hand down a ruling before the statute’s punitive provisions kicked in on January 19). And part of it is because, as today’s newsletter well reflects, the justices have quite a bit of other important work on their plate, too. Ultimately, I think a ruling in January or February is far more likely than a ruling between now and the end of 2025.
Hot Topic 4: The Illinois National Guard Case
Speaking of other important work on the Supreme Court’s plate, today is the deadline for the first set of supplemental briefs respecting the Trump administration’s emergency application in the Illinois National Guard case. As I explained last Monday, the justices had made an unusual request for more briefing on the legality of President Trump’s attempt to federalize National Guard troops and deploy them into Chicago and its environs in response to anti-ICE/CBP protests. The parties’ first filings are due by the end of the day. We may also get a flurry of amicus curiae (friend of the Court) briefs—which the Court’s briefing order also invited so long as they were filed by today.
To be clear, we don’t expect a ruling today—or this week. The Court’s order gave the parties a chance to file reply briefs by next Monday, and the justices won’t rule until they’ve been able to process those filings, too. My best guess on the timing here is to expect a ruling sometime before Thanksgiving—and perhaps as soon as the middle of next week.
But things continue to move forward in some of the other cases challenging National Guard deployments; on Friday, in a sweeping, 106-page ruling reflecting the results of a bench trial, Judge Karin Immergut held that President Trump’s federalization and attempted deployment of National Guard troops in Portland, Oregon was unlawful on the merits—and issued a permanent injunction against it.4 That ruling, among other things, may moot, or at least transmogrify, the ongoing proceedings before the full Ninth Circuit—which was considering whether to stay one of the temporary restraining orders that Judge Immergut had previously issued in the same case. (The Trump administration is likely to appeal this new ruling, so the dispute will be back in the Ninth Circuit, one way or the other, soon.)
Again, this is all a lot to keep track of. The TL;DR here, methinks, is that whatever the Supreme Court does in the Illinois case is going to have massive ramifications for the other litigation challenging National Guard deployments, which is why the briefs coming in today could be so significant. Judge Immergut’s ruling is a worthy read—especially in its demolishing of the federal government’s factual claims. But it’s not going to be the last word.
Hot Topic 5: The Fallout from the Passports Decision
As we wait for the Court’s next major ruling on a Trump administration emergency application, it’s worth not losing sight of the significance of the last one—Thursday’s grant of a stay in Trump v. Orr, the passport sex-markers case. I’ve already said quite a bit about the ruling, which crystallizes, in unusually accessible ways, so many of the problematic pathologies that have come to characterize how the justices are ruling on emergency applications from the Trump administration.
But it seems to me two further points are worth underscoring here.
The first is that the passports ruling is almost certainly a harbinger (and, to my mind, an ominous one) of how the Court is going to rule later this term when it finally takes up on the merits a direct challenge to overt discrimination on the basis of transgender status. The Court had, however disingenuously, ducked that question in its Skrmetti ruling last term—a move that left open the possibility that a majority of the Court might be willing to push back in cases in which the basis for the government’s action was unquestionably the affected individuals’ transgender or nonbinary status. But not only does the result in Orr seem inconsistent with that possibility; the rhetoric seems even further divorced from such an outcome. If a majority of the justices really are inclined to assert, without any support, that putting someone’s biological sex at birth on a passport is “merely attesting to a historical fact without subjecting anyone to differential treatment,” that cannot augur well for the cases to come.
Second, and with respect to other emergency applications from the Trump administration, there’s also now the further problems caused by a majority of the Court endorsing the miscalibration of the harm to the executive branch; the refusal to balance the harms to the plaintiffs; and the inversion of who bears the burden when the executive branch seeks emergency relief from the justices. We may see some or all of these moves play out when the Court rules on the other soon-to-be-ripe emergency application from the Trump administration—in Blanche v. Perlmutter, in which the Justice Department is asking the justices to greenlight Deputy Attorney General/Acting Librarian of Congress5 Todd Blanche’s removal of the Register of Copyrights, Shira Perlmutter.
Hot Topic 6: The Court vs. the Lower Courts
And speaking of Todd Blanche (I’m very proud of this particular segue), the Deputy Attorney General made quite a few headlines on Friday when, speaking at the Federalist Society’s National Lawyers Convention, he urged the students and other young lawyers in attendance to join the Department of Justice’s “war” against “rogue activist judges.” Those are very much his words, not mine. And they are equal parts galling and stunning (they’re profoundly hypocritical, too—but this post is long enough already).
The galling part is that he never actually explains which of the more than 100 federal district court judges (to say nothing of the dozens of circuit judges) to rule against the Trump administration are “rogue activist judges.” And all he really could provide as support for why they are “rogue activist judges” is because they are … ruling against the Trump administration. (In his words, “these Art. III judges [are] literally telling the president, the executive, what he can and cannot do.”)
The stunning part is that the number-two official in the Department of Justice, on video at a public forum, is claiming that his Department is at war against the federal judiciary. I am unaware of any official as high as Blanche ever suggesting as much, and it is profoundly dangerous—both insofar as it will necessarily invite further rhetorical (or more serious) attacks on federal judges and insofar as it will necessarily erode public faith in the lower courts (methinks that’s the point).
I’m planning to write about Blanche’s remarks (and the broader assault against the lower federal courts we’re seeing from Republican officials in both the executive branch and Congress) in a future issue, hopefully as soon as Thursday. For now, I’ll just close with two points.
The first is that I’m old enough to remember last year’s Federalist Society National Lawyers Convention, where I had the privilege of being loudly and clumsily attacked by a sitting circuit judge (while sitting next to her) for having the temerity to publicly criticize rulings by a particular federal district judge—criticism, it was suggested, that had led directly to death threats against that district judge. It’s fascinating how, at the very same conference just one year later, the Deputy Attorney General of the United States leveled far more inflammatory and far less substantiated criticisms at a far larger number of district court judges, and was roundly cheered for it. I wonder what’s changed between now and then?
Second, and far more importantly, these attacks on the lower federal courts are coming entirely because they have been the one institution over the past 9.5 months that has been even remotely effective in checking the Trump administration—by doing nothing more than adjudicating lawsuits challenging the executive branch’s actions. Not all of those rulings have been correct, but there comes a point when, if more than 100 district judges appointed by presidents of both parties (including judges, like Judge Immergut, appointed by President Trump) dating back to the 1970s and scattered across 30 different district courts are ruling against the executive branch, we might consider the possibility that the problem isn’t the judges.
Don’t take my word for it, though; read this essay in The Atlantic by Judge Mark Wolf—a Reagan-appointed district judge in Massachusetts who resigned from the federal bench on Friday so he could speak out publicly about, and work to thwart, the “existential threat to democracy and the rule of law” coming from the current President. The Wolf essay is remarkable not just for what it says, but for the choice it reflects. Wolf understood that he could stay on the bench or crusade against the Trump administration, but he couldn’t do both.
Like so many other judges on the U.S. district courts and courts of appeals, Judge Wolf understands the assignment—which is why they’ve become such a target for the White House and its allies in Congress. In contrast, as Justice Jackson put it in her dissent in the passports case on Thursday, the Court’s majority “misunderstands” it. Hopefully, public comments like Blanche’s help to drive home both that lesson and its stakes—sooner, rather than later.
SCOTUS Trivia: Justice Douglas (Finally) Retires
This week includes (at least) three anniversaries relevant to this newsletter.
November 11 (i.e., tomorrow) is the third anniversary of One First (and Karen and I will both have more to say about that in a special issue that should drop in the morning).
Speaking of Karen (I’m really rolling with the segues today), Wednesday is our anniversary; we broke the glass on November 12, 2011.
And Wednesday is also the 50th anniversary of the retirement of Justice William O. Douglas, who finally stepped down (at the urging of his colleagues) after 36 years, 209 days in office—still the record for the longest tenure of any justice in the Court’s history.
Douglas was succeeded, of course, by Justice John Paul Stevens—who himself served for 34 years and 192 days, the third-longest tenure in the Court’s history. That means that, from February 13, 1939 (the day Douglas’s predecessor, Justice Louis Brandeis, resigned) all the way to August 7, 2010 (the day Stevens’s successor, Justice Elena Kagan, was sworn in), only two people sat in that particular seat on the Court. That’s not as remarkable as the span from President John Tyler’s 1790 birth to the death, earlier this year(!), of his last surviving grandchild, but it’s still pretty wild.
There’s more to say about the decidedly awkward circumstances of Douglas’s retirement (and his efforts to continue participating in cases after he stepped down), at least some of which makes its way, with some embellishment, into The Brethren. For now, I’ll just note that Douglas’s record is increasingly in peril; if my math is right, Justice Clarence Thomas would pass Douglas as the longest-serving justice just over 2.5 years from now—on May 18, 2028, just over a month prior to his 80th birthday, and, perhaps far more significantly, nearly six months before the 2028 presidential election.
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!
If you’re not already a subscriber, I hope you’ll consider becoming one. If you are, I hope, circumstances permitting, that you’ll consider upgrading:
Either way, this week’s bonus issue for paid subscribers will drop on Thursday—in addition to a special anniversary issue everyone will receive tomorrow. And we’ll be back with our regular content (no later than) next Monday.
Have a great week, all!
If you’re curious, the previous record was three.
The opinion hit the docket at 11:49 p.m., but the order memorializing it didn’t post until 11:54 p.m. Hence my reliance upon the later time.
My own view, for what it’s worth, is that there are not five votes among the current justices to overrule Obergefell—and that the Court won’t take up a case presenting that question until after there are. I also think Obergefell stands in a very different position relative to the center of the Court than Roe did. That said, I can’t blame anyone for being more skeptical about—and cynical of—this Court.
Judge Immergut stayed that part of the injunction barring the federalization of National Guard units (albeit distinguishing between the Oregon National Guard and other states’ personnel), but not that part barring their deployment.
Perlmutter’s central argument is that Blanche is not the Acting Librarian of Congress because he was unlawfully appointed to that position, in which case he lacked the power to fire her. Suffice it to say, I’m using his putative title here only descriptively, and not because I disagree.
Mazel tov on your anniversary!
What an utterly delightful summary. Happy anniversary, Steve!