SCOTUStoday for Monday, October 27

Thank you to everyone who answered our call for feedback about this newsletter — we deeply and truly appreciate it. We received some great suggestions and will be incorporating some of them in the weeks ahead.

SCOTUS Quick Hits

• We’re one week away from the start of the court’s November sitting. We’ll be publishing previews of the cases scheduled to be argued throughout this week.
• Several cases on the interim docket are fully briefed and awaiting the court’s ruling, including the Trump administration’s request to be allowed to federalize and deploy the National Guard in Illinois.
• Tonight, Justice Ketanji Brown Jackson is scheduled to speak at Springfield Symphony Hall in Springfield, Massachusetts, about her path to the Supreme Court.
• SCOTUSblog’s executive editor, Zachary Shemtob, appeared on The Middle with Jeremy Hobson on Thursday to discuss public trust in the Supreme Court.

Morning Reads

• Trump’s dramatic rhetoric on tariffs ramps up pressure on Supreme Court (Lawrence Hurley, NBC News) — As the Nov. 5 argument on his authority to impose tariffs under the International Emergency Economic Powers Act draws closer, President Donald Trump is speaking regularly about how disastrous he believes it would be for the Supreme Court to uphold lower court orders striking down the tariffs. Critics of Trump’s trade policy see these comments as an effort to persuade the court to side with him, according to NBC News. “Trump’s remarks over the course of this year reflect a consistent theme: In his view, the tariffs are raising so much revenue and are so important to the country that a court ruling saying that he does not have the authority to impose them would be cataclysmic.”
• Nearly all Republican AGs add firepower to Trump’s birthright citizenship push (Ashley Oliver, Fox News) — Attorneys general from 24 states filed an amicus brief on Friday in support of Trump’s petitions for review on his executive order on birthright citizenship. Trump is asking the court to allow his order, which would bar “babies born to mothers living in the country illegally or temporarily visiting” from receiving automatic citizenship, to take effect, according to Fox News. “The state attorneys wrote that they have a unique interest in seeing birthright citizenship limited because it incentivizes illegal immigration, which they said has negatively affected their states.”
• With Republican majority, Louisiana Senate votes to push back election dates (Julie O’Donoghue, Louisiana Illuminator) — The Louisiana Senate on Saturday voted to push back 2026 election dates in the state in order to “leave as much time as possible to redraw Louisiana’s congressional map,” according to the Louisiana Illuminator. Lawmakers anticipate having that option after the Supreme Court decides Louisiana v. Callais, a case on race-based redistricting and the Voting Rights Act. “The legislation moves the political candidate qualifying period and two spring election dates for congressional primary contests back by approximately one month.”
• Lengthy Execution by Nitrogen Gas in Alabama Renews Concerns Over Method (Nicholas Bogel-Burroughs, The New York Times)(Paywall) — Thursday’s execution by nitrogen gas of Anthony Boyd in Alabama spurred “more concerns over the execution method,” because “[w]itnesses described seeing Mr. Boyd convulse and heave for about 15 minutes before being pronounced dead about 15 minutes later,” according to The New York Times. “Proponents of the method say that nitrogen hypoxia is less painful and less prone to error,” but Thursday’s witnesses weren’t the first witnesses to such an execution to describe a long period of writhing and discomfort. Justice Sonia Sotomayor raised concerns about nitrogen hypoxia in her dissent from the court’s denial of Boyd’s request for a stay of execution. “[W]hen a State introduces an experimental method of execution that superadds psychological terror as a necessary feature of its successful completion, courts should enforce the Eighth Amendment’s mandate against cruel and unusual punishment,” she wrote in the dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson.
• How a 2018 Supreme Court decision paved the way for meteoric growth in legal sports betting (Mark Sherman, Associated Press) — The high-profile arrests on Thursday “of more than 30 people, including an NBA player and coach,” in cases alleging rigged “sports bets and poker games” has put a spotlight on a Supreme Court decision from 2018 that “opened the floodgates to [the] legalized sports-betting industry,” according to the Associated Press. Writing for the majority, Justice Samuel Alito acknowledged that “the legalization of sports gambling is a controversial subject” and that opponents feared it would “corrupt professional and college sports,” but he said that Congress took the wrong approach to regulating it. “The trouble with the law, Alito explained, was that Congress did not make betting on sports a federal crime. Instead, it prohibited states from authorizing legalized gambling, improperly infringing on their authority.”

A Closer Look: The View from the Lower Courts

As hundreds of lawsuits against the Trump administration work their way through the legal system and amidst threats of violence against members of the judiciary, the work of lower court judges has perhaps never been more complicated. Three federal judges shared their perspectives during the SCOTUSblog Summit at Johns Hopkins University Bloomberg Center on Sept. 25, and a video of the discussion is now available online.

Judge Charles Eskridge of the District Court for the Southern District of Texas, Judge Neomi Rao of the U.S. Court of Appeals for the District of Columbia Circuit, and Judge Gabriel Sanchez of the U.S. Court of Appeals for the 9th Circuit said they’re concerned with declining trust in the judicial system and that, in response, they’re doing what they can to help the public understand their work. “I have done more to try to reach out and speak at events, speak with students, speak with others to try to communicate the role that we play and … to demystify some of the processes of what we do,” Sanchez said. Similarly, Rao said that it’s “important for judges to explain what they’re doing,” but she acknowledged that “there’s a tension between that and moving quickly.” 

Moderator Steve Inskeep noted that public denunciations of judges and Supreme Court justices are happening regularly this year, and he asked the panelists to reflect on that trend. Eskridge said it’s “concerning” and that it’s hard to respond as a sitting judge, because “you just can’t publicly comment on it [or] push back on it,” even when you know that judges across the country are doing their best while facing a lot of pressure. Rao echoed Eskridge’s point, noting that judges can’t defend themselves. What they can do is “follow the law and do their jobs with integrity.”

But even in the face of these challenges and others, the three judges said they enjoy their work and are honored to serve in their roles. “For all the work and outside pressures of it, I think it’s a wonderful job,” Sanchez said.

You can watch the full panel on YouTube.

SCOTUS Quote

“The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man.”

— Oliver Wendell Holmes, Jr.

On Site

Contributor Corner

Confessions of a Judicial Introspectionist

In his review of former Justice Anthony Kennedy’s new memoir, “Life, Law & Liberty,” Brian Fitzpatrick explored what he found surprising about the book, as well as what he struggled with. He called Kennedy’s explanation of how he decided cases “deeply unsatisfying,” in part because Kennedy didn’t reckon with how frustrating his process could be to his colleagues, including Fitzpatrick’s former boss, Justice Antonin Scalia. “In Kennedy’s view, if a judge is introspective enough … the right answer will magically appear before him. It’s not judicial activism; it’s judicial introspectionism,” Fitzpatrick wrote. But “unlike the other swing vote back then, Justice Sandra Day O’Connor, who tended to make up her mind and stick to it, the judicial introspectionist is always susceptible to changing his mind after a restless night of sleep.”

Just the facts?

In his latest Civil Rights and Wrongs column, Daniel Harawa highlighted recent cases in which the justices have clashed over the factual issues that gave rise to the dispute and not just the larger legal questions in front of them. This situation is troubling for a number of reasons, Harawa contended, including that it “feeds the growing perception that [the court’s] decisions are driven by ideology rather than law.” He continued, “The Supreme Court’s authority rests on its willingness to decide questions of law within the boundaries of the record before it. If those boundaries dissolve, so too does the distinction between deciding questions and deciding cases – and with it, the credibility of a court that insists it is guided by law, not agenda.”