SCOTUStoday for Friday, December 12

As we regularly note, we read a lot of legal news as we prepare this newsletter. Here’s the most memorable headline we saw this week: No Religious Discrimination Shown in Enforcement of Septic Tank Code.

And in case you missed it yesterday, we’ve launched the Interim Docket Blog, which will feature analysis of developments on that docket from Jack Goldsmith, William Baude, and Daniel Epps.

Week in Review

The court is done hearing arguments for the month. Here are the links to SCOTUSblog’s coverage of the four cases that were heard this week.

SCOTUS Quick Hits

• As noted above, the court’s December sitting has ended. The court will next hear argument on Monday, Jan. 12.
• Today, the justices will gather for their final regularly scheduled private conference of 2025 to discuss cases and vote on petitions for review. They may announce cases that have been granted this afternoon.
• On Monday, the court is expected to release an order list at 9:30 a.m. EST.
• The court could issue its decision in the interim docket case on President Donald Trump’s effort to deploy the National Guard to Illinois at any time.

Morning Reads

• Judge Orders Abrego Garcia Freed from Immigration Detention (Louise Radnofsky and Mariah Timms, The Wall Street Journal)(Paywall) — In April, the Supreme Court considered an interim docket case involving Kilmar Armando Abrego Garcia and directed the Trump administration to facilitate his return to the U.S. from El Salvador after he was deported there by mistake. On Thursday, U.S. District Judge Paula Xinis cited a different Supreme Court ruling when she ordered Abrego Garcia’s release from immigration custody in Pennsylvania, according to The Wall Street Journal. “Xinis cited a 2001 Supreme Court decision that immigrants can’t be indefinitely detained unless there are plans to imminently deport them,” noting that the government has not produced a final order of removal for Abrego Garcia and that it has “persistent[ly] refus[ed] to acknowledge Costa Rica as a viable removal option” even though Abrego Garcia has said he is willing to be sent there.
• US can replicate revenues if Supreme Court rules against IEEPA tariffs, trade chief says (Andrea Shalal, Reuters) — U.S. Trade Representative Jamieson Greer on Wednesday addressed what’s next for the Trump administration’s trade policy if the Supreme Court strikes down a significant portion of the current tariffs. Greer contended that the administration “can produce the revenues we need” using other laws allowing for the president to impose tariffs and suggested that “it would make sense for Congress to legislate new rules for U.S. trade in the longer term,” according to Reuters. “Asked about how long companies would have to wait to receive refunds, if the tariffs were invalidated by the Supreme Court, Greer said that would be up to Treasury and Customs and Border Protection, adding that he met the CBP director on Tuesday, but was uncertain of the timeline.”
• A new public school in Colorado has a ‘Christian foundation.’ Can it last? (Lauren Lumpkin, The Washington Post)(Paywall) — Yet another conflict over a religious school participating in the public school system is brewing, this time in Colorado. Riverstone Academy, an elementary school with a “Christian foundation” that was approved to contract with the public school system in Pueblo, Colorado, is now facing pushback from state officials, according to The Washington Post. “The tension ramping up over Riverstone comes after the Supreme Court deadlocked in May, blocking the creation in Oklahoma of a charter school that would have been a taxpayer-funded public Catholic school.”
• “When I argued cases in the Supreme Court…” (Lorin Granger, Harvard Law Today) — Prominent Supreme Court advocate Laurence Tribe recently donated his “argument boards,” the posters he’d use to prepare for oral argument, to Harvard Law School’s Special Collections, according to Harvard Law Today. The colorful boards were “a kind of flow diagram — red, blue, black, yellow highlighting — of what I anticipated the exchange would be,” Tribe said.
• A Judicial Solution for Presidential Overreach and Congressional Abdication (Damon Root, Reason) — In a column for Reason, Damon Root called on the Supreme Court to “do its job” and prevent Congress from “voluntarily surrender[ing] some of its powers to the president” when it rules on presidential removal power and tariffs this term. Although the current cases focus on the president’s actions, they’re also about congressional inaction, Root argued, and the court needs to address Congress’ “abdication” of its responsibilities.

A Closer Look: The Rather Memorable Chief Justice Ellsworth

This is the fourth in our series covering some of the court’s most notable justices.

We’ve covered the first chief justice (John Jay) along with the second, shortest-serving one (John Rutledge). The third chief justice, Oliver Ellsworth, was also nominated by President George Washington (Washington remains the president to have appointed the most chief justices). And while his name may not hold the same recognition as John Marshall’s, Ellsworth – as the principal author of the Federal Judiciary Act of 1789 – had enormous influence on the nascent country’s judicial system.

Born in Connecticut in 1745, Ellsworth was the son of a “well-connected” family and attended both Yale and Princeton. There, Ellsworth studied theology and helped found the American Whig-Cliosophic Society – a debate club he started with (among others) Aaron Burr. After graduating and spending some time reading law, Ellsworth was admitted to the bar in 1771. 

As with his predecessors, Ellsworth was deeply involved in the push for American independence. He served in the Continental Congress during the Revolutionary War, sitting on the Marine Committee and the Committee of Appeals. But his most famous political contribution came during the Constitutional Convention of 1787 – when the convention could not agree on how states should be represented in the new government, Ellsworth helped engineer the “Great Compromise” (also known as the Connecticut Compromise). As some likely remember from their American history classes, the deal established a bicameral legislature: a House with proportional representation (good for large states) and a Senate with two members per state (good for small states).

Before he was a judge, Ellsworth was elected as one of Connecticut’s first two senators in 1789; in the Senate, he functioned much like a modern Senate Majority Leader. While in that role, Ellsworth wrote the Judiciary Act of 1789 – which established the structure and jurisdiction of the federal court system and created the position of attorney general. 

In March 1796, Washington nominated Ellsworth to be the chief justice. He was confirmed the next day. Ellsworth favored issuing per curiam opinions rather than the court’s practice of “seriatim” ones, where each justice wrote their own separate opinion. Like his predecessors, Ellsworth was also responsible for “circuit riding,” traveling the Eastern and Southern Circuits to hear cases. 

In 1799, President John Adams sent Ellsworth, while he was chief justice, to France as a diplomat to negotiate with Napoleon an end to the “Quasi-War,” an undeclared naval conflict between that country and the United States. He did so successfully. But while abroad, Ellsworth fell ill. Citing his poor health, he resigned from the Supreme Court in December 1800 while still abroad.

Ellsworth died in 1807 at the age of 62. While his time as chief justice was brief, John Adams may have summed it up best, calling Ellsworth “the firmest pillar” of the federal government in its initial years.

SCOTUS Quote

JUSTICE GORSUCH: “A few questions there where I don’t think you got to finish your answer. Here’s your shot.”

MR. GRAVER: “I would be pretending if I remember what any of those questions were.”

— Hamm v. Smith

Also, a correction: In Wednesday’s SCOTUS Quote, we attributed a statement to Justice Neil Gorsuch during the Trump v. Slaughter argument that was actually made by Justice Brett Kavanaugh. This was based on the Supreme Court’s transcript, which has since been corrected (better late than never!). We’ll keep this quote in mind if we write about the funniest justices again in the future.

On Site

From Amy Howe

Immigration Judges Urge Justices to Leave in Place Lower Court Ruling Against Trump Administration

A group of immigration judges on Wednesday afternoon urged the Supreme Court to leave in place a ruling by a federal appeals court that sent a dispute over a policy limiting their speaking engagements back to a federal trial court. The National Association of Immigration Judges told the justices that there was no need for them to step in because the U.S. Court of Appeals for the 4th Circuit had merely directed a federal district court in Alexandria, Virginia, “to conduct fact-finding that may inform its resolution” of the group’s challenge. For more on the case, read Amy’s analysis.

Contributor Corner

Introducing the Interim Docket Blog

In the first post for the Interim Docket Blog, Jack Goldsmith explained the growing significance of the court’s interim docket and why he prefers the term “interim orders” over “emergency orders.” He noted that one goal of the blog will be “to make interim orders more accessible and to situate them in the larger context of the court’s work.”

Argument Analysis

Justices Seem Receptive of Private Suits Against Investment Companies

Thursday’s argument in FS Credit Opportunities Corp. v Saba Capital Master Fund showed a bench surprisingly receptive of private parties having the ability to sue investment companies under the Investment Company Act of 1940, according to Ronald Mann’s argument analysis. Although the justices have been skeptical of implied rights of action in recent decades, most of them seemed to think that the statute went far enough to authorize the limited relief sought in the case before them, namely the right to invalidate a contract inconsistent with the statute.