A new survey shows that Americans are evenly split – 50% approve and 50% disapprove – over proposals to add justices to the Supreme Court, but broadly in favor (79%) of term limits. For more of the survey’s findings, see the Morning Reads section below.
At the Court
On Thursday, the court released its opinions in three cases: Federal Communications Commission v. AT&T, Sripetch v. Securities and Exchange Commission, and Hikma Pharmaceuticals v. Amarin Pharma.
- In FCC v. AT&T, the court held, 8-1, that it does not violate the Seventh Amendment’s right to a jury trial for the FCC to issue forfeiture orders without the involvement of a jury. Chief Justice John Roberts wrote the majority opinion, and Justice Clarence Thomas penned a solo dissent.
- In Sripetch, a unanimous court held that the SEC is not required to show that investors suffered a monetary loss in order to obtain a court order directing violators of securities laws to disgorge their gains to the wronged investors. Justice Neil Gorsuch delivered the opinion of the court, and Thomas wrote a concurring opinion.
- In Hikma, in a unanimous opinion written by Justice Ketanji Brown Jackson, the court held that Amarin, a drug maker, failed to state a claim for active infringement of its patent, so its complaint cannot withstand Hikma’s motion to dismiss.
After the opinion announcements, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from Thursday’s conference are expected on Monday at 9:30 a.m. EDT.
The court has indicated that it may announce opinions on Thursday, June 11, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.
Morning Reads
New Marquette Law School national survey finds 61% think Trump wins almost always or most of the time at the Supreme Court
Kevin Conway, Marquette Today
A new survey from the Marquette Law School Poll found that “61% of adults think the United States Supreme Court is ruling for President Donald Trump ‘almost always’ or ‘most of the time,’ while 39% say the Court is ruling for him ‘only some of the time’ or ‘almost never.’” Less than half of Republicans (45%) fall into the first group, compared to 79% of Democrats. The survey, which was conducted from May 20-26, also showed that “[a]pproval for the Supreme Court rose to 46% in May from 42% in April. This reverses a general downward trend since March 2025 when approval of the Court was 54%.”
US Judge Warns DOJ Appeal Could Upend Trump Tariff Refunds
Zoe Tillman, Bloomberg (paywalled)
On Wednesday, Judge Richard Eaton of the U.S. Court of International Trade “took the unusual step of personally responding” in a letter to the Justice Department “to the Trump administration’s appeal of his order to refund $166 billion in tariffs the Supreme Court declared unlawful, calling the government’s filings ‘colorful’ and questioning its legal stance,” according to Bloomberg. “Eaton suggested that if the Justice Department succeeded in asking an appeals court to immediately intervene, it” would “discourage continuing progress” in the development of “an online claims system that has been processing at least $85 billion in refunds so far.” Bloomberg noted that it is “rare for judges to directly push back against parties who appeal their rulings.”
Appeals court halts Customs chief’s testimony on tariff refunds
Zach Schonfeld, The Hill
On Thursday, the U.S. Court of Appeals for the Federal Circuit “agreed to halt an order requiring the head of U.S. Customs and Border Protection (CBP) to testify next week about tariff refunds … until it resolves the government’s arguments” against the appearance, according to The Hill. U.S. Court of International Trade Judge Richard Eaton had demanded that CBP Commissioner Rodney Scott testify on Tuesday about the government’s work on tariff refunds. “Commissioner Scott’s testimony is necessary to ascertain if it is the Government’s policy to return all of the unlawfully collected duties either by complying with the court’s order, or by some other means,” Eaton wrote last week.
The sweeping ways religion is mixing with public education
Laura Meckler and Lauren Lumpkin, The Washington Post (paywalled)
Recent Supreme Court rulings loosening restrictions on religious expression in schools and other public institutions have sparked a wave of new laws, “particularly in conservative states,” that challenge old assumptions about the role of religion in public schools, according to The Washington Post. Under these policies, “[p]ublic school classrooms are required to post the Ten Commandments, Bible verses are being injected into social studies curriculums and some school districts are required to allow students to leave campus midday to participate in Bible study.” “[S]tates are trying to figure out how far and fast they can go” in integrating religion into school life, said Michael A. Helfand, a law professor at Pepperdine Caruso School of Law, to the Post.
Idea of changing the number of Supreme Court justices is hardly new
Scott Bomboy, National Constitution Center
The debate about whether to expand the number of justices on the Supreme Court, which was taken up recently by Congress, has been ongoing in some form since “the very formation of the Constitution in 1787,” according to the National Constitution Center’s daily blog. “At the Constitutional Convention, the delegates decided to leave the details of how the judiciary system would be structured to Congress,” which, in 1789, established the Supreme Court with six justices. By 1863, the court had expanded to 10 justices to correspond with new federal circuit courts, but a new Judiciary Act in 1869 “put the number back to nine Justices.” The question of expanding the court has come up multiple times since then, but “the number of justices on the Court has remained stable.”
On Site
Opinion Analysis
Court rules against cell service providers over right to jury trial in FCC proceedings
The court on Thursday rejected a challenge by AT&T and Verizon to the constitutionality of the process that the Federal Communications Commission uses to impose sanctions for violations of federal telecommunications laws. By a vote of 8-1, with only Justice Clarence Thomas dissenting, the justices agreed with the FCC that the process – under which the agency can issue an order finding a company liable and instructing it to pay a penalty – does not violate the right to a jury trial guaranteed by the Seventh Amendment.
Contributor Corner
The Supreme Court’s long history of shaping race
In his Immigration Matters column, César Cuauhtémoc García Hernández highlighted a moment from the oral argument in Mullin v. Doe – a case about the Department of Homeland Security’s authority to terminate Temporary Protected Status for Haitian and Syrian nationals – during which Justice Samuel Alito “express[ed] his distaste for racial line-drawing.” According to Hernández, Alito failed to recognize that “the court has addressed racial categorization’s role in immigration law” in multiple past cases, including in decisions involving “who can acquire citizenship or be subjected to questioning about their right to live in the United States.”
A Closer Look
Justice John McLean
Justice John McLean spent more than three decades on the court and dissented in one of the Supreme Court’s most infamous cases – and we think he is very much in need of a closer look.
McLean was born in Morris County, New Jersey, in 1785 to Sophia Blackford and Fergus McClain, an immigrant from Northern Ireland who had fought under George Washington in the Revolutionary War. (That Irish lineage places him early on the list of Irish-American justices – comprising more than 20% of all individuals who have served on the court.) With formal education scarce (the family lived in the rural Ohio valley), a young McLean worked as a farmhand and spent his earnings hiring two Presbyterian ministers as private tutors, eventually apprenticing to a county court clerk and practicing law beginning in 1807. He also bought and ran the Western Star newspaper, a “pro-Jeffersonian weekly journal.”
A varied public career followed. McLean won a U.S. House seat in 1812 as a Republican, joined the Ohio Supreme Court in 1816, and then served President James Monroe as land office commissioner before becoming postmaster general in 1823, a position he kept during the next two administrations of Presidents John Quincy Adams and Andrew Jackson. Adams, who grew to distrust McLean for his “deep and treacherous duplicity,” still conceded he was the most efficient postmaster general the nation had ever had. When Jackson took office, he reportedly offered McLean two cabinet seats, which McLean declined before accepting an associate justiceship instead.
The Senate confirmed McLean on March 7, 1829, the day after his nomination, by voice vote. The transition was so abrupt that for a few days McLean may have held both jobs at once, postmaster general and Supreme Court justice. Although the court seat would be his for life, his political ambitions remained untempered. From 1832 through 1860, McLean’s name was floated for the presidency by a whole host of parties: Anti-Masons, Whigs, Free Soilers, Know-Nothings, Republicans, and, finally, the Constitutional Union Party. He came closest in 1856, finishing a distant second to John C. Frémont on the first Republican ballot. Perhaps no other figure pursued the office so persistently while sitting on the bench; Adams once said McLean “thinks of nothing but the Presidency by day and dreams of nothing else by night.”
As for McLean’s actual jurisprudence, this is a bit hard to parse (given his somewhat muddled writing), even though he wrote roughly 240 majority opinions (although estimates vary). A notable case was Wheaton v. Peters, one of the first copyright disputes, in which McClean held that post-publication copyright had to be established by statute and that the court’s own written opinions could not be copyrighted. He also rode circuit: in 1838 alone he traveled some 2,500 miles, more than all but two of his colleagues, and because his circuit hugged the Ohio River, McLean heard more fugitive slave cases than any other justice.
To his great credit, slavery was one issue where McLean stood apart. On a bench dominated by Southerners, he was its most consistently antislavery member — Sen. Thomas Hart Benton said that McLean was “abolitionist enough for any body outside of a mad house – & his wife is abolitionist enough for all those who ought to be in one” (whatever that means). At the same time, McLean was no radical, choosing to enforce the fugitive slave laws as a circuit justice because, in his view, his oath to the Constitution demanded it. (In at least one instance, McLean paid for enslaved people — among them a teenager named Lucinda and the Hawkins family —to bring them to Ohio and freedom.)
Perhaps McLean’s finest hour came in dissent. In the 1857 Dred Scott decision, he was one of only two justices to break with Chief Justice Roger Taney, arguing that a free Black person was a citizen entitled to sue and the idea that “a colored citizen would not be an agreeable member of society” was “more a matter of taste than of law.” Some scholars even credit his dissent with foreshadowing the 14th Amendment concerning who constitutes a naturalized citizen.
McLean died in Cincinnati in April 1861 — the last surviving member of both the Monroe and Adams cabinets. (He had served as a pallbearer at Adams’ funeral years earlier, despite the late president’s contempt for him.) McLean is certainly not a household name, even among Supreme Court aficionados. But, based on his dissent in Dred Scott alone, his reputation is perhaps overdue for a reevaluation.
SCOTUS Quote
CHIEF JUSTICE ROBERTS: “I would have thought that if you're arguing under the Necessary and Proper Clause, that you need an enumerated power that the Necessary and Proper Clause is going to serve. But I don't see how it makes a difference which enumerated power you're talking about.”
MS. FUENTES: “I think it all – I think it does turn on the nature of the power. I mean, could you use the military power to say you, Mr. Bank Fraud Client, cannot contract with the government any more?”
CHIEF JUSTICE ROBERTS: “I get to ask the questions. You don't.”
— United States v. Kebodeaux (2013)
