SCOTUStoday for Friday, January 16

As we’ve observed before, we read a lot of legal news as we prepare this newsletter. This headline got our attention this week: Supreme Court Keeps Novel-Writing Bankruptcy Judge on Fund Manager’s Case.

And a programming note: We will not be sending SCOTUStoday on Monday because of the holiday. We will be back in your inboxes on Tuesday, Jan. 20.

Last but not least, we’re hiring! We’re looking for an editor to oversee a new daily newsletter for corporate counsel and commercial litigators that highlights circuit court decisions, relists, denials, en banc grants, notable dissents, and other procedural moves.

Week in Review

The court heard four arguments this week, during the first half of the January sitting. Here are the links to SCOTUSblog’s coverage.

And on Wednesday, the court released opinions in three argued cases: Bost v. Illinois State Board of Elections, Case v. Montana, and Barrett v. United States.

• In Bost, the court held that, as a candidate for office, Congressman Michael Bost has standing to challenge Illinois’ rules for counting mail-in ballots received after Election Day. Evan Lee analyzed the opinion.
• In Case, the court held that police officers in Montana did not violate the Fourth Amendment when they entered a home without a warrant and without “probable cause” because they reasonably believed that someone in the house needed emergency assistance. Amy analyzed the opinion.
• In Barrett, the court held that defendants who violate two separate provisions of the Armed Career Criminal Act cannot be convicted under both for the same crime. We will have an opinion analysis by Richard Cooke.

SCOTUS Quick Hits

• Today, the justices will take part in a private conference to discuss cases and vote on petitions for review. We may know as soon as this afternoon if the court has added any new cases to the oral argument docket.
• On Tuesday, the court is expected to release an order list at 9:30 a.m. EST with, among other things, denied petitions.
• On Wednesday, Jan. 21, we will be live blogging as the court hears oral argument in Trump v. Cook, on President Donald Trump’s effort to remove Lisa Cook as a member of the Federal Reserve Board of Governors.

Morning Reads

• Federal Judges Uphold California’s New Congressional Maps (Laurel Rosenhall, The New York Times)(Paywall) — In a decision released on Wednesday, a federal court “rejected Republicans’ claim that California’s new congressional maps were unconstitutional, upholding a voter-approved plan intended to benefit Democrats in this year’s midterm elections,” according to The New York Times. “Two judges in a three-judge panel in Los Angeles sided with Gov. Gavin Newsom and fellow Democrats in Congress, who argued that the maps were drawn purely to give their party an advantage. … The ruling shot down arguments by the California Republican Party and the Trump administration that the maps … amounted to a racial gerrymander that focused on favoring Latinos over other groups of voters.” The California Republican Party announced on Wednesday “that it would appeal the ruling and ask the U.S. Supreme Court to decide the matter.”
• Federal judge scorches Dems for pandering to Latinos with California map in fiery dissent (Louis Casiano, Fox News) — As part of its coverage of the ruling on California’s new congressional map, Fox News highlighted the dissent from Judge Kenneth Lee, who concluded that California had “engaged in ‘racial gerrymandering.’” “In embarking on a mid-decade redistricting plan to create more Democratic-friendly districts, California relied on race to create at least one Latino-majority congressional district,” Lee wrote. “To be clear, as the majority explains, California began its mid-cycle redistricting attempt after Texas initiated its own redistricting in favor of Republicans. But that larger partisan goal does not negate that California’s Democratic state legislature sought to maintain and expand a racial spoils system.” California GOP Chairwoman Corrin Rankin praised Lee’s dissent in a statement announcing the plan to appeal to the Supreme Court.
• E. Jean Carroll asks Supreme Court to reject Trump’s request to review her $5M defamation case (Aaron Katersky, ABC News) — In a new filing, writer E. Jean Carroll urged the Supreme Court “to reject President Donald Trump’s petition seeking the court’s review of her successful $5 million defamation case against him,” according to ABC News. “Trump was found liable in 2023 of sexually abusing Carroll, a former Elle magazine writer, in a department store dressing room in the 1990s and then defaming her when he denied it.” Trump has asked the Supreme Court to address whether the trial judge misapplied federal rules of evidence.
• Should America’s police ever be criminally liable for failing to stop crimes? (The Economist)(Paywall) — In a “highly unusual” trial that began this month in Texas, prosecutors are attempting to hold one of the first police officers to arrive at the scene of the May 2022 school shooting in Uvalde, Texas, liable for not doing more to stop the shooter. “He is charged with 29 counts of child endangerment—a crime of omission,” according to The Economist. Finding liability under such circumstances is difficult, in part because of past Supreme Court cases. “In the late 1980s the Supreme Court ruled in Deshaney v Winnebago County that a state agency that failed to prevent child abuse could not be held liable in civil court. In 2005 the high court ruled in Town of Castle Rock v Gonzales that a local police force has no constitutional duty to protect private citizens from harms it does not create.”
• 7 Predictions For The Legal World in 2026 (David Lat, Original Jurisdiction) — In a post for his Substack, David Lat offered seven law-related predictions for the year ahead, including several about the Supreme Court. For example, he predicted that “[t]he Court will start ruling against the Trump administration more—on its merits docket” and that “[n]o justices will retire in 2026.”

A Closer Look: Two Oaths

After a new Supreme Court justice is nominated by the president and confirmed by the Senate, that person takes two oaths: the constitutional oath and the judicial oath. This practice goes back more than 200 years, but it has changed over time in some fascinating ways.

The first oath that a newly appointed justice takes is the constitutional oath, where the justice essentially swears to defend the Constitution. As provided in Article VI, all federal employees are required to take this oath. For many years, a private ceremony was held in the court’s consultation room at the Capitol where this oath was administered by the chief justice or senior associate justice. This changed when President Franklin Roosevelt invited Frank Murphy to take the constitutional oath at the White House in 1940, as well as Justices James Byrnes and Robert Jackson. By the 1950s, the administration of oaths resumed at the Supreme Court Building, until President Ronald Reagan returned to the practice of hosting the constitutional oath ceremony (which has since shifted between being done by the president or a court member).

The second oath that a justice must take is known as the judicial oath, which is required by the Judiciary Act of 1789. Once the new justice takes the constitutional oath, the justices typically proceed into the courtroom. The clerk of the Supreme Court then reads the commission aloud and administers the judicial oath, in which the justice swears that he or she will “administer justice” and “faithfully and impartially discharge” his or her duties. Once both oaths have been administered and taken, things are official.  

In 1986, Chief Justice Warren Burger (who was retiring) administered the constitutional oaths to William Rehnquist and Antonin Scalia. Back at the Supreme Court Building later that day, Burger administered the judicial oath to Rehnquist. Rehnquist – in his first act as chief – then administered the judicial oath to Scalia, who became the only justice to have taken the oaths from two chief justices on the same day. (Perhaps not the most exciting “first,” but still pretty cool.)

When Burger led the court, he also began a tradition (Burger loved traditions) of holding special sittings to receive newly appointed justices. This ceremony, known as the investiture, consists of the chief justice administering the constitutional oath to the new justice in the justices’ conference room, followed by the chief justice administering the judicial oath in the courtroom. Burger also began the tradition of having the new justice sit in the John Marshall Bench Chair (which was the chair that Chief Justice Marshall used from 1819 to 1835) before taking the judicial oath. Every justice has now sat in that chair before taking their oaths since Lewis Powell and Rehnquist in 1972 – and it does look pretty comfy.

SCOTUS Quote

“For a period, to be sure, the miasma created by this Court’s Katz era led some to think the scope of the rights guaranteed by the Fourth Amendment depend on nothing more than current judicial instincts about ‘reasonable expectations of privacy.’ … But that confusion cannot last forever, for no one should think the rights of Americans hang on so thin a thread.”

— Justice Neil Gorsuch, Case v. Montana

On Site

Case Preview

Court to hear oral argument on law banning guns on private property

On Tuesday, in Wolford v. Lopez, the Supreme Court will hear oral argument in the latest chapter over the scope of the Second Amendment: a challenge to a Hawaii law that bans gun owners from bringing their guns onto private property that is open to the public without specific permission from the property’s owner.

Opinion Analysis

Relist Watch

Contributor Corner

Whither Bostock?

In his latest Courtly Observations column, Erwin Chemerinsky revisited Bostock v. Clayton County, Georgia, a landing ruling from 2020 protecting gay, lesbian, and transgender individuals from employment discrimination. Over the last year, he argued, the court has failed to follow the logic of Bostock in cases on transgender rights.

Interim Docket Blog

Why Stop at Level Three?

In a new post for SCOTUSblog’s Interim Docket Blog, William Baude offered further thoughts on Trump v. Illinois, the dispute over President Donald Trump’s effort to deploy the National Guard in Chicago. He reflected on the many different levels of analysis the court can choose between as it fields applications for interim relief.