SCOTUStoday for Monday, November 10

“Sesame Street” debuted on this day in 1969. Justice Sonia Sotomayor has been on the program to settle a dispute between characters and talk about what it means to have a career.

A reminder: You can be part of what comes next at SCOTUSblog. We’re exploring how to better serve legal professionals who need reliable updates across the courts and hope you will consider taking a brief survey about the future of SCOTUSblog. Complete the survey and you’ll be entered to win a signed copy of Justice Amy Coney Barrett’s new book, Listening to the Law. (We’ll notify the winner by email once the survey period ends.)

And did you hear? You can now get CLE credit for listening to Advisory Opinions. Click here to learn more.

SCOTUS Quick Hits

• On Friday, the Trump administration asked the court to pause a district court ruling requiring the administration to fully fund the Supplemental Nutritional Assistance Program (SNAP) in November. Justice Ketanji Brown Jackson issued an administrative stay putting the ruling on hold.
• Also on Friday, the justices took part in a private conference and discussed cases and petitions for review. An order list outlining some of what was decided during that conference is expected today at 9:30 a.m. EST. The list may include a decision on whether to hear Davis v. Ermold, in which Kim Davis is challenging the court’s recognition of a constitutional right to same-sex marriage.
• The Supreme Court will hear argument today in two cases: Landor v. Louisiana Department of Corrections and Public Safety (on whether an individual may sue a government official in his individual capacity for money damages under the Religious Land Use and Institutionalized Persons Act) and The GEO Group, Inc. v. Menocal (on whether a government contractor that’s been denied immunity by a district court can appeal immediately instead of waiting for the end of proceedings in the trial court).
• Additional briefs in Trump v. Illinois, on President Donald Trump’s authority to federalize and deploy the National Guard in Illinois, are due today.
• Today is also the due date for the response brief in Blanche v. Perlmutter, on whether the Supreme Court should pause an order that temporarily reinstated the top U.S. copyright official after her firing earlier this year.

Morning Reads

• Supreme Court’s SNAP reversal leaves states in a lurch (Andrew Childers, Axios) — Justice Ketanji Brown Jackson’s late-night grant on Friday of an administrative stay in the SNAP payments case fueled confusion among state leaders, according to Axios. “Some states, including Michigan, had begun processing the payments before the Supreme Court stepped in. That means some recipients will receive some assistance while others will not.” New York Gov. Kathy Hochul, California Gov. Gavin Newsom, and others released statements criticizing the Trump administration’s decision to seek Supreme Court relief. (On Sunday, after the Axios article was published, the Trump administration announced that states “must immediately undo any steps taken to issue full SNAP benefits for November 2025.”)
• A Timeline of the Legal Saga Surrounding SNAP Payments (Isabela Espadas Barros Leal and Tony Romm, The New York Times)(Paywall) — Even before the Supreme Court got involved in the dispute over November SNAP payments, the case was a “dizzying legal battle,” according to The New York Times. “[S]tates have struggled to interpret a series of conflicting rulings and changing developments, which by Saturday appeared to further disrupt food stamp benefits for some of the roughly one in eight Americans who receive them.” The Times put together a timeline of key developments in the case.
• Judge rules Trump administration failed to meet legal requirements for deploying troops to Portland (Claire Rush and Gene Johnson, Associated Press) — U.S. District Judge Karin Immergut “ruled Friday that President Donald Trump’s administration failed to meet the legal requirements for deploying the National Guard to Portland,” according to the Associated Press. The ruling comes after a three-day trial on the conditions in Portland and previous temporary orders from Immergut that put Trump’s planned deployment on hold. The U.S. Court of Appeals for the 9th Circuit already agreed to weigh in on those orders, and the “trial Immergut held further developed the factual record in the case, which could serve as the basis for further appellate rulings.” The Portland dispute is playing out as the Supreme Court considers whether to allow Trump to deploy the National Guard to Chicago.
• Conservatives under siege? Supreme Court’s Barrett and Kavanaugh give advice to students (Maureen Groppe, USA Today) — Justices Amy Coney Barrett and Brett Kavanaugh spoke at the Federalist Society’s annual black tie gala on Thursday about political violence, being conservative, and meeting criticism with grace, according to USA Today. “In truth, being a conservative woman, in a law school particularly, takes a lot of courage and independence and in many ways shows more feminism than just falling into some predetermined vision of what a woman should be,” Barrett said. Kavanaugh noted that “if you don’t want to get criticized,” being a Supreme Court justice “is not a good gig.”
• Google proposes app store reforms in settlement with ‘Fortnite’ maker Epic Games (Mike Scarcella, Reuters) — About a month after the Supreme Court declined to intervene in a dispute between Google and Epic Games over Google Play app store rules for game developers, the two companies have “reached a comprehensive U.S. court settlement,” according to Reuters. “Under the new proposal, Google would allow users to more easily download and install third-party app stores that meet new security and safety standards. Developers will also be allowed to direct users to alternative payment methods both within apps and via external web links.” The proposed settlement still needs to be approved by a U.S. district judge.

A Closer Look: Religious Land Use and Institutionalized Persons Act

The justices will consider one of the country’s landmark religious freedom laws today when they hear oral argument in Landor v. Louisiana Department of Corrections and Public Safety. The case asks whether a Rastafarian inmate who had his head forcibly shaved by prison officials can sue the officials in their individual capacities for money damages under the Religious Land Use and Institutionalized Persons Act.

The act, which is often awkwardly referred to as RLUIPA (ruh-loop-uh), was signed into law in 2000 as part of a decade-long push in Congress to expand religious freedom protections. The effort began in 1990, when the Supreme Court in Employment Division v. Smith made it harder for religious groups and individuals to force changes to faith-related laws through legal action. In that case, the court considered whether government officials had violated the First Amendment’s free exercise clause when they denied unemployment benefits to two Native American men who lost their jobs at a drug rehabilitation center after using peyote in a religious ceremony. The court held the denial was constitutional because the law prohibiting peyote use was neutral and generally applicable; in other words, there was a supposed rational basis for the law and the law hadn’t intentionally singled out a particular religious group for disfavored treatment. In so holding, the court scrapped the “compelling interest test” that previously had been used in free exercise lawsuits to balance government interests with religious ones, which demanded the state show that a law served a significant goal, such as promoting public safety, combatting discrimination, or protecting public health.

Congress restored the compelling interest test in 1993 when it passed the Religious Freedom Restoration Act. Under the act, neutral, generally applicable laws can be found to violate federal religious freedom protections if a court determines that they substantially interfere with an individual’s or group’s religious practices and do not serve a compelling governmental interest. The government also has to show that it could not offer a faith-based exemption to the law without undermining that interest.  

But in 1997, in City of Boerne v. Flores, the Supreme Court held that Congress did not have the authority to restrict the actions of state or local governments with the Religious Freedom Restoration Act. In response to that ruling, Congress worked to pass a separate law that would have expanded religious freedom protections by making any federally funded program or activity subject to the compelling interest test, as I previously wrote about in the Deseret News. After extensive debate, Congress ultimately settled on RLUIPA, which only applies to zoning and prison policies – two areas of law that regularly fueled religious freedom disputes.

The Religious Land Use and Institutionalized Persons Act enables religious institutions to challenge zoning laws that they believe are discriminatory, and for prisoners to challenge policies that interfere with their religious exercise. It lays out the same balancing test that’s in RFRA, meaning that people of faith can win an exemption to a neutral, generally applicable law if the government fails to show that offering that exemption would undermine the purpose of the law. And it applies to any “program or activity that receives Federal financial assistance.”

RLUIPA previously was at the center of Supreme Court cases on a death row inmate’s right to have a pastor audibly pray for and touch him as he is being executed and a Muslim inmate’s right to maintain a short beard for religious reasons. In the capital case, the court sided with the inmate, holding that the prison officials had not shown that restrictions on audible prayers and physical touch were necessary to protect the state’s interest in safely carrying out the execution. Similarly, in the beard case, the court unanimously held that the prison had failed to show that enforcing its beard ban against the Muslim inmate was necessary in order to keep the prison safe and secure.

SCOTUS Quote

“‘The operation was a success, but the patient died.’ What such a procedure is to medicine, the Court’s opinion in this case is to law.”

— Justice Antonin Scalia in National Endowment for the Arts v. Finley

On Site

From Amy Howe

Court Temporarily Pauses Ruling on November SNAP Payments

The Trump administration on Friday night asked the Supreme Court to pause a ruling by a federal judge in Rhode Island that requires the government to pay $4 billion to fully fund the federal food-stamp program for November. According to U.S. Solicitor General D. John Sauer, the “unprecedented” order by U.S. District Judge John J. McConnell, Jr. “makes a mockery of the separation of powers.” In an order released to reporters at 9:17 p.m. EST on Friday night, Justice Ketanji Brown Jackson issued the administrative stay that the government had requested, giving the court of appeals time to weigh in on the Trump administration’s motion for a stay pending appeal. Read Amy’s analysis to learn more.

Case Previews

Amy Howe on Landor v. Louisiana Department of Corrections and Public Safety

On Monday, the Supreme Court will hear oral arguments in the case of Damon Landor. Landor is a Louisiana man who grew long dreadlocks for religious reasons. In 2020, prison officials forcibly shaved his head even after he showed them a copy of a federal appeals court ruling affirming his right to keep the dreadlocks. The justices will now decide whether Landor can try to recover money damages from those officials. For more on the case, read Amy’s argument preview.

Ronald Mann on The GEO Group, Inc. v. Menocal

The court will return to questions about government contractors in The GEO Group, Inc. v. Menocal, to be argued on Monday. “The issue in GEO is whether a contractor facing a district court order that refuses to give the contractor immunity can appeal immediately instead of waiting for the end of proceedings in the trial court,” wrote Ronald Mann in his case preview.

Contributor Corner

Verbs, Verbs, Verbs

In her latest Clear Statements column, Abbe R. Gluck reflected on the court’s oral arguments on tariffs, noting that the justices had much more to say about verbs like “regulate” than the limits of executive authority. “The court’s apparent decision to narrow such a significant dispute over presidential authority to a question of close linguistic analysis does a lot more than reveal the comfort that nearly all of the justices now have with the court’s textualist methodology (and it does show that): it also illustrates how a focused textual analysis offers the court a safer, more detached, off-ramp in a politics-infused case than broad pronouncements on presidential power,” Gluck wrote.

No Executive Taxation Without Clear Legislative Authorization

In their latest Brothers in Law column, Akhil and Vikram Amar described how, “[f]or over 400 years, taxation has raised unique and grave concerns in the Anglo-American constitutional tradition.” “Reading a bland law that nowhere uses the words revenue or taxes to empower President Trump – or any other president – to rewrite the tax code unilaterally risks creating a dictatorship broadly reminiscent of England’s Charles I in the early 1600s and continental Europe’s authoritarians in the early 1900s,” they wrote.