SCOTUStoday for Thursday, December 18

On this day in 1944, the Supreme Court issued its decision in Korematsu v. United States, holding that the president and Congress did not exceed their war-time powers when they forced certain Americans of Japanese descent to move to relocation camps during World War II. The Supreme Court has not formally overturned that decision, but Chief Justice John Roberts condemned it in a 2018 opinion. “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution,’” he wrote.

SCOTUS Quick Hits

• The court could issue decisions in the interim docket cases on President Donald Trump’s effort to deploy the National Guard to Illinois and a dispute between the Trump administration and immigration judges at any time.

Morning Reads

• National Guard can stay in DC during legal battle, DC appeals court rules (Gary Grumbach, NBC4 Washington) — The Court of Appeals for the District of Columbia Circuit ruled on Wednesday morning that the more than 2,200 National Guard troops stationed in D.C. can remain deployed there while the Supreme Court decides on Trump v. Illinois, in which the court is considering whether Trump legally deployed the National Guard to Chicago. The unanimous three-judge panel “cited the fact that D.C. is not a state and has limited rights against federal action in their decision to pause Cobb’s order until the legal battle plays out fully,” according to NBC4 Washington.
• DOJ sues Virgin Islands over restrictive firearm laws (Megan Butler, Courthouse News Service) — The Justice Department on Tuesday filed a lawsuit “against the Virgin Islands and its police department, claiming it is violating the Second Amendment by taking too long to process gun permit applications,” according to Courthouse News Service. The DOJ highlighted some of the requirements that have led to the long processing times, such as character assessments, and contended “that the Supreme Court has declared similar requirements as unconstitutional.”
• At Many Top Law Schools, Black Student Enrollment Continues to Drop (Stephanie Saul, The New York Times)(Paywall) — Two years after the Supreme Court severely limited the use of affirmative action in college admissions, Black student enrollment at “many of the nation’s most elite law schools” is declining, according to The New York Times. “The New York Times examined the A.B.A. admissions data from 18 of the nation’s top law schools and found that first-year Black enrollment had increased at only four, including at Harvard, which enrolled 50 Black law students this fall compared with 19 last year.” However, the data also “showed that the percent of Black students entering the nation’s 196 law schools, overall, held fairly steady at 7.6 percent compared with 7.7 percent a year ago.”
• Supreme Court Justice Amy Coney Barrett returns to Notre Dame Law for a wide-ranging fireside conversation with students (Annika Johnson, Notre Dame Law School) — Justice Amy Coney Barrett returned to Notre Dame Law School for a Q&A last month where she spoke on “mentorship, vocation, collegiality, and the craft of judging.” Barrett “emphasized that Article III relies on a baseline confidence in judges and pointed to cases where judges have reached results they personally disagreed with.” She also compared the Supreme Court to an “arranged marriage”: “We don’t pick our colleagues, but we’re going to be colleagues for a very, very long time.”
• Unprecedented errors are eroding the credibility of Trump’s Justice Department (Sarah N. Lynch, Reuters) — Over the past eight weeks, the dismissal rate of criminal complaints in D.C. has risen to 21%, compared to 0.5% over the past decade. The errors “[a]t times … came about after senior officials made public statements about pending cases on social media or television that strayed from the allegations made in sworn court filings, violating department rules designed to ensure a fair trial,” according to Reuters. A Justice Department spokesperson said the DOJ “is winning in court … with 24 successful rulings at the Supreme Court emergency docket so far and multiple prominent indictments.”

A Closer Look: Completing the Docket for the Current Term

The clock is ticking for the Supreme Court. By this time next month, the justices are expected to be done, or at least nearly done, filling out the oral argument/merits docket for the current term, meaning they’ll likely take up around 10 more cases by then. (They’ve already heard or announced they will hear argument in 54 cases, several of which are consolidated.)

The mid-January deadline stems from the court’s briefing schedule. Under the standard schedule, the petitioners – the litigants asking the justices to weigh in – have up to 45 days after the Supreme Court grants review in their case to file a brief on the merits. After that brief is filed, the respondents – the litigants who prevailed in the lower court – have up to 30 days to file their own brief on the merits. If the petitioners want to file a reply brief (which virtually all of them do at the merits stage), they must do so within 30 days after the respondents’ brief is filed, although the brief must be submitted at least 10 days before oral argument. To put it simply, a case needs to be granted by mid-January for the briefing to be done before the court’s final argument session in April (unless the case is fast-tracked – more on that later).

Last term, the final cases to be taken up without a noted change to the briefing schedule were granted on Jan. 17. The petitioners’ briefs were filed in late February or early March (in all but one case in which an extension was requested and granted); the respondents’ briefs in late March or early April; and the reply briefs in mid-April, just before the start of the April argument session.

The court can, however, adjust the briefing schedule if it wants to add cases to the current term after mid-January. That’s exactly what the justices did last term, when they granted review in late January in four cases (two of which were consolidated) that would be argued at the end of the April sitting. Those cases followed an expedited briefing schedule, which the court laid out in the orders granting cert on Jan. 24 and Jan. 27. For example, in Oklahoma Statewide Charter School Board v. Drummond, a case on an effort to create a religious charter school in Oklahoma that was heard on the last day of the April argument session, the court instructed the petitioners to file their brief on the merits on March 5, which was 40 days after Jan. 24, rather than 45.

And if you need another reminder that the mid-January deadline is not a hard one, look no further than Trump v. CASA. That case from last term, on lower courts’ authority to put President Donald Trump’s executive order on birthright citizenship on hold nationwide, arrived on the court’s interim docket in mid-March. On April 17, the court announced that it would hear oral argument in the case on May 15 – a month in which the justices normally do not hear arguments at all. The tight turnaround was possible in part because the court did not ask for additional briefing.

Even keeping in mind the possibility that the court can fast-track a case, it’s safe to say that we should have a near-complete picture of the 2025-26 oral argument/merits docket by this time next month.

SCOTUS Quote

JUSTICE BREYER: “Why? I mean, it sounds — really what the argument boils down to is — is if we accept your position, there’s a kind of procedural complexity and anomaly. And your argument is that his position’s worse. And, yours is also fairly bad.”

— Justice Stephen Breyer in Elgin v. Dept. of Treasury

On Site

Contributor Corner

Which Supreme Court cases are actually important?

In a column for SCOTUSblog, Eric McKee reflected on whether it’s possible to use the number of amicus curiae, or “friend of the court,” briefs field in a case to determine whether the case is one of the most important of the term. “When we use this metric, I think we get some interesting insights into Supreme Court decision making,” he wrote.

Party Presentation: A Mysterious New Rule?

In his latest SCOTUSCrim column, Rory Little revisited the court’s per curiam opinion in Clark v. Sweeney, which reversed a grant of habeas corpus relief by the U.S. Court of Appeals for the 4th Circuit “because the Court of Appeals departed dramatically from the principle of party presentation.” Little described the Supreme Court’s failure to explain the source of this “principle” as “disturbing.”