SCOTUStoday for Thursday, October 30

You’ve likely heard of AI-driven mistakes in legal filings, but what about AI juries? Law professor Joseph Kennedy organized a test of the capabilities of AI jurors last week at the University of North Carolina School of Law, and participants had mixed feelings about the results, according to Reuters. “It felt as though the AI jury was debating something casual — whether or not to order coffee or tea, rather than deciding whether a person deserves to lose his liberty,” said professor Eisha Jain.

SCOTUS Quick Hits

• The Supreme Court on Wednesday asked the litigants in the challenge to President Donald Trump’s effort to deploy the National Guard to Illinois to file supplemental briefs addressing the interpretation of the law on which Trump relied in his Oct. 4 memorandum calling up the National Guard. The new briefs, the court said, should be no more than 15 pages long and should be filed by Nov. 10, with 10-page reply briefs to follow a week later.
• We’re less than one week away from the start of the court’s November sitting. Yesterday, we previewed Rico v. United States and Hencely v. Fluor Corporation. We’ll be publishing additional case previews today.
• Mark your calendars: Next Wednesday, SCOTUSblog will host a live blog during oral arguments on President Donald Trump’s tariffs. Amy Howe will be interviewed on C-SPAN before the arguments, the live blog will be hosted on that network, and Zachary Shemtob will be interviewed on C-SPAN after the arguments have ended.
• Former Justice Anthony Kennedy is scheduled to speak today at Stanford Law School on his new memoir. The event is in-person only, but walk-ins are welcome, according to the event announcement.

Morning Reads

• William Rehnquist, his clerk John Roberts and the Supreme Court precedent at the center of Trump’s tariffs case (Joan Biskupic, CNN) — Ahead of next week’s oral arguments on tariffs, CNN’s Joan Biskupic took readers behind the scenes of an interesting, related case: Dames & Moore v. Regan. In it, the court considered the president’s authority under the International Emergency Economic Powers Act (the same policy that’s at issue in the tariffs dispute) to use frozen Iranian assets to resolve the Iranian hostage crisis. Chief Justice John Roberts, then a clerk for Justice William Rehnquist, helped write the court’s decision in favor of the president. The justices are expected to revisit Dames & Moore as they weigh whether IEEPA authorizes President Donald Trump’s tariffs.
• Louisiana Republicans move election dates with hopes of redistricting for 2026 midterms (Greg LaRose, Louisiana Illuminator) — Four days after the Louisiana Senate approved a plan to push back some of the state’s 2026 election dates, the full Louisiana Legislature on Wednesday “gave final approval,” according to the Louisiana Illuminator. Legislators were working to give themselves as much time as possible to redraw the state’s congressional map if the Supreme Court offers new guidance on race-based redistricting when it rules on Louisiana v. Callais. “Their calendar adjustment banks on the U.S. Supreme bucking its pattern of issuing decisions in the spring and instead making a ruling in a key redistricting case before Christmas.”
• Catholic statues thrust a Massachusetts city into a national religious liberty debate (BrieAnna J. Frank and Peter Blandino, USA Today) — A dispute over Catholic statues in Massachusetts is putting a spotlight on the Supreme Court’s past rulings on “religious symbols on public property,” according to USA Today. “The U.S. Supreme Court allowed a massive Latin cross, referred to as the Bladensburg Cross, to remain on government property in Maryland in a 7-2 ruling in 2019. It was erected as a World War I memorial nearly a century before, and the court said the symbol of the Christian cross ‘took on an added secular meaning’ when used in such ways.” In Quincy, Massachusetts, the conflict is over “statues of St. Michael and St. Florian, the patron saints of police and firefighters,” which city officials commissioned for the police headquarters building. A group of Quincy residents sued, alleging that the statues would violate their religious freedom, and in mid-October, they won a preliminary injunction blocking the statues from being installed.
• Why I wrote to the Supreme Court Last Week (Scott Lincicome, The Dispatch) — In a column for The Dispatch, Scott Lincicome, the vice president of general economics and trade at the Cato Institute, explained why he recently took the unusual step (at least for him) of filing a brief with the Supreme Court. He said the tariffs case is “so extraordinary” that he felt it was important to weigh in and address what he and his colleagues feel are “the bizarrely inaccurate policy claims coming from the Trump administration and its lawyers—in particular, their repeated statements to the court that disaster would befall the nation’s economy and foreign policy if the tariffs were to be struck down.”
• Wisconsin vs. Catholic Charities, Round II (Wall Street Journal Editorial Board)(Paywall) — Earlier this year, the court unanimously ruled that Wisconsin violated the First Amendment when it refused to offer Catholic Charities Bureau a tax exemption available to most other religious groups in the state. In response, state officials are now working to end the exemption for all faith-based nonprofits. The Wall Street Journal Editorial Board highlighted the ongoing conflict in a Tuesday editorial and criticized Wisconsin’s attorney general for “not knowing when to quit.”

A Closer Look: What Should We Call that Other Docket?

The latest high-profile addition to the court’s interim docket (as it’s known at SCOTUSblog) came on Monday afternoon, when the Trump administration urged the justices to pause an order by the U.S. Court of Appeals for the District of Columbia Circuit requiring reinstatement of the top U.S. copyright official. The federal appeals court ruled that Trump’s removal of her violated the separation of powers. The application joins the likes of Trump v. Illinois, Trump v. Cook, and Trump v. Orr on the court’s interim docket. 

The Supreme Court’s interim docket handles applications for immediate action, such as requests to pause stays or injunctions issued by lower courts, without the full process of merits cases. This means there is only limited briefing, no oral arguments (usually), and often unsigned orders with little to no explanation of the ruling. As such, the interim docket is the court’s expedited method for potentially staying executions, blocking policies, or, as in the copyright official case, restoring fired officials amid ongoing lawsuits.

While the docket has long been a part of the court’s work, its increased prominence in recent years (as SCOTUSblog’s own Relist Watch column has chronicled) – particularly in challenges to executive actions – has prompted much debate on what exactly to call this docket.  

The term “shadow docket” was coined a decade ago by law professor William Baude to describe the expedited decisions as occurring outside public view without much transparency (i.e., in the shadows). The term gained further attention through law professor Stephen Vladeck’s 2023 book by the same name. But critics of the term, such as Advisory Opinions’ Sarah Isgur, have noted that “by and large, [the docket is] just not really in the shadows anymore. We have lots of written stuff on these questions. We tend to know the votes now. So it’s both a negative connotation and it’s just not as accurate anymore.”

Others have used the term “emergency docket,” which reflects the docket’s origins in urgent matters like stays of execution and the demand for immediate action on the president’s decisions. However, critics note that many cases on it now linger for weeks or even months (and as professor Taraleigh Davis has noted, the process frequently involves non-urgent disputes that receive substantive review without the hallmarks of emergencies).

“Interim docket” emerged as an alternative name and is used by SCOTUSblog. This phrase attempts to show that such rulings typically maintain or alter the status quo, temporarily, while cases proceed in lower courts. (Of course, this phrase isn’t perfect either, as the court’s decisions are not interim in capital cases or for many of the parties and persons affected by the court’s rulings on this docket.)

More niche suggestions include the “equity docket,” proposed by Advisory Opinions’ “permanent guest” David French for its focus on fairness in granting relief; “short-order docket,” suggested by legal commentator David Lat for its resemblance to short-order cooks using less elaborate means to meet quicker turnarounds (“what we’re getting on the short-order docket isn’t the same as what comes out of the merits docket”); and the “stay docket,” which SCOTUSblog executive editor Zach Shemtob sees as the most accurate descriptor of the court’s actions.

Justices themselves have weighed in, with Justice Brett Kavanaugh favoring the term “interim orders docket.” For her part, Justice Amy Coney Barrett suggested “preliminary docket” after stating critics often mistake these orders for final resolutions. And although he did not come out in support of a particular term, Justice Samuel Alito, in a 2021 speech, criticized the phrase shadow docket as sounding “sinister,” writing that the media’s use of this phrase depicts the court as “having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”

That said, Justice Elena Kagan used shadow docket in a 2021 dissent to critique “unreasoned, inconsistent, and impossible to defend” decisions, but has also referred to it as the emergency docket in public remarks. Thus, even in name, this docket is controversial.

SCOTUS Quote

“Judicial exegesis is unavoidable with reference to an organic act like our Constitution, drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it.”

— Justice Felix Frankfurter in Graves v. New York

On Site

From Amy Howe

Court Requests More Information in Trump v. Illinois

The court on Wednesday afternoon asked the litigants in the challenge to Trump’s effort to deploy the National Guard to Illinois to file supplemental briefs addressing the interpretation of the law on which Trump relied in his Oct. 4 memorandum on the deployment. To learn more about the court’s request, read Amy’s analysis.

Overturning Precedent on the Roberts Court

In early December, the Supreme Court will hear oral arguments in cases asking the justices to overrule two longstanding precedents – Humphrey’s Executor v. United States, a 1935 decision upholding a federal law that limits the president’s power to fire members of the Federal Trade Commission, and Federal Election Commission v. Colorado Republican Federal Campaign Committee, a 2001 ruling that upheld a major campaign-finance law. These cases put a spotlight on a claim often made by critics of the Roberts court: that it has sought to aggressively overturn a long line of precedents. In a new analysis, Amy explored the accuracy of that claim and what past majorities have said to justify overturning precedent.

Case Previews

Richard Cooke on Rico v. United States

On Monday, the Supreme Court will consider whether the fugitive-tolling doctrine – the legal principle that a criminal defendant should not receive credit toward his sentence for time spent as a fugitive – applies when a defendant flees from supervised release, thereby preventing the term of supervision from expiring while the defendant is on the lam. Richard Cooke previewed the case for SCOTUSblog.

Ronald Mann on Hencely v. Fluor Corporation

Also on Monday, the court will consider the extent to which military contractors can be held liable in tort suits – that is, lawsuits seeking damages for harm caused by someone else’s wrongful actions or negligence – brought under state law. “The dispute here involves a suicide bombing in 2016 on a U.S. base in Afghanistan, in which an Afghan employee under the supervision of a government contractor (Fluor Corporation) detonated an explosive vest, killing five people and injuring 17 more. The lower courts concluded that one of the injured victims (Winston Hencely) could not sue Fluor for its negligence in poorly supervising the Afghan employee and allowing him to roam around the base at night,” as noted by Ronald Mann in his case preview.

Contributor Corner

Criminal Case Arguments in the November Sitting

In his latest SCOTUScrim column, Rory Little offered a brief overview of the many “criminal-and-related” cases that will be heard during the court’s November sitting and predicted that they will challenge court watchers’ perceptions of which justices are liberal and which are conservative. “We think we know the ‘politics’ of all the justices, but the usual labels do not always dovetail with results in criminal cases these days,” he wrote.