SCOTUStoday for Thursday, October 9

The winner of the 2025 Nobel Peace Prize will be announced tomorrow morning. No Supreme Court justice has ever won the prize, and that streak almost certainly will continue.

Morning Reads

• Justice Kennedy, Off the Bench but Still Rendering Opinions (Adam Liptak, The New York Times) — Ahead of the release of his new memoir on Oct. 14, former Justice Anthony Kennedy spoke with The New York Times about his majority opinion on same-sex marriage, his relationship with President Donald Trump, and his frustration with “what he said was a spike in ignorance, partisanship and vulgarity in the nation’s public life.” The court has been asked to reconsider the same-sex marriage ruling, and Kennedy told the Times that overturning it could have “consequences that we haven’t foreseen yet.” “He said that ‘a powerful argument against’ overruling the decision was the ‘tremendous amount of reliance’ that same-sex couples and their families had placed on the decision.” As for Trump, Kennedy stated that the president likes his son Justin “very much” because Justin “was instrumental in giving Trump some key things” when Justin worked at Deutsche Bank and Trump was “a major client.”
• Republicans could draw 19 more House seats after an upcoming Supreme Court ruling (Andrew Howard, Politico) — A new report from two voting rights groups contends that 19 House seats hang in the balance as the Supreme Court’s considers, on Oct. 15, whether Section 2 of the Voting Rights Act promotes unlawful racial gerrymandering, according to Politico. “[T]he groups identified 27 total seats that Republicans could redistrict in their favor ahead of the midterms — 19 of which stem from Section 2 being overturned.”
• Livonia man asks U.S. Supreme Court to toss terrorist threat charge, citing free speech (Todd Spangler, Detroit Free Press) — Andrew Hess, a Michigan man charged with making a “terrorist threat” against “an Oakland County election official” has filed an application on the interim docket urging the court to “intervene and stop the county from prosecuting him,” according to the Detroit Free Press. “Hess was charged after attending a recount in December 2023 at which an elections employee said she heard him say, ‘hang Joe for treason,’ apparently referring to Oakland County Elections Director Joe Rozell. … [Hess] has maintained in court documents that any comments he made were ‘off-hand’ and ‘political commentary and hyperbole’ protected by the First Amendment’s free speech guarantee.”
• Sen. Ted Cruz calls for impeachment of judge who gave attempted Kavanaugh assassin 8 years (Charlotte Hazard, The National News Desk) — During Attorney General Pam Bondi’s Tuesday testimony before the Senate Judiciary Committee, Sen. Ted Cruz applauded the Justice Department’s plan to appeal the eight-year sentence given to Sophie Roske, a transgender woman who was charged under her legal name, Nicholas Roske, for attempting to assassinate Justice Brett Kavanaugh, according to The National News Desk. Cruz also called for Judge Deborah Boardman, who handed down the sentence, to be impeached. “I believe this judge should be impeached, because the judge has demonstrated she is completely unfit to be a federal judge,” Cruz said.
• Veteran defense lawyer turned judge oversees case against ex-FBI Director Comey (Michael Kunzelman, Associated Press) — District Judge Michael Nachmanoff “found himself at the center of a political storm” on Wednesday as he presided over former FBI director James Comey’s arraignment. When he was assigned to the case, “Trump, a Republican long fixated on Comey, blasted him as a ‘Dirty Cop’ and derided Nachmanoff as a ‘Crooked Joe Biden appointed Judge’ while celebrating the charges as ‘JUSTICE FOR AMERICA!,’” according to the Associated Press. The case is the latest twist in Nachmanoff’s unique career, which has included working “as the Eastern District of Virginia’s top federal public defender” and arguing in front of the Supreme Court.

SCOTUS Quick Hits

• The court is done hearing argument for the week.
• On Tuesday, the justices will hear argument in Bowe v. United States, on second or successive motions to vacate a sentence, and Ellingburg v. United States, on whether an order for restitution in a criminal case under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause. Look for case previews on SCOTUSblog on these cases and others in the coming days.
• The justices will take part in a private conference on Friday, where they will discuss cases and petitions. An order list outlining some of what was decided at that conference is expected on Tuesday at 9:30 a.m. EDT.

A Closer Look: Mortgage Fraud

In his late August letter to Federal Reserve Governor Lisa Cook, President Donald Trump cited Cook’s “deceitful and potentially criminal conduct in a financial matter” as sufficient cause for her removal. Namely, Trump alleged that Cook had committed mortgage fraud in 2021, two years before she took office, by declaring both a house in Michigan and a condo in Atlanta as her “primary residence” when taking out loans.

The attempted firing prompted Cook to sue the president in federal court in Washington, D.C. U.S. District Judge Jia Cobb ordered the Fed to keep Cook on its board while the case progressed. After the U.S. Court of Appeals for the D.C. Circuit rejected the administration’s request to pause Cobb’s order, Solicitor General D. John Sauer asked the Supreme Court to intervene. The justices declined to do so for the time being, scheduling oral arguments in January.  

But what exactly is mortgage fraud? Typically, when trying to obtain a mortgage, this involves misrepresentations or omissions on loan applications to deceive lenders, often to qualify for favorable rates or profit from the mortgage process. Common mortgage fraud schemes include inflating income, fabricating employment history, or, as most relevant here, falsely claiming a property as one’s primary residence to receive lower interest rates reserved for owner-occupants. Under 18 U.S.C. § 1014, such false statements to banks can lead to felony charges carrying up to 30 years in prison. 

That said, prosecutions for mortgage fraud are relatively rare in the federal system. The U.S. Sentencing Commission reported just 38 sentencings in federal court for this offense in 2024. According to one news source, “Over the past dozen years, fewer than 3,000 people were convicted of federal mortgage fraud.”

The court has also rarely considered the nature or reach of this statute. In the 2016 case of Robers v. United States, it unanimously upheld certain penalties for the defendant, who’d misled a bank into issuing a mortgage he did not intend to repay. The court held that under the Mandatory Victims Restitution Act, Benjamin Robers was required to repay the net amount of money the banks lost on the fraudulent loans – not, as Robers argued, based on what the banks had gotten as collateral for the loans.

SCOTUS Quote

Mr. Clement: “I don’t need to tell you that if you go through the federal regulations, there are lots of silly provisions in there that have never been challenged, but somebody had standing.”

Justice Gorsuch: “… I’d be happy to go through those with you someday, Mr. Clement, but thank you.”

—  Bost v. Illinois State Board of Elections

On Site

Argument Analyses

Evan Lee on Villarreal v. Texas

The Supreme Court on Monday considered whether and in what way trial judges can limit what defense lawyers discuss with their clients overnight when the client is still on the stand. In his argument analysis, Evan Lee wrote that “several justices seem to think the court may prohibit lawyer and client from direct discussions of the client’s testimony, but not collateral matters of trial strategy and management that relate to the testimony.”

Richard Cooke on Barrett v. United States

In Barrett v. United States, the court is considering whether the double jeopardy clause prohibits a defendant from receiving a separate firearm conviction and sentence under two different statutes for the same criminal conduct. Richard Cookie highlighted questions the justices raised about the statutory language at issue in his argument analysis.

Contributor Corner

Are Judges Good Historians?

In her latest A Second Opinion column, Haley Proctor, an associate professor at Notre Dame Law School, wrote about the test for Second Amendment challenges that the court laid out three years ago in New York State Rifle & Pistol Association v. Bruen. Under the test, the government has to show that a firearm-related regulation “is consistent with the Nation’s historical tradition of firearm regulation.” This has fueled a debate about whether judges are capable of being good historians. But Proctor believes that’s the wrong question to ask.

Asking whether judges are good historians is a bit like asking whether a postman is a good racecar driver. Racecar drivers and postmen alike operate motor vehicles, but their objectives, and the methods by which they achieve those objectives, are different.