SCOTUStoday for Tuesday, October 14

Happy publication day to former Justice Anthony Kennedy, whose memoir, “Life, Law & Liberty,” is now in stores.

Morning Reads

• New England courts become a battleground for challenges to Trump (Nate Raymond, Reuters) — Since President Donald Trump returned to the White House in January, “Massachusetts, Rhode Island, New Hampshire and Maine have become key players in legal wars over Trump’s policies … as litigants seek a friendly venue to challenge the president,” according to Reuters. The states are seen as friendly because “17 of the 20 active federal trial judges are Democratic appointees,” as are the five active judges serving the U.S. Court of Appeals for the 1st Circuit. A Reuters analysis identified 72 lawsuits on Trump’s policies that have been filed in one of the four states since January. “Trial court judges have made at least an initial decision in 51 of those cases, ruling against Trump in 46 of them, the analysis showed.” The analysis also showed that the 1st Circuit has weighed in on more than a dozen of those cases and that several of those decisions were appealed to the Supreme Court. “The Supreme Court already this year on seven occasions fully or partially put on hold judicial orders against Trump policies arising out of the 1st Circuit’s jurisdiction in cases concerning the Department of Education, legal status of migrants and third-country deportations.”
• How four courts ruled different ways on Trump’s National Guard deployments (Jack Birle, Washington Examiner) — Trump has faced several lawsuits over his effort to deploy the National Guard to Los Angeles, Portland, and Chicago, and legal experts expect the question of whether the president has the authority to order such deployments to eventually make it to the Supreme Court, according to Washington Examiner. “I think it has to be resolved at the Supreme Court. All the jurisdictions suing the Administration … are liberal jurisdictions,” said John Shu, a constitutional law expert who served in both Bush administrations, to the Washington Examiner. “Even if it wasn’t the case, it’s one of these situations where, regardless of who wins, the loser is going to appeal. Let’s say, hypothetically, that one of these appellate courts rules in favor of the administration. I guarantee you Illinois or Oregon or California would petition for either en banc or certiorari within 30 seconds.”
• Amy Coney Barrett Responds to ‘Heated Dissent’ With Supreme Court Justices (Khaleda Rahman, Newsweek) — Justice Amy Coney Barrett appeared on “Fox News Sunday” over the weekend and addressed recent dissenting opinions from Democrat-appointed justices that criticized the conservative majority’s failure to explain its emergency docket orders. “Barrett defended not providing an explanation for the orders issued in emergency appeals, telling Shannon Bream that writing a lengthy opinion in those appeals ‘might give the impression that we have finally resolved the issue’ when that is not the case,” according to Newsweek.
• DCCHS Oral History of Justice Ruth Bader Ginsburg (Jonathan H. Adler, The Volokh Conspiracy, Reason) — The D.C. Circuit Historical Society recently released the transcripts of eight oral history sessions with former Justice Ruth Bader Ginsburg, who died in 2020. In a post about the release for The Volokh Conspiracy, Jonathan Adler highlighted what Ginsburg had to say about when and for what reasons justices discuss their work with one another outside of private conferences. She said it’s “up to the Justices” but that such discussions, in her experience, often involved coordinating a dissenting opinion or offering feedback on a draft of a majority opinion. Ginsburg added that feedback is less common late in the term when people are busy with their own writing assignments. “The chances of having your opinion released just as you wrote it are much better in April than in October,” she said.
• Anthony Kennedy Says ‘Too Much Partisanship’ Harms Supreme Court (Erik Larson and Miles J. Herszenhorn, Bloomberg) — While promoting his new book Sunday on “The David Rubenstein Show,” former Justice Anthony Kennedy criticized Congress and the executive branch for allowing “too much partisanship” to harm the Supreme Court, according to Bloomberg. He said the nomination and confirmation process for new justices should be focused on other factors. “What you look at is temperament, learning, background, reputation, whether or not you have those qualities of independence and caution that make for a good judge,” he said. Kennedy added that he’s concerned about a lack of civil discourse in public life, including in the work of the Supreme Court. “I think that’s a danger in our present day and age,” he said. “If you’re a member of Party X, then we just assume you have all these views and we don’t like you or we do like you. This is not good for our public and for our national discourse.”

SCOTUS Quick Hits

• An order list outlining some of what was decided at the justices’ private conference on Friday is expected today at 9:30 a.m. EDT.
• Also today, 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. You can find case previews here and here.
• Tomorrow, the court will hear argument in Louisiana v. Callais, on race-based redistricting and the Voting Rights Act, and Case v. Montana, on whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring. You can find case previews here and here.

A Closer Look: Relists

While the justices officially began the new term on Oct. 6, they have yet to put 2024 entirely in the rearview mirror: several relisted cert petitions linger from previous conferences.

A relist occurs when the justices consider a petition for certiorari at one of their conferences but decline to act on it, instead opting to “relist” it, typically for the following conference. This practice has become more routine in recent years for petitions receiving greater scrutiny, often involving a second or third look before a final decision. That said, relists are still relatively uncommon – most of the roughly 7,000-8,000 annual petitions are denied outright without discussion – but when they do happen (at least for the first time) this boosts the odds of a grant compared to the average case. On the other hand, more than two relists often point away from full review. 

Perhaps no one is a greater expert on this topic than SCOTUSblog’s own John Elwood, who tracks relisted petitions through his Relist Watch column. As Elwood notes, cases may get relisted for various reasons, and can sometimes reflect efforts by a justice to rally support for that case. “[J]ustices frequently [relist a petition] when they want to check a likely grant for potential vehicle problems, or because some justices are still making up their minds how to vote on a case — and sometimes because one of the justices is writing an opinion in one of the cases,” he wrote when discussing 14 relists for the 2023 term.  

One current relist includes Lee v. Poudre School District R-1, which challenges whether school districts can override the presumption that parents act in their children’s best interests. The cert petition was initially distributed for the Sept. 29 conference but has since been relisted to Oct. 10. Another relist is Humphreys v. Emmons, a capital case considering the degree of deference federal courts must give to a state court’s prior decision on the quality of a defendant’s legal representation. This was distributed for the May 15 conference but has been relisted multiple times since, and currently stands as the oldest relist of the current term. Other relists at this time cover everything from Section 230 to religious accommodations. 

In all, there are more than a dozen relisted petitions on the docket. With the term underway, we will see changes in the relist list soon, with additions and denials likely at each successive conference.

SCOTUS Quote

“Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.”

— Justice Anthony Kennedy

On Site

From Kelsey Dallas

Alex Jones Goes to the Supreme Court

Conservative media personality Alex Jones filed an emergency appeal with the Supreme Court last week, just over a month after he asked the justices to review lower court proceedings in a Connecticut case over comments he made about the 2012 school shooting at Sandy Hook Elementary School in Newtown, Connecticut, which left 20 children and six adult staff members dead. Kelsey wrote an explainer on Jones’ two pending requests, exploring how the case developed and why Jones believes it is worthy of Supreme Court review.

Contributor Corner

Shadow Overruling

In her latest Cases and Controversies column, Carolyn Shapiro explored shadow docket rulings that result in the “virtual reversal” of past cases. A lot of attention has focused on the court’s apparent abandonment of Humphrey’s Executor, a 1935 case which limited the president’s power to remove the heads of independent agencies, but less has been said about what a recent order on foreign-aid funds means for Clinton v. City of New York, the 1998 case that struck down the Line Item Veto Act, which had allowed the president to eliminate the legal effect of parts of newly enacted laws.

Specifically, the court in Clinton held that once a law is enacted, the president has no power to deprive any part of that law of “legal force or effect.” Nor can Congress give him that power. Yet in a two-paragraph order virtually devoid of reasoning, on an apparent 6-3 vote, the court has handed the president such authority over foreign aid appropriations.