It turns out that there’s quite a bit to the story of the Vetter case—very little of which has to do with the actual, underlying dispute, which concerns the extraterritorial effects of a copyright holder’s recapture of their rights under the 1976 Copyright Act. Rather, Monday’s “affirmance without opinion,” which has the same practical effect as a denial of certiorari, provides a useful foil for two distinct—but overlapping—topics: First, it’s a good illustration of the problems with the Court’s approach to cases in which the body is structurally inquorate, i.e., when fewer than six justices are available to participate and that’s not likely to change solely with the passage of time. Second, it’s an even better illustration of the problems caused by the number of justices with book deals—especially because four of them (you guessed it—Sotomayor, Gorsuch, Barrett, and Jackson) have published with presses owned by the same European conglomerate.

What Monday’s order drives home is that one specific company has an effective exemption from Supreme Court review of a wide variety of cases in which it’s a party. That reality ought to reinvigorate two different sets of reform conversations—one about ways to provide for more effective (and conclusive) resolution of cases in which more than three justices are recused; and one about ways to insulate against the ethical effects of the justices’ extrajudicial commercial activities. Below the fold, I sketch out what those reforms could—and, in my view, should—look like.

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Chances are, you haven’t been following every jot and tittle in the litigation over the Trump administration’s plan to renovate the East Potomac Golf Links—a century-old, low-cost public golf course on a man-made island just south of the west end of the Mall in Washington, D.C. But for as inconsequential as that lawsuit may seem compared to challenges to nationwide immigration policies or disputes over efforts to interfere in the upcoming midterm elections, the case has become a flashpoint for the Department of Justice’s increasingly insolent behavior toward federal district judges—especially when those judges have had the temerity to express frustration and exasperation over the government’s non-compliance with their prior court orders.

There are certainly lines that judges can cross in their behavior toward parties. But notwithstanding the pearl-clutching by the government itself (to say nothing of right-wing social media), a full assessment of the record in the East Potomac case sure seems to suggest that the problematic behavior has come from the government, and not from Judge Ana Reyes. The real-world stakes of the East Potomac case may be modest—especially compared to everything else that’s going on. But the institutional stakes are substantial—and they’re growing by the day.

More on that below. But first, the (Supreme Court) news.

On the Docket

The Merits Docket

Besides the second week of the October argument session, the big news on the merits docket last week involved the grants of certiorari in three additional cases—the biggest of which involves how much information courts can require the government to disclose in FOIA litigation about the internal structure and operations of the “U.S. DOGE Service.” (The Court has previously intervened in this case on the emergency docket, albeit in a way that left that question open.) The three grants bring the total number of “merits” cases on the Court’s OT2026 docket to 32 (two of which are consolidated, so really 31), which means the justices are just over halfway toward filling out their docket for the current term.

Justice Sotomayor also filed a “statement” respecting the denial of certiorari in Herrera-Salazar v. United States—about a serious double jeopardy problem with how the government charged a non-citizen with being “found in” the United States after his removal. Justice Gorsuch joined the statement. (It’s often a good bet, when Sotomayor and Gorsuch are on the same side, that they’re right.)

The Emergency Docket

As usual, the biggest news from the Court came on the emergency docket—to wit, Wednesday’s grant of a stay in FCC v. Brown, the dispute over the “Lowest Unit Charge” rule that I described in detail in last Monday’s newsletter. Once again, the majority provided an “opinion of the Court” respecting a grant of emergency relief.1 This time, the stated rationale was that it wasn’t appropriate for the Fourth Circuit to order the FCC to act by a date certain because the Communications Act “does not obligate the Commission to act within a particular timeframe.” That’s certainly true, but it does nothing to address the challengers’ claim (and the Fourth Circuit’s concern) that the FCC is deliberately stalling its review process for the purpose of thwarting pre-election judicial review—which may explain why Justices Sotomayor and Jackson dissented, albeit without opinion.

As I suggested last week, it’s more than a little difficult to imagine that the justices in the majority would be quite so circumspect about the courts’ authority to compel agency action if they were more troubled by the consequences of the administrative delay. But at least the majority, unlike the Wall Street Journal editorial board, declined to endorse the government’s rather brazen misportrayal of the Fourth Circuit’s behavior in this case.

The other full Court ruling on an emergency application came on Monday, when the justices denied—over no public dissents—Kyle Wagner’s application effectively seeking to reinstate the district court’s pre-trial release order (which I also covered last week).

Beyond those two rulings, the other big news on the emergency docket last week was the absence of news on two other major applications that have now been fully briefed—the Trump administration’s application in the transgender prisoner medical care case and the Alliance Defending Freedom’s application on behalf of a female Washington state public high school wrestler seeking to be exempted from having to compete against transgender women. Especially in the prisoner case (which has been fully briefed since October 9), that sure seems to suggest that a dissent is forthcoming (from the usual suspects, if I had to guess).

There are also two new applications by states that are likely to get attention from the full Court. The first, by Louisiana, is a bit of a civil procedure bonanza. In a nutshell, Louisiana sued an energy company in Louisiana state court. The energy company removed the case to federal court, but Louisiana succeeded on a motion to “remand” the case back to state court (on the ground that removal was improper). The energy company appealed that ruling to the Fifth Circuit, which treated the appeal as necessarily freezing state-court proceedings for the duration of the energy company’s appeal. Louisiana is asking the justices to let those proceedings continue (and, in the alternative, to jump over the Fifth Circuit and grant “certiorari before judgment” to quickly resolve who’s right about the effects of the federal appeal on the state-court litigation, a matter that has apparently divided the federal courts of appeals).

Among lots of other things, this case is a good example of the “normalization” of the emergency docket (and the broader “Court of first view” phenomenon); a decade ago, no one would have thought to even ask the justices to intervene in this kind of procedural dispute—either on the emergency docket or by granting certiorari before judgment. Here, we get requests for both. And even though the case comes from the Fifth Circuit, it’s Justice Sotomayor who has ordered the energy company to respond—by 4 p.m. (ET) on Wednesday. Presumably, that’s because Justice Alito is (once again) recused.

The other new application of note is New Hampshire’s application in an election-related voter ID dispute. In a nutshell, the New Hampshire legislature passed a law barring the use of student IDs as affirmative proof of identity for purposes of voter registration or obtaining or casting a ballot. But New Hampshire law also has a safety-valve provision that allows voters without an approved, government-issued ID to establish their identity through other reasonably reliable means. New Hampshire’s Secretary of State issued guidance that student IDs couldn’t be used to satisfy that provision, either, guidance a district court enjoined on both First and Twenty-Sixth(!) Amendment grounds. A divided First Circuit denied a stay pending appeal, and New Hampshire is asking the justices for a Purcell stay—arguing that the district court’s intervention is too close to the election. Justice Jackson has called for a response by 11 a.m. (ET) today, so this one is likely to move quickly. And in case the partisan valence of this dispute wasn’t already clear, New Hampshire’s application already has the support of an amicus brief from the Republican National Committee.

The Week Ahead

We expect a regular Order List from the justices at 9:30 a.m. (ET) today—for grants and denials out of last Friday’s Conference. John Elwood’s Relist Watch offers some good candidates for grants; I’ll be looking to see if the Court denies certiorari in the two pending petitions from defendants in the 9/11 military commission proceedings at Guantánamo challenging then-Secretary of Defense Lloyd Austin’s rescission of their plea agreements. (I filed an amicus brief in support of review in one of the cases.)

The justices aren’t set to take the bench this week, or even to meet in person for a Conference. So after the Order List, the only news we’re likely to get from the Court will be, as usual, from the emergency docket.

Miscellaneous

Finally, I’m going to try to get back into the habit of sharing my own public Supreme Court-related appearances. To that end, I’ve got two events to flag this week: On Thursday, I’ll be speaking at 10:30 a.m. at the American Constitution Society’s D.C. symposium on “1983 in 2026: Federal and State Developments in Law Enforcement Accountability.” Our panel, with Professors Kami N. Chavis and Danielle C. Jefferis (and moderated by Akua Amaning), will explore “The Rise and Fall of Bivens,” with a special eye toward the upcoming Supreme Court argument in Nielsen v. Watanabe.

And on Friday, I’ll be in New Haven for the Yale Law School Media Freedom and Information Access Clinic’s annual conference on “Access and Accountability.” Following a conversation between Professor Bill Eskridge and Justice Breyer, I’ll be on a panel with Michael Dreeben, Linda Greenhouse, and Ilya Shapiro about “Accountability and the Courts,” moderated by Professor Robert Post. (For those who are wondering whether I’m a Sally’s or Pepe’s person, the correct answer is “Antonio’s.”)

The One First “Long Read”: The Government’s Behavior in the East Potomac Litigation

At bottom, the East Potomac Golf Links litigation is about whether the federal government can turn a century-old, low-cost public golf course into a championship venue tied to the President without first conducting the environmental and historic-preservation reviews that federal law requires. The tree removal is where that fight has come to a head. The government’s central argument is that it is restoring the course’s original 1920s look. The plaintiffs have argued that, as has been true in the litigation over the East Wing of the White House, the tree removal is an early, irreversible step in a redesign that has never been reviewed—and that the time to litigate whether those reviews are required is when they could still make a difference, i.e., before that removal takes place.2

By way of background, East Potomac Park is on a man-made island just south of the National Mall. Congress set it aside in 1897 as “a park for the recreation and pleasure of the people.” Its golf course opened in 1920 and is widely seen as a model for affordable public golf—used heavily by juniors and beginners.

As relevant to the current litigation, in 2020, the National Park Service leased the course, along with two others, to the National Links Trust. The Trust is a nonprofit that planned to restore the courses over a 50-year term. Under its management, annual rounds at East Potomac roughly doubled, from fewer than 60,000 to more than 120,000.

In August 2025, Interior Secretary Doug Burgum apparently pitched President Trump on rebuilding East Potomac as a high-end tournament venue called “Washington National Golf Course,” and the President quickly warmed to the idea. That October, about 30,000 cubic yards of debris from the White House East Wing excavation were dumped on the course. In late December, Interior terminated the Trust’s lease, saying it had failed to make required improvements and pay rent. (The Trust has disputed this claim, pointing to more than $8.5 million in capital investment. What’s more, the lease’s renovation timetable was expressly “general and subject to change.”)

In February 2026, the D.C. Preservation League and two regular golfers, Alex Dickson and Dave Roberts, sued the Department of the Interior, the Park Service, Secretary Burgum, and acting Park Service Director Jessica Bowron in the D.C. federal district court. The basic claim is that the government adopted and is carrying out the “Washington National” plan without the reviews required by the National Environmental Policy Act; the National Historic Preservation Act; and the National Park Service Organic Act. They also contend that the plan defeats the 1897 statute’s purpose of a park for public recreation. On the environmental side, they allege that the East Wing debris (which may well contain asbestos and other harmful toxins and other chemicals) was dumped on the course without the required review. They’ve also consistently accused the government of “segmentation,” i.e., an attempt to carry out a large project in small pieces to frustrate comprehensive judicial review.

Critically, Judge Ana Reyes initially deferred the plaintiffs’ request for preliminary relief entirely because of the government’s representations “that no plans have been approved on the East Potomac Golf Course or are scheduled to take place,” apart from the land filling. In a subsequent filing, an NPS official said that renovation plans “remain in the conceptual stage.” Instead, Reyes directed the parties to agree that the government would notify the court and plaintiffs before any major work began. As she explained, “[t]he only reason I’m not making an injunction order is because I don’t want to put people through contempt proceedings. I want to trust that people are acting in good faith . . . until proven otherwise, and you have not proven otherwise to me in this litigation.”

In other words, while receiving briefing and developing the record on the plaintiffs’ substantive claims, the only specific demand Reyes imposed on the government was to provide notice before any especially significant maintenance work on the course was undertaken (including the removal of more than 10 trees)—so that she could then decide if more coercive relief was appropriate before the work was performed. And as I hope this summary makes clear, there was no ambiguity about any of this. Indeed, my count of the record as of the beginning of this month identifies more than ten different instances over the course of the litigation in which the plaintiffs asked Judge Reyes for some kind of interim relief—and she denied all of them.

That’s where things stood two weeks ago, when the Department of the Interior apparently decided to fully consider and approve the tree removal plan in just five days—from October 5 to 9 (a bit ironic given the timeline the Supreme Court thought the Fourth Circuit couldn’t impose on the FCC). It notified the plaintiffs only at 4:55 p.m. on the Friday before the holiday weekend, and crews appear to have cut down about 430 trees the next day.

To be clear, the government has non-frivolous substantive arguments for why it has the authority to renovate the East Potomac course. Its stated reason for removing the trees is historic restoration tied to a 2019 “Cultural Landscape Report.” That report found that a century of tree planting had obscured views and changed the course from its original “links-style” design, which has few trees and open sightlines. National Mall Superintendent Kevin Griess swore in a declaration that the agency intends to stay true to that links character. He wrote that up to 529 trees that “do not contribute to the historic landscape” would be removed. He added that no healthy trees that are historic features, such as the cherry trees, would be chopped down.

The problem here is two-fold. First, the developing record in the district court has … complicated … that account. A Park Service deputy director testified that the project was in fact part of the President’s March 2025 executive order to make D.C. safer and more beautiful, not a reaction to the 2019 report. That official and another one also acknowledged there was no urgent deadline requiring immediate action. As Judge Reyes concluded, the government rushed “because President Trump demands haste on his redesign,” not out of “some newfound zeal” to carry out the 2019 report. All of that may well matter when it comes to the merits of the plaintiffs’ claims.

Second, and in any event, the government was under an obligation to provide meaningful notice to the plaintiffs and Judge Reyes before any meaningful work was undertaken to implement the plan. And the purpose of that notice was to provide the parties and the court with time to resolve whether implementation of the plan should be blocked pending its judicial review. In other words, the notice requirement wasn’t to let the court know the work was underway; it was to give the court time to decide if the work should be allowed to proceed. Suffice it to say, belatedly apprising the plaintiffs and the court five minutes before the close of business at the beginning of a holiday weekend that you’re imminently going to do something you said you’d warn them about in advance is inconsistent with that obligation.

All of this led to the drama that has since received media attention. Reyes held an extraordinary four-hour hearing on Indigenous Peoples’ Day, and issued a temporary restraining order (that she has since extended) barring the removal of any more trees. In last Monday’s hearing, Reyes told the government’s lawyers that they had “lost credibility” through their behavior, and was heated in her questioning not just of the Justice Department’s representatives, but of the government witnesses during the hearing (one of whom participated via a cell phone from his car). Another hearing, with witnesses who weren’t available last Monday, is set for later today.

And yet, instead of appealing Judge Reyes’s TRO (a maneuver it has not been shy about pursuing in other cases despite the traditional unappealability of TROs), the Department of Justice moved on Friday to disqualify Reyes from the case. DOJ’s motion is extraordinary in several respects (the least significant of which is its misrepresentations of the plaintiffs’ position). Among other things, it accuses Judge Reyes of “histrionics”; it asserts that she prejudged motions not yet filed and wrongly summoned witnesses with no notice on a federal holiday (one of whom, it should be noted, was one of the government’s principal declarants in the same case);3 it argues that her May ruling “effectively granted Plaintiffs veto power” over park maintenance (which is an odd thing to complain about in seeking disqualification in October); and it more broadly claims a “pattern of animus” against the Trump administration going back to Judge Reyes’s rulings in a 2025 case about transgender servicemembers (never mind Reyes’s repeated refusals to intervene in this case before last week, all of which are inconsistent with such a pattern).

In essence, the government’s motion to disqualify Judge Reyes asks her to answer for the consequences of its conduct. For months, Reyes gave the administration the benefit of the doubt. She declined to enter an injunction because she wanted “to trust that people are acting in good faith,” and she relied on repeated assurances that no plans had been approved for the course. The government then approved a tree-removal plan within five days, and it told the court only at 4:55 p.m. on the Friday before a holiday weekend—only to now complain that Judge Reyes dared to call witnesses to an emergency hearing on that very federal holiday.

Nothing about the future of the Republic turns on whether East Potomac becomes a championship course or continues to operate as an affordable muni course. But that’s precisely why all of this is so revealing. When the stakes are this low, there’s no national-security rationale or sweeping policy interest to explain away the government’s litigation conduct. And the conduct speaks for itself: months of assurances that nothing was imminent, followed by a five-day approval and a notice at the close of business on a Friday before a holiday weekend, followed, once the court pushed back and sought to get to the bottom of the government’s behavior, by a motion accusing the judge of “histrionics” and “animus” rather than a defense (or appeal) on the merits, or even any attempt at an explanation for the government’s shady behavior.

And if all of that weren’t enough, President Trump took to Truth Social on Sunday to announce that renovations to the golf course will begin in November—calling into fairly sharp question the government’s repeated protestations that “at most[,] the President has given preliminary thought” to the renovation. Of course, the Department of Justice quickly attempted to disavow that the President’s posts meant anything relevant to the litigation, framing its own earlier reliance on prior statements by the President as “an argument about what those statements might be evidence of” and nothing more. The unitary executive strikes again.

I wrote just about all of this post (other than this paragraph) before Judge Reyes, late on Sunday night, denied the government’s motion to disqualify her. But her opinion respecting that ruling provides even more receipts than I’ve provided above. After reading it, I’d like to think a good faith reader would be more troubled by a judge who wasn’t offended by the government’s behavior in this case than by anything Reyes has done to date. As she put it, “It is easy to weaponize selective quotations to bring a baseless recusal motion. But it is much harder to meet the demanding legal standard against a full record.” And as I’ve suggested previously, although discretion is usually the better part of valor when it comes to judicial behavior, it’s just as important for federal judges to sound the alarm bells when the government’s behavior warrants it. This strikes me as such a case. Perhaps tellingly, none of the folks on right-wing social media who have echoed the government’s complaints about Reyes’s behavior in this case have even attempted to acknowledge the full contours of the government’s conduct—let alone to defend it.

Ultimately, the problem this imbroglio illustrates isn’t that the administration loses in the district courts; it’s that it increasingly seems to treat district courts less as coequal actors whose role it must respect than as obstacles to be outrun and then delegitimized when they catch up. If that’s how the government behaves in a dispute over a few hundred trees on Hains Point, it’s worth asking how it behaves when the stakes are actually high—and whether the appellate courts (including the Supreme Court) should keep that behavior in mind when the government asks them to review what the district courts have done.

SCOTUS Trivia:
The Day the Court Decided “What is Golf?”

Given the subject matter of today’s long read, I couldn’t resist using the trivia to write a bit about PGA Tour, Inc. v. Martin—the Court’s 2001 ruling holding that the Americans with Disabilities Act required the PGA Tour to let Casey Martin, who has a circulatory disorder, use a cart, because such an accommodation would not “fundamentally alter the nature” of PGA Tour events.

In his dissent (joined by Justice Thomas), Justice Scalia … had some fun. Because of the majority’s reasoning, Scalia wrote,

It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!

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As someone who regularly gets pilloried, whether on Substack, social media, or in my e-mail, for both (1) having lots of other reform ideas; and (2) having grave concerns about Court expansion, I find this framing deeply unhelpful and unfortunate. As I’ve explained in detail, there are countless other levers Congress used to pull to help keep the Court accountable, levers that ought to get far more serious discussion and consideration as part of contemporary Court reform discourse. And as I’ve also explained in detail, expansion not only won’t do anything to solve the underlying problem (the Court’s complete lack of accountability), but it will almost certainly produce some (to my mind) deeply undesirable, if not disastrous, medium- and long-term effects along the way.

Alas, a lot of us end up just talking past each other. So in an effort to get us all onto the same page, it seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently “good” thing. If nothing else, proponents of expansion should have to answer the following four questions:

1. How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?

2. If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?

3. If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?

4. What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?

I’ll offer my own thoughts on each of these questions below the fold. But whether or not you read any further, the one point that ought to be clear is that the calls for expansion have thus far been substantially undertheorized. Regular readers of this newsletter know that I’m pretty cynical about the current Court. But it seems worth at least indulging the possibility that there are ways to fix the Court that are less likely to permanently undermine judicial review as an institution—and that recent events have underscored just how steep a price we would pay for four new justices in 2029.

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The Supreme Court made plenty of news last week, and we’ll get to it in a moment. But as you probably saw, Secretary Hegseth announced late last week that he intends to publicly live-stream the military’s execution of Nidal Hasan (the Fort Hood shooter) by firing squad later this year. There’s quite a lot to say about all of this, and I’ll try to touch on at least most of the big issues below. The key point for present purposes is that, in a world in which the legality of such a public spectacle ends up in court (and I’m skeptical that it will), Hegseth’s proposal is an unusually accessible illustration of the very real consequences of the shift in the Supreme Court’s Eighth Amendment jurisprudence since 2019.

Not that long ago, it was a likely bet that a majority of the justices would find a live-streamed, public execution to be inconsistent with the “evolving standards of decency” that had provided the yardstick for what the Cruel and Unusual Punishments Clause prohibits. But ever since Justice Kennedy retired, the Court has embraced a more static, 1791-oriented conception of which punishments are—and aren’t—constitutional. The fact that we as a society have moved away from public executions (and the reasons why we’ve done so) would have mattered a lot for that earlier doctrinal understanding. That it wouldn’t mean nearly so much today is, in my view, a pretty telling indictment of this entirely recent jurisprudential shift.

More on all of that below. But first, the (other) news.

On the Docket

The Merits Docket

Last Monday brought with it the Order List out of the Long Conference—which made surprisingly little news. There were no additional grants of certiorari; and only one separate writing (a “statement” by Justice Sotomayor respecting the denial of certiorari in Mulkey v. Alabama). Indeed, besides the first four oral arguments of the term, it was a pretty quiet week on the merits docket all told.

The Emergency Docket

There were three orders by the full Court last week on emergency applications, all of which were denials of stays of execution to Texas death-row prisoner Jamal Howard. Justice Jackson publicly dissented from the second of the three (the one raising Howard’s claim that he was intellectually disabled under Atkins v. Virginia).

The biggest emergency docket news, though, was Chief Justice Roberts’s entry of an administrative stay in FCC v. Brown—the return of the litigation over the FCC’s recent applications of its “Lowest Unit Charge” rule. Especially because right-wing social media is once again misrepresenting what’s actually going on in this case, I thought I’d take a beat to provide some context (apologies in advance for the length):

The basic story here is about an agency that is, quite transparently, trying to run out the clock. Federal law has long been understood—by the FCC itself—to guarantee the cut-rate “lowest unit charge” for pre-election advertising in the last 90 days before an election only to legally qualified candidates, not to political parties or political action committees. On March 30, the FCC’s Media Bureau issued a “Public Notice” purporting to extend that discount to political parties’ coordinated expenditures and to joint fundraising committees with non-candidate members. In April, four Democratic candidates asked the full Commission to set the notice aside, and when the Commission sat on the application (which federal law requires it to decide), they eventually petitioned the Fourth Circuit for review of the agency’s (in)action. On August 25 (18 days after oral argument), a divided panel held that it had jurisdiction—treating the notice as a final legislative rule the Commission had “constructively denied” review of—and set the notice aside on the merits (as exceeding the FCC’s authority), with Judge Wilkinson dissenting.

On September 4, the day the LUC window opened, the Supreme Court, over a lone dissent from Justice Jackson, granted the Trump administration’s request to stay the Fourth Circuit ruling, resting on a likelihood that the panel “lacked statutory jurisdiction” because the relevant statute requires an aggrieved party to wait for the Commission to resolve its application “by order” before seeking judicial review. Critically, nothing in the majority’s 3.5-page opinion said anything about the validity of the FCC’s new interpretation of the LUC rule—or in any way endorsed its procedural gamesmanship. The central flaw the majority identified was simply that the challengers had sought review of agency action that … hadn’t happened yet.

The challengers quickly changed tack. Instead of seeking “review” of agency action not yet taken, they sought an order (a writ of mandamus) from the Fourth Circuit to compel the agency to act (which, again, federal law requires it to do). And on Wednesday, the same panel ordered the FCC to actually decide the pending application by noon on October 9—prompting the Solicitor General to race back to the justices with a new application the next day (the record-breaking 42nd of the second Trump administration), accusing the Fourth Circuit of “a flagrant abuse of the extraordinary writ of mandamus and a baseless effort to circumvent a prior stay entered by this Court.”

As the above description hopefully makes clear, I think that claim is ridiculously overstated. Seeking review of agency action that hasn’t happened is a different beast from asking a court to order an agency to act. And the Fourth Circuit only ordered the FCC to act by a date certain; the court of appeals did not tell the agency how to act. As the Fourth Circuit put it, ordering the Commission to decide “does not evade the prerequisite the Supreme Court identified. It requires the Commission to fulfill it,” while the September 4 stay “remains controlling” for any future merits review. Indeed, one would imagine that, if an executive branch agency were playing these kinds of games to frustrate judicial review during a Democratic administration, the same folks accusing the Fourth Circuit of defiance would agree with the court of appeals’ majority, lest “[a] requirement that the Commission first act becomes a license for the Commission not to act.” It also seems worth adding that, the more the Court writes when it grants emergency relief (as in the September 4 stay), the less lower courts should be over-reading what the Court said.

Anyway, Chief Justice Roberts quickly issued an “administrative” stay of the Fourth Circuit’s ruling (which, again, only would’ve required the FCC to … act on the challengers’ request), and ordered the challengers to respond by 5 p.m. (ET) on Saturday (you don’t see that every day). So it’s possible we’ll get a full Court ruling in what is now captioned FCC v. Brown … anytime. (There’s a parallel application from the National Republican Congressional Committee, but I suspect the Court will just deny that one as moot once it does whatever it’s doing with the FCC’s application.)

The Week Ahead

The Court is closed today for the federal holiday. That probably means we won’t see any movement in the FCC case, but it’s not a guarantee. Otherwise, we’ll have a full day tomorrow, with orders expected at 9:30 a.m. (ET), and oral argument (note the singular) at 10. (For some good hints about possible grants of certiorari we’ll see tomorrow, check out the latest installment of John Elwood’s indispensable “Relist Watch” column.) The Court will hear one more case on Wednesday, and that’ll do it for the (light) October argument session.

Beyond the FCC application, it also seems like a good bet that the Court will rule sometime this week on the Trump administration’s other pending emergency application—in the case about whether federal prisons can deny gender-affirming medical care to transgender prisoners. That application has been fully briefed since Friday.

There are at least two other applications that may produce full Court rulings this week. Wagner v. United States involves a request for release from pretrial detention by a defendant who’s been charged with publishing online statements and social media posts criticizing ICE agents, threatening law enforcement, and discussing potential violence. The district court specifically found that the defendant did not pose a threat, and ordered him released pending trial. But a divided Sixth Circuit panel disagreed, in a ruling that Wagner argues is inconsistent with the law in every other circuit. That application is fully briefed and ripe for a ruling anytime.

Meanwhile, in K.M.K. ex rel. Brown v. Washington State Interscholastic Association, the Alliance Defending Freedom is asking the Court to issue an injunction pending appeal requiring Washington state (which allows transgender girls to participate in interscholastic athletics) to allow cisgender girls to “opt out” of competing against transgender girls. Of course, whether federal law requires states to allow transgender girls to compete in interscholastic athletics (the Court said no in West Virginia v. B.P.J.) is a very different question from whether it bars states from choosing to do so. Anyway, Justice Kagan has ordered a response to the application by 4 p.m. (ET) tomorrow, so this could also move quickly.

The One First “Long Read”:
Devolving Standards of Decency

Before turning to the contours of the Supreme Court’s Eighth Amendment jurisprudence, it might be worth starting with a couple of stage-setting observations. First, I don’t actually expect Hasan to seek to contest in court whatever the government ends up doing with regard to his execution. So far as I am aware, since his direct appeal became final, Hasan has not filed a single collateral attack on his conviction or sentence—either in the military justice system or in the civilian courts. That wouldn’t prevent him from filing one now, but it does suggest that he is uninterested in using the legal system to seek to block his execution. And that leads me to my second point: Before getting to the legality and morality of live-streaming an execution, it’s worth taking a moment to underscore how colossally stupid it would be in this case—where it’s likely only to further Hasan’s homicidal quest for martyrdom.

Third, and speaking of morality, this whole episode reminds me of a judicial opinion I think about a lot—a 2014 dissent from the denial of rehearing en banc by then-Ninth Circuit Chief Judge Alex Kozinski (who stepped down in 2017 after more than a dozen of his former female law clerks and staffers credibly accused him of sexual harassment and abusive employment practices). My issues with its author notwithstanding, I often come back to the opinion’s unusually candid discussion about the decades-old effort to carry out executions by lethal injection, and the massive litigation it has provoked:

The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

Kozinski was even more direct about firing squads:

Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

I’ve long had deeply conflicting views about capital punishment. In theory, I’m not completely opposed to it in all cases—at least largely for the reasons why Hannah Arendt was convinced that Adolf Eichmann had to hang. But I have real problems with (1) how often we use it; (2) the well-documented disparities in how we actually use it; (3) the frequency with which the actual executions … don’t go well (most recently in the Christa Pike case); and (4) how impoverished judicial review of our use of it has become—to permit executions in cases in which genuine legal questions about the conviction or sentence remain unanswered. Maybe that’s why I’ve always related, at least a bit, to Kozinski’s suggestion that lethal injection allows society to tell itself a deeply untrue story about the “humanity” of state killing. It’s a lot easier for a society to condone ugly behavior that it’s never forced to confront. (Justice Sotomayor sounded a similar note in her Glossip dissent: “[W]e deserve to know the price of our collective comfort before we blindly allow a State to make condemned inmates pay it in our names.”)

Speaking of society, that’s where the current Court’s significant shift in its Eighth Amendment jurisprudence also shows up. For decades, the Court recognized that, because the language of the Cruel and Unusual Punishments Clause is dynamic, the Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” The animating premise, as Trop v. Dulles explained, was that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” so that the state’s power to punish must be “exercised within the limits of civilized standards.”

The Court gave substance to that inquiry most fully in its categorical death-penalty cases, instructing in Atkins v. Virginia that “[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures,” supplemented by the actual sentencing practices of juries, in order to determine whether a “national consensus” had formed against a given punishment. Critically, Atkins confirmed that this objective evidence does not “wholly determine the controversy,” because “the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability” of the punishment under the Eighth Amendment. And Roper v. Simmons formalized that two-step method, beginning with “a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures,” and then exercising the Court’s “own independent judgment” on whether the penalty is disproportionate, with attention to the offender’s culpability and the penological justifications of retribution and deterrence.

By the early 2010s, the Court had organized this body of law into two bodies of proportionality precedent—one adopting categorical bans on types of punishment or classes of offenders that were keyed to “mismatches between the culpability of a class of offenders and the severity of a penalty,” and one requiring individualized sentencing—and used the evolving-standards methodology to extend categorical protection beyond capital cases. Throughout this period, this methodology drew sustained dissent—most pointedly from Justice Scalia, who objected that the Court was extracting “national consensus” from small datasets of legislative action and ultimately substituting its own moral views for those of elected legislatures in the states authorizing the challenged punishments—underscoring that “evolving standards of decency,” while settled as the Court’s doctrine, remained contested in application.

Not long after Justice Kennedy retired in July 2018, Scalia’s dissent became the majority view. In Bucklew v. Precythe, for instance, Justice Gorsuch (writing for a 5-4 majority) sharply recentered the Eighth Amendment analysis on the Clause's “original and historical understanding,” displacing evolving standards as the operative mode of decision in the areas it touched. “As originally understood,” Gorsuch argued, “the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by ‘superadding’ terror, pain, or disgrace.” On that (putatively) originalist footing, the Court also held that a prisoner must identify a “feasible and readily implemented alternative method” that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason before he could object to a specific execution method. Bucklew treated this alternative-method requirement as “compelled by our understanding of the Constitution, not by mere policy concerns,” and all but relegated to the dustbin the contemporary-values, dignity-based reasoning that Trop and its progeny had prioritized.

Against that backdrop, it’s not at all obvious that this Court would identify an Eighth Amendment problem with either the military’s use of a firing squad or its public broadcast of an execution. Taking the firing squad piece first, in Wilkerson v. Utah (1879), a unanimous Court upheld a sentence of death by public shooting, holding that “the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category” of cruel and unusual punishments. Justice Clifford reasoned directly from military custom, observing that “the usages of the army to the present day are that sentences of the kind may in certain cases be executed by shooting,” and that “[s]oldiers convicted of desertion or other capital military offences are in the great majority of cases sentenced to be shot.” And even outside the military context, the current Court has often pointed to firing squads as potentially better alternatives to some of the more dubious methods states have pursued. It’s hard to see how the firing squad piece of this would thus be the one to raise Eighth Amendment hackles.

The public execution piece is the harder one. In a world in which the “evolving standards of decency” approach were still the dominant one, it would be easy to see the arguments against public executions—especially given all of the reasons why public executions have fallen out of favor. But the Founding-era reality is that executions were ordinarily public events, so under Bucklew’s original-meaning approach, a public execution would not be “unusual” in the sense of a long-disused practice, nor “cruel” unless it were “deliberately designed” to “superadd” terror or disgrace beyond carrying out the death sentence itself. Put another way, the biggest gap between the Court’s “evolving standards” jurisprudence and its current approach involves punishments that were in broad use at the Founding but have since been largely repudiated. And the public execution of Hasan would fall right into that space.

Again, I don’t think that any of this is going to matter. Even if the government goes ahead with a public execution, I don’t expect litigation from Hasan challenging the details, and it’s not clear to me who would otherwise have standing to object. But the public spectacle and moral issues aside, even the idea of public executions provides a useful foil for illustrating the consequences of yet another significant doctrinal shift the Court has undertaken since 2018—one that tends not to be as visible as many of the others.

SCOTUS Trivia: The Denouement in Wood v. Ryan

This isn’t really trivia, but it’s a point that seemed worth adding to the discussion of then-Chief Judge Kozinski’s dissent in Wood v. Ryan. The prisoner, Joseph Rudolph Wood III, was one of six Arizona death-row inmates who sued in an effort to identify (and source) the specific drugs Arizona planned to use in carrying out his lethal injection and the details of how it planned to do so. After the district court refused to issue a preliminary injunction, a divided Ninth Circuit panel issued an injunction blocking further executions in Arizona until the state disclosed (a) the name and provenance of the drugs; and (b) the qualifications of the medical personnel administering them, with the injunction to dissolve automatically once that information was provided.

Instead of providing that information, Arizona sought relief first from the full Ninth Circuit (Kozinski’s dissent is from the full Court’s denial of that request), and then from the Supreme Court. On July 22, 2014, the Supreme Court granted Arizona’s request—over no public dissents. The only explanation the Court provided was that “The district judge did not abuse his discretion in denying Wood’s motion for a preliminary injunction.”

One day later, Arizona executed Wood—but only after badly botching the procedure. According to witnesses, Wood gasped and struggled to breathe for roughly two hours after the drugs were first administered, ultimately receiving 15(!) doses of the lethal-injection drugs even though Arizona’s protocol called for only two, while the execution team also failed to perform required consciousness checks.

To borrow the title of an excellent 2016 Vanderbilt Law Review student note by Alexander Vey, “no clean hands in a dirty business.”

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!

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One of the two amendments that wasn’t immediately ratified would have banned Congress from raising its own pay—a proposal that was eventually adopted by three-fourths of the states as the Twenty-Seventh Amendment in 1992. The other un-ratified proposal was the very first “Article” that Congress submitted to the people. And although its language was messy (and would’ve led to an apportionment paradox in the 1820s), its underlying purpose was clear: Congress wanted the size of the House of Representatives to expand in at least loose proportion to the size of the country. The Constitution itself had ensured a maximum size for the House of Representatives (“no more than one Representative for every 30,000 persons,” which would mean more than 11,000 members today). But it had said nothing beyond that, and a number of the Founders wanted to ensure that the House expanded as the country did.

Today, the size of the House of Representatives—435 members—has been fixed since 1911, when the population of the country was 93.8 million people. In other words, we’ve gone from one representative for every 37,000 inhabitants after the 1790 Census to one for every 215,000 inhabitants in 1911 to one for every 788,000 inhabitants today. The average member of the House today thus represents twenty-one times more constituents than their predecessors did when the Bill of Rights was adopted. And those are just averages; two of the 435 districts in the current Congress (Delaware’s at-large district and Idaho’s First District) have more than one million people living in them.

Reasonable minds will disagree about how much bigger the House of Representatives should be. But it shouldn’t be controversial that the House has become wildly un-representative, or that uncapping the House is something we ought to all be able to get behind (even—if not especially—if it’s not obvious whether it benefits Democrats or Republicans more in the short- or long-term). As I explain below the fold, uncapping the House (which could be done through an ordinary statute) would have at least three major virtues: (1) it would increase representativeness—and, thus, local accountability for representatives—even if the ways it does so might not be immediately visible; (2) it would dilute the weight of Senate seats in the Electoral College—which would thus reduce the Electoral College’s problematic bias toward small states; and (3) it would reduce the wild disparities in the size of the House’s current districts, where some districts are nearly twice as populous as others.

There are other positives, too, but these strike me as the most indisputable ones. Had it been adopted, the original First Amendment may not have actually succeeded in producing this result. But it’s long-past time to talk about at least passing a statute to replicate the principle for which it stood.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court (no later than) Monday. For those who are, please read on.

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The central inconsistency of Chapter 8, which is devoted to the emergency docket, is structural: Rather than tackle the subject holistically (as one might expect in a book), Alito mashed together the speech he gave five years ago at Notre Dame Law School with a “postscript.” The former was deeply flawed even at the time (among lots of other things, Alito repeatedly insisted that there was “nothing new” about the Court’s behavior on emergency applications during the first Trump administration and COVID); and the latter tries to move the goalposts away from the specific phenomena to which critics like me have actually objected.

The result is to leave readers with a disjointed, inaccurate, and misleading sense of what the debate is even about—to say nothing of how the Court’s own behavior since September 2021 (including Alito’s) has only further undermined the already-flawed claims Alito made back then. Somewhere between the galleys of Alito’s book and the final product (which hits bookstores today), someone apparently figured out that my last name should be spelled the same way (and correctly!) throughout. The other, more significant inconsistencies were, apparently, harder to fix.

Alito’s September 2021 Notre Dame Speech

It may help to start by doing something Justice Alito doesn’t—to put his September 2021 speech into the context in which Alito made it. September 2021 was the first time the term “shadow docket” had broken through into the mainstream media ecosystem. Specifically, public attention was turbocharged by the Court’s 5-4 order late in the evening on September 1 (almost certainly written by Alito) that had allowed Texas’s six-week abortion ban (“SB8”) to go into effect nine months before Dobbs. The dramatic uptick in rulings on emergency applications during the first Trump administration and then during COVID had certainly gotten some media coverage. But the first usage of the “shadow docket” term in a Supreme Court opinion had come in Justice Kagan’s SB8 dissent,2 where she argued (my emphasis added) that

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.

A couple of weeks later, the Senate Judiciary Committee picked up on these critiques, devoting a full Committee hearing (at which I was one of the majority witnesses) to “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket.” Alito, rather transparently, decided to use a (kinda-sorta-)public address at Notre Dame to push back.3

Alito’s speech, as reconstructed in the book, purported to defend the Court’s behavior by identifying what he described as the “ten criticisms” of the emergency docket, and then explaining why each criticism was unpersuasive. As I explained in detail at the time, the common theme of Alito’s arguments was that the Court was merely reacting to events beyond its control; that it wasn’t doing anything unusual (“nothing new”) in how it was reacting; and that its tendencies both to not explain its rulings and to hand them down at all hours of the night could be attributed to the fact that all of these cases unfolded against external deadlines (which wasn’t true even then in the vast majority of them; even in the SB8 case, where there was a deadline from when the law went into effect, the Court missed it by 23 hours). Meanwhile, Alito insisted, the Court was consistently following the standards governing emergency relief. Moreover, the fact that none of these rulings had any precedential value mitigated any concern over their broader, downstream effects.

Even in September 2021, Alito’s arguments were inconsistent with the facts—as I laid out during a presentation for the American Constitution Society chapter at Notre Dame one week after Alito’s speech, in a live-streamed video that’s still online. There were, already, countless examples during the first Trump administration and in COVID-related cases of the justices (Alito included) doing exactly what Alito disclaimed at Notre Dame; here’s the Court in February 2021 treating an order without a majority opinion as a precedent; here’s an April 2021 ruling granting an injunction (which requires a “clear and indisputable right to relief”) based upon a novel interpretation of the Free Exercise Clause. And there were lots of examples from the Trump I era of the Court already accepting that the “government” suffers irreparable harm anytime it is subject to an injunction.

By caricaturing what the criticisms actually were, and by asserting things that weren’t true, Alito was able to duck the single most important criticism then being made of the Court’s emergency docket behavior—that, in deciding so many high-profile cases on the emergency docket with such truncated process and so little explanation, the Court was also behaving inconsistently, so that it appeared that its rulings were motivated more by the political preferences of a majority of the justices than by the faithful application of neutral legal principles. Again, to quote Justice Kagan’s SB8 dissent, these rulings were increasingly becoming “more unreasoned, inconsistent, and impossible to defend.”

Consider, in this respect, the May 2022 Texas social media case, where Alito dissented from the Court’s refusal to disturb a lower-court injunction, warning that enjoining a state law was “a significant intrusion on state sovereignty” and that Texas “should not be required to seek preclearance from the federal courts before its laws go into effect.” It is a principled-sounding objection, except that Alito was (or, at least, appeared to be) in the majority in each of the COVID cases in which the Court blocked New York’s and California’s laws before, or just after, they took effect. If there is a neutral principle that distinguishes blue states’ laws from red states’ laws, he hasn’t articulated it (either then or since).

Alito’s “Postscript”

In the five years since Justice Alito’s Notre Dame speech, a couple of things have happened—especially on the emergency docket. The “postscript” to Chapter 8 at least concedes that, “[s]ince then, both the size and the importance of that docket have grown enormously.” And Alito identifies three causes for this shift—all of which are external to the Court: (1) presidents increasingly making policy without legislation; (2) “[e]qually bold” litigation countermeasures by opposing state AGs and interest groups, with deliberate forum selection; and (3) overreach by district judges.

I don’t actually disagree that all three of these developments have contributed to the phenomenon, even if Alito and I might disagree about which district judges have been engaged in overreaching. But Alito’s postscript never even considers the possibility that the Court bears any responsibility for the uptick—including by behaving in ways that have made it more attractive for certain litigants (especially the Trump administration) to keep coming back to the justices for emergency relief they wouldn’t previously have sought. On Alito’s telling, the only actual problem critics have identified that’s worth addressing is the increased volume—which is, in his view, everyone’s fault except the Court’s.

This deeply dubious framing allows Alito to make two moves. First, the postscript never returns to the criticisms he purported to address in the Notre Dame speech, and so he never even attempts to explain how the Court’s behavior over the last five years hasn’t completely undermined his defense of its behavior as of September 2021.

To take just one example, consider the question of whether orders respecting emergency relief have precedential force. Alito was adamant, in his Notre Dame speech, that rulings on emergency applications don’t have precedential value. That was, if anything, part of why he thought critics’ concerns were overstated. But now we have the July 2025 ruling in Trump v. Boyle, where the Court (in language Alito almost certainly joined), not only held that the result in a different case was “squarely controlled by” an earlier emergency docket ruling; it went on to stress that, “Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.” 2021 Alito asserted that this just wasn’t true; 2026 Alito doesn’t bother to reconcile the contradiction because he doesn’t even acknowledge that it exists.

Likewise, at Notre Dame, Alito had insisted that the Court was faithfully applying the existing standards for emergency relief, a central part of which is the balancing of the equities. Just over three months later, he joined a majority opinion asserting that, on an emergency application “[i]t is not our role to weigh such tradeoffs,” and he’s since been part of dozens of rulings in which the Court has skewed equities-balancing in ways that have asymmetrically benefitted the Trump administration (as compared to the Biden administration or private parties). Conservative law professors have kept asking whether the Court has sub silentio changed the standards for relief in these cases; Alito insisted in 2021 that it hadn’t, and has nothing to say about the topic today, even in the face of overwhelming evidence that the Court is not consistently applying the standards that it still insists are applicable.

My favorite charge of Alito’s, though, is that the Court’s emergency docket critics are just unhappy with the results—and so they’re dressing up substantive disagreements with outcomes in procedural terms. Leaving aside the not-so-subtle implication of bad faith on the part of the Court’s critics, Alito himself has also relied upon these same procedural objections when they have led to outcomes with which he is dissatisfied. In a June 2022 dissent, he complained that the majority “unnecessarily resolves difficult . . . questions on which . . . we have received only hurried briefing and no argument.” And as I noted at the time, his April 2023 dissent from the Court’s grant of stays in the mifepristone case is impressive in just how completely tone-deaf its hypocrisy is.

It’s also the case, as I’ve pointed out before, that not all of the shadow docket’s critics are disappointed progressives. Will Baude, who coined the term, is a conservative former clerk to Chief Justice Roberts; Donald Ayer was the number-two official at the Justice Department under George H.W. Bush; and the Chief Justice himself joined the Democratic appointees in dissent in a number of the higher-profile 2021 and 2022 emergency docket rulings (including the SB8 case). Ditto the 11 Republican-appointed judges surveyed by the New York Times last fall who “disagreed” that the Court had made appropriate use of the emergency docket during the second Trump administration.

And it wasn’t even two weeks ago that Eighth Circuit Judge David Stras urged the justices to provide more thoroughgoing explanations respecting their rulings on emergency applications in remarks at an event at William & Mary Law School. As ever, if the complaint were really just about outcomes, it would be very strange for the critics to spend so much energy begging the Court to write more—to give longer, more candid, more binding explanations for results they are said to oppose.

Second, by framing “what’s new” entirely as a function of volume, Alito can analyze reform proposals (including mine) solely through the lens of whether that proposal would help reduce the volume of emergency applications the Court receives. And so when, magically, proposals that aren’t actually about the volume problem won’t actually solve the volume problem, Alito throws up his hands. As the chapter closes, “No modest changes” could “stem the tsunami,” which he attributes to polarization, congressional deadlock, presidential frustration, a litigious culture, and “no small measure of hubris on the part of some district court judges.” (He’s going to love the Foreword.)

It’s hard to reply to such a non-responsive response. So let me close by making two points, neither of which should be new to regular readers of this newsletter. First, the emergency docket is a problem not because it exists, but because of how, too often, the Court behaves on it. The critique is, as succinctly as possible, that in too many high-profile cases, the justices are handing down significant rulings on scant briefing with little internal deliberation and little public explanation, in ways that at least appear to be inconsistent with the relevant standards of review, where the inconsistencies have a remarkable tendency of benefiting Republicans, and all while insisting that what little the Court says after such a truncated process should have precedential effects below.

And second, for a Court whose authority depends on diffuse public acceptance that its rulings are principled (if not of the principles themselves), the proliferation of thinly explained precedential rulings in high-profile cases has made it that much harder for that support to be earned. Yes, there are cases to which the critique does not easily apply. And yes, the Court is writing more—as evidenced by the recent run of grants of emergency relief that were accompanied by majority opinions. But numerators are meaningless without denominators. And especially since September 2021, the denominator of emergency docket rulings remains full of cases illustrating some or all of this charge, even as recently as last week. It’s the forest that matters far more than the trees.

So framed, there is virtually nothing in Chapter 8 of So Ordered that actually responds to the underlying critique at least largely because Alito never acknowledges anything other than the size of the forest—including his, and the Court’s, deeply inconsistent behavior therein. Like so much of the Court’s problematic behavior in recent years, Alito’s real defenses are, ultimately, unexplained.

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Today is the First Monday in October, which brings with it the official start of the Supreme Court’s October 2026 Term—and the official close of the October 2025 Term. I’ve written before about how just about nobody (the Court included) keeps accurate term-to-term statistics, mostly because they stop counting the previous term’s data at some relatively arbitrary point over the summer. But just as I did for the October 2024 Term 52 weeks ago today, I wanted to dedicate a post to some truly final data about the October 2025 Term—now that it really is “over.”

Last year’s post explained that the Court set two fairly revealing records on its emergency docket during OT2024—with 140 full Court rulings on applications and 31 grants of emergency relief. OT2025 came very close on the former front, with 133 full Court rulings. The number of grants “dropped” to 21, but that’s still a remarkable number compared to what was par for the course as recently as five years ago (when the averages were closer to 70 full Court rulings and 8-10 grants). And as has been true during every recent term, the divisions on the emergency docket were, once again, homogeneously ideological.

More on all of this below. But first, the news.

On the Docket

The Merits Docket

At 9:30 on Thursday morning, the Court announced three new cert. grants out of the Long Conference—a surprisingly low number. The biggest of the three, by far, is in Rhoney v. Barbosa da Cunha—one of the many pending cases about the Trump administration’s controversial and chaos-inducing claim that it can treat every noncitizen who was never lawfully admitted as an “arriving alien” (even if they’ve resided in the United States for decades) and therefore deny them bond hearings when they are arrested pending removal proceedings.

Curiously, the Court did not follow the government’s advice about which case to use to decide that question—and so took up just the statutory question (whether the administration’s novel interpretation is correct), and not the constitutional question (whether denying bond hearings violates due process). My own view is that this move on the Court’s part can be read in two very different directions. On one hand, a Court that knows it’s ruling against the government on the statute doesn’t need to spend any time on the due process question. On the other, this also allows the Court to resolve the statutory question in the government’s favor without having to immediately decide the massive constitutional question that would follow. One thing is clear, though: Barbosa da Cunha immediately moves to the front of the line as the most important case (currently) on the docket for OT2026—with oral argument likely to occur in January or February.

The Court also added another high-profile Trump immigration case to its merits docket on Tuesday—when, as part of its grant of a stay in the D.V.D. third-country removals case (about which more below), it also added that case to the merits docket, with oral argument now set for December 9. So in just two days, we went from no major Trump cases on the merits docket in OT2026 to two—and a bunch more are necessarily coming.

I also want to flag yet another aggressive new attempt by red state attorneys general to invoke the Court’s “original” jurisdiction, this time in a suit by Louisiana, Arkansas, and Alabama against New York, Massachusetts, and California—challenging those states’ telehealth shield laws insofar as they protect doctors in those states from liability arising from abortions that physically take place in the plaintiff states. Without getting into the tricky interstate federalism questions raised by state telehealth shield laws, the relevant point for present purposes is one I’ve made over and over before: the Court—yes, even this Court—has shown precisely zero interest in allowing its original jurisdiction to be usurped for these kinds of cases, no matter how ideologically charged or politically important the substantive questions may be.

Instead, the line the Court has drawn for fifty years now is one in which the justices exercise their discretion to take these state-v.-state cases if—but only if—the underlying claims are incapable of being litigated in the lower courts. And that’s not true here. We’ll surely get the usual Thomas/Alito dissent from a denial of leave to file (on their consistent view that the Court lacks discretion to not hear these cases), but it takes five votes to grant leave to file, and there’s no evidence that there are likely to be any more than two here.

The Emergency Docket

The Court closed out the October 2025 Term with yet another very busy week on the emergency docket. By my count, there were six full Court rulings on emergency applications—including two grants.

The first grant was in D.V.D., the third-country removals case about which I wrote in Thursday’s bonus issue. As I noted there, what’s especially galling about Tuesday’s stay is that it had no explanation—despite the justices’ apparent newfound commitment to provide opinions of the Court when intervening on the emergency docket. The return to unexplained interventions continued Wednesday night, when the Court granted Tennessee’s request to un-block the execution of Christa Pike (which had been paused by the Sixth Circuit)—over a written dissent from Justice Sotomayor (joined in full by Justices Kagan and Jackson). I suspect you know what happened next: Tennessee botched the execution, and Pike is currently in a Tennessee hospital in critical condition. Don’t get me wrong: The botch may well have happened even if there’d been more time between the justices’ intervention and the procedure. But it’s hard to completely discount the possibility that the litigation chaos … didn’t help.

Three of the other four full Court rulings were denials of stays of execution—including an earlier ruling in the Pike case and two denials to Florida death-row prisoner Curtis Beasley. By my count, the full Court issued a total of 46 rulings during OT2025 respecting stays of execution. 43 of those 46 denied prisoners’ requests for stays of execution (only two of which provoked public dissents); two granted states’ requests to vacate lower-court stays of execution (both of which provoked public dissents from the three Democratic appointees); and one denied a state request to vacate a stay (over public dissents from Justices Thomas, Alito, and Gorsuch). In other words, the Court sided with the prisoner in exactly one of those 46 rulings (2.2%, if you prefer your data that way).

Finally, the Court also denied the application for an injunction pending appeal in Americans for Prosperity Foundation v. Albence, a challenge to the constitutionality of Delaware’s Elections Disclosure Act, which requires organizations spending over $500 on electioneering communications close to an election to publicly disclose donors who contributed more than $100 during the election cycle (the lower courts had rejected the challenge). Given how Delaware-specific the case is, I’m not surprised that the full Court stayed out of it. But the fact that eight days passed between the completion of briefing and the boilerplate denial may suggest that, even though there were no public dissents, there was at least some internal debate. Either way, that Thursday order was the last formal decision from the Court during the October 2025 Term.

The Week Ahead

At 9:30 today, we expect one of the longest Order Lists of the term—a list that will be full of denials of certiorari from the Long Conference, and perhaps some summary rulings and opinions respecting those denials, too. Then, at 10:00, the justices will take the bench for the first time since June—and Chief Justice Roberts will formally open the October 2026 Term.

The first argument of the term is a biggie: In Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, the Court will consider whether local and state governments can sue major fossil fuel companies under state tort law for the local costs of climate change, or whether those claims are impliedly preempted or otherwise displaced by … less-than-explicit federal law. One interesting note here is Justice Alito’s very belated decision to recuse—as the Court informed the parties in a letter filed last Monday afternoon. The Court will also hear argument in three other cases this week—part of an October calendar with only six arguments, total.

And because the emergency docket never stops spinning, it also stands to reason that there will be action on that side of the ledger this week, too. The most significant pending application is the Trump administration’s 41st request for emergency relief (matching the total from the entirety of Trump’s first term) in Trump v. Kingdom—in which Judge Lamberth (D.D.C.) had blocked the Trump administration’s policy restricting gender-affirming care for incarcerated transgender individuals, and a divided D.C. Circuit panel had denied a stay pending appeal. Chief Justice Roberts ordered a response to the application by this Thursday at 4 p.m. ET, so it’s possible we’ll get a ruling by the end of the week—although next week may be more realistic.

Miscellaneous

And in the miscellaneous category, I’d be remiss in not flagging two media stories and a book launch. To the former, there’s Jodi Kantor’s New York Times story from Thursday about Chief Justice Roberts’s increasing inability to escape from public criticism even on the remote Maine island where he spends much of his summer. Not surprisingly, folks’ reactions to Kantor’s reporting have largely tracked their broader feelings about the Court. But it strikes me that it shouldn’t be controversial that the justices are public figures, and that the public should be allowed to hold them accountable in public. Where the line is between public and private is, of course, much messier. But the more the justices are going out on hagiographic public speaking tours, the harder it is, in my view, to claim that they must nevertheless be protected against public criticism—even if many of them have leaned into the public celebrity role more than the Chief Justice has.

Speaking of hagiography, tomorrow is the publication date for Justice Alito’s book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, which has also prompted a series of public and media appearances for the 76-year-old justice. The book (which is really more a compendium of speeches than a monograph) includes a detailed discussion of the emergency docket (both from Alito’s September 2021 Notre Dame speech and a “postscript”), in which I figure … prominently. I’m going to write about at least that part of the book in a separate post—perhaps for tomorrow. So stay tuned.

In the other direction, folks might also find interesting Jay Willis’s piece for Slate (cross-posted at Balls and Strikes) about the evolution of SCOTUSblog. Without getting into the merits of Jay’s arguments, let me just say that I think it’s always important for all of us to do our best to distinguish between true journalism and what, for lack of a better word, may be described as “commentary” on current events. I make no bones about the fact that this newsletter provides commentary on the Court, not journalism about it (even when I’m covering things no one else is). For outlets like SCOTUSblog that provide both, it seems especially important to help readers identify which is which—a distinction that can easily turn on more than just who the author is.

The One First “Long Read”:
Math-ing the OT2025 Emergency Docket

Today’s “long read” will actually be pretty short, because I previewed most of the big takeaways above. Just to remind folks, most Supreme Court datasets reset for the next term when the justices rise for their summer recess—an anachronism that dates back to the pre-1980 universe, in which the Court formally “adjourned” at that point, bringing the current term to a formal close. Since 1980, the Court’s term has been “continuous” (as memorialized in Rule 3 since 1990), meaning any attempt to count everything that happens during a specific term ought to run through the Sunday before the first Monday in October—i.e., yesterday.

Part of why this is more than just pedantry is because of how much busier the Court’s summers have become. Last summer (2025), for instance, there were 11 different grants of emergency relief (in a slew of really important cases), many of which provoked some pretty significant dissents. This summer, there were “only” eight grants, but five of those came with formal opinions of the Court. For a Court that handed down only 56 rulings in merits cases, these are—or at least ought to be—significant contributions to any attempt to assess and characterize the Court’s overall workload.

And adding emergency docket data more generally also helps to provide more context for the Court’s overall behavior: Of the 31 non-unanimous decisions in merits cases, for instance, 13 divided the justices into their usual 6-3 camps. Meanwhile, of the 133 full Court rulings on the emergency docket, 29 provoked at least one public dissent. Within those 29 cases, the most common lineup was also the usual 6-3 split (14 times). Two were 5-4 (Cook and the ballroom case); two were 6-3 the other way (with Thomas, Alito, and Gorsuch in dissent); four had two Republican appointees in dissent; one had two Democratic appointees in dissent; and six had solo dissents (Thomas, Kavanaugh, and Jackson x4).1 As this data suggests, in none of those 29 cases did a justice from the Thomas/Alito/Gorsuch bloc join one of the Democratic appointees in dissent. Once again, the divisions on the emergency docket are uniformly ideological—and only reinforce arguments that the Court is defined by its political divisions.

One last point that should be obvious, but that I’ll say anyway: For as much as the uptick in the Court’s emergency docket began a decade ago, it’s really the last three terms when it’s reached these current proportions—where the emergency docket is producing as many significant, non-unanimous rulings as the merits docket. In other words, there really has been a second wave to the modern emergency docket—one that began before President Trump returned to office last January. When I first started writing about the emergency docket in 2017, a prominent conservative lawyer responded to many of my tweets with a “who cares” GIF. If nothing else, I think we can say “we all care,” and any attempt to assess the business of today’s Supreme Court that doesn’t fully account for the emergency docket is necessarily incomplete.

SCOTUS Trivia: The First Monday … Since 1917

Since I assume that folks have not committed my prior posts to memory, I thought I’d use today’s trivia to re-up a point I’ve written about before—the history of the “First Monday in October.” The full write-up is here, but the short version is that the Supreme Court’s term has begun on October’s first Monday only since 1917—thanks to a 1916 statute.

Over the course of its history, the Court’s terms have begun on the following dates:

• 1790—1801: The First Mondays in February and August (there were two terms per year)

• 1802: [No Term]

• 1803—26: The First Monday in February

• 1827—44: The Second Monday in January

• 1844—73: The First Monday in December

• 1873—1916: The Second Monday in October

The above also gives away the answer to a really obscure trivia question—the last time the Court had two full terms begin in the same year (kind of the same vibe as the “years of the three kings”). The answer is 1844, when the Court held both a January Term and a December Term—because Congress moved the beginning of the term up in June, i.e., in between the two.

Those were the days…

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There have certainly been rulings on the emergency docket that I believe to be more clearly and obviously wrong on the merits. And there have been rulings on the emergency docket that have produced even more harmful effects domestically and/or to the separation of powers. But there’s something profoundly ugly about the D.V.D. case that, unfortunately, was on display again on Tuesday.

Specifically, in another wholly unexplained grant of emergency relief (so much for what had appeared to be a new norm of writing), the Court cleared the way for the Trump administration to resume the removals of noncitizens to third countries without what two lower courts concluded was the legally required opportunity to challenge whether they’d face torture or other unlawful conditions if removed to that country. And although the same order also granted certiorari and expedited consideration of the “merits,” it’s hard to view that as any kind of silver lining. Rather, if the Supreme Court is going to allow the Trump administration to deport people to third countries where they might be tortured, and without robust pre-removal review of how likely that is, it shouldn’t be controversial to believe that the justices should’ve explained why they were doing so before condemning countless immigrants to such a fate.

As I explain below the fold, the lack of any explanation is just one of four things that’s really bothering me about what the Court did on Tuesday. The second, related problem is how the Court has once again completely mucked up the balance of the equities in a Trump-related emergency application—something that’s even harder to understand given the simultaneous grant of plenary review. The third problem is the bizarre way the Court granted certiorari—including by inviting the Solicitor General to just … make up … questions the Court should decide (some of the justices may have one question in mind, in particular).

Finally, there’s the ridiculous way this decision has been portrayed on social media by right-wing lawyers who should know better. Third-country removals can raise, and have raised, some difficult legal questions. But comparing what the district court and First Circuit did in this case to what the district court and Eighth Circuit did in the Missouri redistricting case is comparing apples to tractors—all while completely whitewashing the very real harm that third-country removals can and do cause to a lot of very real people.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court (no later than) Monday. For those who are, please read on.

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The Supreme Court made lots of news last week, and we’ll cover all of it below in the “On the Docket” section. But I’m also thrilled to use today’s “Long Read” to introduce my new book about the Court, The Court We Need: What’s Really Wrong With the Supreme Court—and How to Fix It. The book is due out from Viking Books (an imprint of Penguin Random House) on Tuesday, May 4, 2027, but it’s available for pre-orders now.

In a nutshell, the book argues that the real problem with today’s Court is that it has become unaccountable to any other institution of government—free to do just about whatever it wants, whenever it wants. And that’s new. For most of the Court’s history, the justices were active participants in a robust, ongoing conversation with Congress, the executive branch, and the people—and their power grew out of that dialogue, not in spite of it.

After tracing how the Court we had (Part I) became the Court we have (Part II), the book makes the affirmative case for the Court we need (Part III). That case is deeply skeptical of proposals to weaken the Court (recent events have powerfully underscored the need for an independent judiciary). Instead, it’s focused on replenishing what Justice Kennedy called the Supreme Court’s “reservoir” of trust, which the current justices have drawn down to dangerous levels. To that end, the book closes with some specific reform proposals alongside a broader call to everyone, regardless of how they feel about the current Court, to understand the importance of having a Court that enjoys broad, diffuse public support—to make it easier for that Court to push back against tyrannies of the majority.

More on all of that below. But first, the busy week of news.

On the Docket

The Merits Docket

Today is the Long Conference—where the justices will meet to consider the hundreds of cert. petitions and other non-time-sensitive matters that stacked up over the summer. We expect a partial Order List later this week, at least for those cases the Court is adding to its merits docket for the October 2026 Term. The full Order List out of the Long Conference (one of the longest of the year, mostly comprising denials of certiorari) will come down next Monday, October 5—the first day of the October 2026 Term—at 9:30 a.m. ET.

The Emergency Docket

The full Court1 handed down three rulings on emergency applications last week:

1. Ramey v. Texas: On Wednesday, over no public dissents, the Court denied a stay of execution to Texas death-row prisoner Ker’Sean Ramey.

2. Department of Homeland Security v. League of Women Voters: On Friday morning, over a dissent from Justice Jackson on behalf of all three Democratic appointees, the Court granted the Trump administration’s application for a stay in the SAVE case. The issue there was a Trump administration proposal to link the SAVE database to Social Security records so states could use it not just for employment verification, but to screen voter rolls for any noncitizens registered to vote. Judge Sooknanan had blocked it on the ground that Congress had never authorized the merger of these databases (or the override of our privacy interest in our Social Security information), and a divided panel of the D.C. Circuit had agreed. But in an unsigned, seven-page majority opinion, the Supreme Court concluded that the new rule is authorized by a 1996 immigration law permitting DHS to obtain and disclose citizenship information to states, and that the balance of equities justifies a stay. Justice Jackson’s dissent flagged the problems with both the majority’s merits analysis and its balancing of the equities. But both the majority and the dissent agreed that the immediate effects of the ruling should be fairly modest since we’re already inside the 90-day safe harbor created by the National Voter Registration Act within which states can’t make any systemic changes to their voter rolls (which sure makes you wonder about how the federal government is “irreparably harmed” by the injunction). Ultimately, this is an issue for 2028 more than 2026.

3. People Not Politicians v. Onder: Then, a little after 6 p.m. ET on Friday, the Court (as expected) granted a stay in the Missouri redistricting case—once more turning away an effort by Missouri Republicans to put into effect a new congressional map that the Missouri Supreme Court had blocked. The Court wrote another majority opinion (more about this in a moment), and the unsigned opinion closed with understandable frustration with the district court and the Eighth Circuit: “The District Court and Court of Appeals should not enjoin or otherwise prohibit the use of the 2022 map in the 2026 congressional election in Missouri,” the opinion concluded. “And the District Court and Court of Appeals should not order or otherwise require Missouri to use the 2025 map in the 2026 congressional election in Missouri.” As I suggested last week, two things can be true: the lower courts in the Missouri case absolutely deserved such an unusual slap-down, but there’s also a lesson for the justices about what lower courts can try to justify when the Supreme Court doesn’t explain its emergency docket interventions.

Taking a step back, both rulings on Friday really do appear to reflect a new commitment on the Court’s part to file “opinions of the Court” to accompany at least grants of emergency relief. Consider the dataset of grants of emergency relief in cases in which the Court did not hear oral argument (so, everything except CASA and Cook). During the October 2024 Term, there were 28 examples of such rulings, and exactly three came with “per curiam” opinions of the Court (including none of the last 18). During OT2025, in contrast, there have been 19 examples of such rulings, and we’re now up to eight majority opinions. Even more strikingly, all eight of those have come since May 14—a period during which the Court has granted emergency relief a total of nine times. Only the full Court’s first grant of emergency relief in the Missouri redistricting case on September 10, which came in a fast-moving case, didn’t have a majority opinion to accompany it.

It seems to me that this is happening enough now to be more than a coincidence. And insofar as the Court really is committed to filing opinions of the Court in (almost) every case in which it grants emergency relief, that strikes me as an unequivocally positive development, and one for which the justices should be commended. Just as significant, in my view, is how it appears to provide yet another example of the Court being responsive to at least certain types of criticisms (about which more below).

The Week Ahead

Speaking of the emergency docket, the justices have yet another major application to deal with this week—the latest in the third-country removals case, the one unhelpfully captioned “DHS v. D.V.D.” The third-country removal litigation involves whether noncitizens are entitled to notice and an opportunity to challenge their removal to a country other than the one designated in their removal proceedings on the ground that they’d face torture or other forms of unlawful treatment there. Although the justices had initially stayed Judge Murphy’s preliminary injunction blocking the policy (after the government had overtly violated it), Judge Murphy concluded after full proceedings that DHS’s new rule had to be vacated, and the First Circuit affirmed his final judgment in substantial part on September 18. I’m hoping to write more about this remarkable (and horrifying) case later this week, but I wanted to mention here one truly extraordinary feature of the Solicitor General’s application, first flagged by Chris Geidner: In addition to a stay of Judge Murphy’s ruling pending appeal, the application asks for an “immediate administrative stay.” But then it gets weird:

In light of the ongoing disruption caused by the First Circuit as well as the prior stays granted by the full Court, if the Circuit Justice enters a briefing schedule without also entering an immediate administrative stay, the government respectfully requests that its request for the immediate administrative stay be referred to the full Court. Cf. Rollins v. Rhode Island State Council of Churches, 146 S. Ct. 402 (2025) (No. 25A539); A.A.R.P. v. Trump, 145 S. Ct. 1034 (2025) (No. 24A1007).

In other words, Solicitor General Sauer invited the Court to override Justice Jackson—and cited in support the two recent cases in which (we think) the full Court overrode a circuit justice. I see at least two problems here. The first is that, as I’ve explained before, the Court’s internal processes clearly already provide for circumstances in which the circuit justice’s preferences are contrary to those of a majority of the Court—something that, if anyone outside the Court understands, it’s the Solicitor General. A litigant without inside information as to how the Court works might ask for such unusual relief, but the SG knows—or, at least, should know—better.

Second, going after Justice Jackson, in particular, seems especially ugly given the context. Despite misinformed claims of right-wing commentators to the contrary, there’s no evidence that Jackson has abused her authority as circuit justice to slow-walk or otherwise frustrate the government’s procedural rights in any of these cases. The Rollins example cited in the new application only proves the point: in that order in the SNAP litigation last November, Jackson publicly dissented from the full Court’s extension of an administrative stay (benefiting the government) that she had initially entered.

Here, at least, this gambit seems to have failed. Justice Jackson did in fact set a briefing schedule (the plaintiffs’ response is due by 4 p.m. this afternoon), and no administrative stay issued from her or the full Court. But asking the rest of the Court to preempt a circuit justice is still a brazen escalation by the Solicitor General, and one that hopefully bothers even those justices who are more sympathetic to the government in these cases than Jackson has been.

Miscellaneous

Speaking of Justice Jackson and the emergency docket, the Court’s juniormost member gave the 31st Annual Joseph L. Rauh Jr. Lecture at the University of the District of Columbia on Thursday night, in which she was once again quite publicly critical of the Court’s behavior on emergency applications. “There is a serious concern that the Supreme Court’s modern stay practices are having a disruptive and potentially corrosive effect,” she told faculty and students at UDC’s David A. Clarke School of Law. And although she acknowledged that her colleagues are writing more, these opinions were “still not the full kind of explanation” that comes with rulings on the merits docket. “If we’re not careful,” she argued, “the emergency docket can and will become an end-run around the standard review process.” Going off media reports, Jackson’s remarks sound quite similar to the James A. Thomas Lecture she delivered at Yale Law School earlier this year. Still, it’s striking that one of the Court’s current members continues to criticize her colleagues in public even as at least some of the Court’s behavior has apparently started to shift.

And speaking of criticizing the Court’s use of the emergency docket, I was also struck by reports of what Eighth Circuit Judge David Stras had to say at William & Mary’s annual Supreme Court preview event. According to Bloomberg Law, Stras (who was one of the judges on the panel in the Missouri redistricting case) observed that “They release these short orders that are sometimes really unclear to the circuit courts," and that “It would have been better to have a little bit more, in terms of tell us what to do. . . . What’s off limits and what can we look at?” Again, I don’t think the Court’s September 10 intervention in the Missouri case was remotely ambiguous, but it’s striking that even a highly visible conservative appellate judge is now saying out loud what so many of the Court’s right-of-center defenders have previously refused to acknowledge.

And then there are the rather striking (if hard to fully parse) comments by Justice Gorsuch on Friday at the Tenth Circuit Judicial Conference. Gorsuch’s topic was also emergencies, but he was focused more on … executive power. Gorsuch bemoaned “[t]he rise of the emergency. The perpetual emergency. Everything is an emergency.” According to media reports, Gorsuch complained that “[w]e’ve moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we’ve moved it over to the executive branch. And I just don’t think that's a recipe for a healthy democracy over the long term.” To be sure, Gorsuch has sounded this particular trumpet before. But aside from his very visible vote in the tariffs case, Gorsuch has largely sided with the Trump administration with regard to virtually every (divided) case to reach the Supreme Court since last January—raising at least the appearance that, as fair as his overall critique may be, his actions to actually implement it have been inconsistent.

The One First “Long Read”: The Court We Need

The Book

The Court We Need isn’t the book I planned to write after The Shadow Docket. That book, instead, was going to be all about the Election of 1864—the wildest and most important presidential election that no one knows much about. (I wrote a bonus post about the topic a little over a year ago.) But then, two things happened. First, people actually read this newsletter. Karen and I had launched it back in November 2022 largely as a response to the breakdown of Twitter, where I had provided a lot of legal explainers in the past. Moving to Substack allowed me to put together those explainers in long-form folks could receive in their inboxes, and not just as threaded tweets folks had to find for themselves. It also coincided with the release of my first book—The Shadow Docket, which was set to be published in May 2023. But not only did interest in the newsletter continue past the publication date of the book; interest in the Court continued to grow, and it spiked once President Trump returned to office in January 2025. That interest continues to provoke genuine questions about the Court that I wanted to try and help answer

Second, my superstar agent, Alia Hanna Habib (from The Gernert Company), persuaded me that I had more to say about the Court beyond the shadow docket. So much contemporary discourse about the Supreme Court paints the institution (and the justices) in black and white, with little regard for what is unique and uniquely problematic about the Court of today. But the book’s central claim is that what sets the current Court apart from every one of its predecessors is a majority of the justices’ apparently unshakable belief in the institution’s absolute and inviolable independence, reflected, among other places, in Justice Alito’s 2023 assertion that “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” It’s not a coincidence that the Court has come to this view at the same time as Congress over time abandoned every lever it had used to keep the Court loosely in line for the first two centuries of the Republic. Those levers are the heart of Part I—the Court we had.

There’s no one flash point where everything changed to produce the subject of Part II—the Court we have. Instead, at roughly the same time, Congress gradually gave the Court more and more control over every facet of its work, and the middle of the Court—the irregular bloc of justices who had tended to moderate the more extreme impulses of their colleagues—hollowed out. Those developments may have coincided with 11 consecutive appointments to the Court by Republican presidents (from 1969–1993), but they were not caused by those appointees. Instead, most of what folks criticize when they criticize today’s Court and justices is, as the book concludes, a symptom of the disease—rather than the disease itself.

Part III turns to what, in my view, are the reasons for, and the way to get to, the Court we need. As regular readers of this newsletter already know, although I have little patience for the argument that everything is fine at the Court, I’m similarly skeptical of the two reforms that tend to dominate the conversation among the Court’s critics. Expanding the Court would be seen unequivocally for what it is—partisan political power being used for partisan political purposes, which does precisely nothing for the diffuse public support that is the actual source of the Court’s power. It might provide short-term wins for progressives, but it will only touch off a race to the bottom in which the Court will enjoy ever-less support from the public. Some may see that as a feature; to me, it’s a pretty serious bug.

Likewise, although term limits are, in my view, constitutionally permissible, they amount to a recipe for more predictability in when Supreme Court vacancies arise . . . and very little else. (I’m also not sure they could be implemented by statute except prospectively—which would mean they wouldn’t be a viable reform until we had an entirely new Court.)

What I’m after instead is what Justice Kennedy described to a skeptical congressman in 2001, three months after Bush v. Gore: the “deposit, a reservoir, a storehouse of trust” that the Court draws down every time it hands out a divisive ruling. Kennedy was right about the softness of the Court’s power, but the even more important point is that he had to publicly defend the institution in the first place.

The ultimate goal of the book is to persuade anyone who reads it that we should all be invested in rebuilding those channels of accountability. The justices should have to look over their shoulders before they interpret statutes in ways Congress couldn’t have intended, before they adopt novel constitutional interpretations wildly out of touch with the American people, before they overrule precedents for no reason other than their disagreement with them, and before they behave in ways that raise serious ethical questions. And if they do start looking over their shoulders again, they might—as so many of their predecessors did—act in ways that are meant to promote accountability (like, for instance, starting to write opinions of the Court when they grant emergency relief).

Where You Come In…

As noted above, the book is due out on May 4, 2027 (I’m already working on my Star Wars jokes). And I’ll have lots more to share about the book between now and then. But I’m posting about it today because it’s now officially out in the world for pre-orders. The Viking landing page has links to all of the bookstores already offering it for sale, and pre-orders, as it turns out, are really important to help new books succeed. Every copy that’s ordered before publication day counts toward first-week sales, and that number is what determines (1) whether a book lands on the bestseller lists; (2) how much attention it gets from booksellers; and (3) whether the people who decide what gets reviewed and covered in other outlets will consider including The Court We Need. So if you’re planning to buy the book at all, buying it now does considerably more good than buying it late because of the signal it sends; it’s the single most useful thing you can do for a book you’d like other people to read.

I’m still planning to continue providing the same coverage of the Supreme Court here at One First—the majority of which has been, and always will be, free (even to Yankees fans). But the book is far more than just an edited compendium of One First posts; there’s a lot of original historical research and anecdotes in there, along with a far more comprehensive assessment of the current Court’s shortcomings. And telling a coherent story across a single 110,000-word book written for a (very) general audience is a meaningfully different enterprise from 500 Substack posts published across four years.

And so I hope you’ll consider clicking on that pre-order button—if not for you, then at least for someone who disagrees with you (or me) about the Court. And even if that’s not possible, please consider other ways to express support for the book—whether by requesting it from your local library when it comes out; sharing details about the book and the pre-order campaign with your circles; and, if you’re in a position in which it would make sense, consider inviting me to come talk about it with your group sometime next spring or summer.

The Village

Finally, although there will be a far more comprehensive acknowledgments section in the book itself (don’t worry, mom), I want to say a special word of thanks to a few especially critical people here. As I suggested above, this book would literally not exist without my agent Alia, who talked me into writing it and is so good at her job that she even has a wonderful book of her own for those considering non-fiction writing/publishing. Thanks also to my superlative editor at Viking, Allison Lorentzen, who has been this project’s biggest cheerleader ever since our first (Zoom) meeting in March 2025. As ever, I’m grateful to my army of Georgetown Law research assistants—Ricky Coyne, Grace Kiple, Abby Liman, Alyssa Negvesky, Ava Singh, and Mackenzie Webb—who not only put up with my ridiculous requests, but always make my work better. And just about nothing I do would be possible without the support of my wife and best friend, Karen—who, unlike The Shadow Docket, has promised to actually read this book.

But most importantly, I’m grateful to you—the 100,000+ subscribers to this newsletter. When I finished The Shadow Docket, I really wasn’t in a hurry to write another book about the Supreme Court. But your support for, your interest in, and your engagement with my weekly work on the Court as an institution has been the engine behind the labor that went into getting The Court We Need from an idea Alia had to a completed book on its way to the real world. There’s a lot of you in there, too.

I’ll have much more to share about the book, including some excerpts; some (hopefully fun) opportunities to engage with it; and a schedule of public events and media appearances as we get (much) closer to May. For now, let me just say that I’m really excited to get to share all of this with you, and I hope you’ll want to read the book when it’s out in the world in a little over seven months.

SCOTUS Trivia: “Supreme Court Trivia”

This one is a little meta, but I couldn’t resist. For my birthday this past Saturday (my last prime number birthday until I turn 53), my older sister, Liz, sent me the below “Supreme Court Trivia” game—which, candidly, I’d never seen before:

My daughters kept asking me multiple-choice questions from the cards until I got one wrong. That took 27 cards—when I flubbed the number of days President Clinton took to nominate Ruth Bader Ginsburg to the Court when Justice White retired in 1993. (Honestly, I’m okay that I didn’t know that one.)

Your mileage may vary, but it was a remarkably thoughtful gift from my older sister—and something anyone who actually reads this particular section of my newsletter on a weekly basis will likely enjoy.

And unlike The Court We Need, this one’s ready to ship now.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there, especially if your baseball team ended up in last place for the first time since 2003.

One of the questions that’s come up in response to this whiplash is how an injunction from the district court isn’t automatically covered by the ruling the Supreme Court handed down on September 10 in the Missouri case’s second trip to the Court—where it stayed the district court’s temporary restraining order (which would’ve required the same thing as its new injunction). To help explain why the Supreme Court’s stay covered only the TRO, and not the injunction, I thought it would be helpful to do a bit of a deeper dive into the difference between these two (very similar) types of court orders—and why those differences help to explain why a stay of one doesn’t necessarily foreordain the merits of the other, even if it should have here.

Part of why it’s useful to understand the key differences between TROs and injunctions (especially “preliminary” injunctions) is because two of the most important differences between them have increasingly collapsed. And whether that development is a good or bad one (I’m ambivalent), it also muddies the waters a bit when it comes to how much wiggle room a district court really should have in subsequent proceedings in the same case once an appellate court has acted to freeze (“stay”) a TRO.

To make a long story at least a bit shorter, a stay of a TRO is not a stay of an injunction, because the two orders differ in how long they last, how much process precedes them, and whether an appellate court can touch them at all. But those differences are collapsing—and that collapse, not the formal distinction, is the real (procedural nerd) story folks should take away from Missouri.

For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Supreme Court. For those who are, please read on.

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As with my other stream-of-consciousness posts, my apologies for any errors resulting from the speed (or, frankly, anything else).

1. What Did the Eighth Circuit … Do?

I’m going to assume folks have some familiarity with the background to the Missouri redistricting mess. If you could use it, here’s my full explainer from before the Supreme Court ruled on Thursday, September 10; and here’s my breakdown from last Monday of what it all meant. There’s a lot more detail (and links to all of the relevant developments) in those posts.

To make a very long story short(er), the Missouri Supreme Court had held that Missouri cannot use “HB 1”—a congressional map adopted by the state legislature last summer—because it must go through a popular referendum (slated for this November’s election) before it can become law. Instead, Missouri had to use its not-quite-as-gerrymandered map from 2022. Missouri had asked the Supreme Court to put HB 1 back into effect by pausing that ruling, but Justice Brett Kavanaugh, acting by himself, said no. That was the first trip to the Supreme Court—where it was Missouri asking to put HB 1 back into effect.

Then, in the case now at issue, a Republican congressman sued in federal court to force Missouri to use HB 1—claiming that it would violate the federal Constitution to have a general election conducted pursuant to a different map than the primary (my earlier post explained in detail why this argument is flatly inconsistent with the Supreme Court’s precedents—and why it would also defy common sense). A district court nevertheless sided with Missouri, and issued a temporary restraining order requiring Missouri to use HB 1 (and barring it from using the 2022 map), which, among other things, led to all kinds of fun contempt proceedings before the Missouri Supreme Court.

The folks who initially succeeded in forcing a referendum on HB 1, who were the “intervenor-defendants” in the federal suit, then appealed that ruling to the Eighth Circuit, and sought a stay of the TRO pending appeal. The Eighth Circuit denied the stay, suggesting (ironically given tonight’s ruling) that it didn’t have jurisdiction. The Supreme Court then very quickly did what the Eighth Circuit didn’t—it issued its own stay of the district court’s TRO, a stay that will remain in place, and keep the TRO frozen, until and unless the Supreme Court itself does something further. That was the second trip to the Supreme Court—this time, with the intervenor-defendants asking the justices to put HB 1 back on hold (which they did).

That brings us to tonight’s ruling. Ostensibly resolving the TRO appeal over which it earlier claimed it lacked jurisdiction, the Eighth Circuit purported to “affirm” the district court’s TRO (the one the Supreme Court stayed on September 10). By itself, that would be a nothing-burger; we’ve seen lots of prior cases where courts of appeals have affirmed injunctions after they were stayed (indeed, the First Circuit just did something kind of like this last week in the third-country removals case—affirming vacatur of a rule even after the Supreme Court stayed a preliminary injunction against it). Affirming a stayed injunction isn’t per se problematic, all the more so because it has no effect on the status quo. The wild part here is what the Eighth Circuit ordered as a remedy: instead of just affirming the TRO and letting the appeals process play it, the court of appeals remanded the case with instructions to the district court to enter a permanent injunction requiring the use of HB 1.

Time is too short to get into all the ways in which this move is procedurally bananas, but let’s just say that I’m unfamiliar with any prior case in which a court of appeals, on a TRO appeal, ordered the district court to enter permanent injunctive relief. (One might say the Eighth Circuit is “Fifth Circuit-ing,” but I can’t remember even the Fifth Circuit pulling this move.)

The relevant point for present purposes is that such an injunction from the district court would be different relief from the TRO that the Supreme Court already stayed on September 10. In other words, and quite deliberately, the Eighth Circuit is instructing the district court to issue relief that won’t be subject to the Supreme Court’s earlier stay—never mind that it certainly appears to be flatly inconsistent with the reasons why that stay must have been issued. The upshot is that, if this is the last word, it would mean that, by early next week, the district court will enter a permanent injunction requiring Missouri to use HB 1 for its 2026 congressional elections (even though folks have already started voting using the 2022 map).

2. What Happens Next?

Perhaps recognizing the absurdity of what it was ordering, the Eighth Circuit built in a bit of a pause button. Even as its order directs the district court to issue a permanent injunction, it also directs that same court to “administratively stay” such an injunction until 5 p.m. CT next Monday (September 28), ostensibly “[t]o allow for appellate review.” Thus, the intervenor-defendants in the federal case (the ballot referendum sponsors) have a full week to not just seek emergency relief from the Supreme Court, but to obtain it (of course, Justice Kavanaugh, as Circuit Justice for the Eighth Circuit, could issue an administrative stay of his own to give the Court more time to rule).

In the interim, nothing can or should change on the ground. Voters who have not yet returned their ballots may now pause out of an abundance of caution, but there is, as yet, no judicial order in effect that would allow Missouri to try to implement HB 1. The 2022 map is, for the moment, still the map in effect.

I have no doubt that the intervenor-defendants will quickly appeal the Eighth Circuit’s ruling to the Supreme Court and seek emergency relief (probably in the form of a vacatur). And I have very little doubt that the Supreme Court—yes, even this Supreme Court—will grant it. If there had been any appetite in the Supreme Court for these kinds of shenanigans, we would’ve seen it in the Court’s ruling on September 10, when the justices were first asked to stay the district court’s TRO, and when anyone who wanted to see Missouri use HB 1 this cycle could have conjured some reason to sit on their hands. It’s also telling that, when the issue first came to the Court on Missouri’s application to stay the Missouri Supreme Court’s ruling, Justice Kavanaugh was so confident that none of his colleagues wanted to do so that he denied the stay by himself.

And when the Court agreed to step in and block the district court’s TRO on September 10 (something that’s a lot proactive more than a passive denial, as in the first iteration), there were no public dissents from the grant. As I wrote at the time, that suggests that no justice was publicly willing to upend Missouri’s congressional districts at this late hour—or to let a lower federal court override the Missouri Supreme Court’s construction of its own state law. It is exceedingly difficult to see how anything the Eighth Circuit said in its ruling tonight will alter that calculus in the new map’s favor; if anything, the passage of time (and the distribution of ballots) only further augurs in favor of a stay—and of preserving the Missouri Supreme Court’s directive to use the 2022 map this November.

Of course, you can never be 100% certain about this Supreme Court. But every single tea leaf in the Missouri litigation so far has pointed in this direction—and rather emphatically, at that.

3. What’s the Broader Lesson?

I hope my relative confidence about how this ends doesn’t obscure how ridiculous the Eighth Circuit’s ruling is. It’s procedurally bonkers; it’s substantively dangerous; and it’s a far more serious instance of a lower court acting in direct tension with the Supreme Court’s directive than any of Justice Gorsuch’s three examples of “defiance” in his NIH concurrence last August.

Technically, the entering of a permanent injunction is not barred by the stay the Supreme Court issued on September 10—and so it’s not outright defiance of the justices’ ruling (again, because the stay operated only on the TRO, and not any subsequent relief). But as the justices wrote last summer, “Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.” Clearly, the issuance of a stay of the TRO in this same case just 11 days ago should have “inform[ed]” how the Eighth Circuit acted here. And it’s willful blindness on the court of appeals’ part to suggest otherwise.

That said, this is also yet another example of the dangers of Supreme Court rulings on the emergency docket that come with no analysis. Had the justices provided even a sentence or two about why they were staying the district court’s TRO (as they did in explaining the denial of a stay in the mail-in ballots case last Monday), it would have been harder for the Eighth Circuit to manufacture any wiggle room and justify its remand here. I still think the Supreme Court’s unexplained September 10 order was sufficiently clear about the message it was sending, but as the dispute over Missouri’s map returns to the Court for the third time this month, it’s worth not losing sight of the justices’ own responsibility for not previously nipping this in the bud.

As for how to do that in its next ruling, I’m reminded of an especially notorious California death penalty case from the 1990s—that of Robert Alton Harris.

Harris was scheduled for execution by cyanide gas on Tuesday, April 21. On April 17, on behalf of Harris and every other death-row inmate in California, the ACLU had brought a class-action suit challenging the use of such gas as cruel and unusual punishment under the Eighth Amendment. One day later, a San Francisco–based district judge granted a temporary restraining order—giving Harris a ten-day reprieve. On Monday afternoon, after a brief pause for Easter and the second night of Passover, a divided three-judge panel of the Ninth Circuit reversed the lower court’s restraining order, only to have the full court of appeals restore that ruling and impose multiple separate stays of Harris’s execution just before midnight.

Three hours later, close to 6:00 a.m. Tuesday morning in Washington, the Supreme Court vacated both stays, over dissents from Justices Blackmun and Stevens. Harris was brought to the execution chamber within the hour, and was strapped to one of the chairs, when the proceeding was stayed again, this time by Ninth Circuit Judge Harry Pregerson. Unamused, the Supreme Court responded by not only vacating Pregerson’s stay, but also stating that “[n]o further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this Court.” As I wrote in The Shadow Docket, “California could have dropped Harris from a helicopter at that point; the Supreme Court wasn’t going to let anyone else intervene.”

Whatever one thinks of the Harris episode, the Court would do well, when (not if) it intervenes in this latest Missouri midterm mishegas, to provide at least a bit of explanation for why it’s doing so. And given the Eighth Circuit’s behavior, it may want to adopt similar language to what it had written in 1992—so that there isn’t a fourth trip from Missouri to the Court before November.

Sigh.

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The Trump administration’s sustained campaign against the press over the last twenty months reached a new low on Friday, when President Trump banned CNN, MS NOW, and Politico from the White House for overtly viewpoint-based reasons. It’s not the first time the administration has brazenly interfered with the freedom of the press: The Associated Press lost its access to the Oval Office and Air Force One because it refused to drop the term “Gulf of Mexico,” but the White House called that a matter of managing a crowded press pool; the Pentagon conditioned credentials on rules a district judge has since held to be unconstitutionally vague, but the stated concern behind them was to prevent the solicitation of classified information; the FCC opened investigations and license reviews in seeming retaliation against (and to chill) editorial decisions the President dislikes, but the actual paperwork invoked news distortion, equal time, and even anti-discrimination law; public and international broadcasters lost their funding, but under the guise of reallocating priorities through the appropriations process; the Justice Department rescinded the policy shielding reporters from subpoenas, but framed it as an ordinary revision of internal guidelines; and the list goes on (and on … and on).

Even though many of the justifications for these actions have appeared to be transparently pretextual, they’ve forced those challenging the government’s actions to prove what the government was actually doing rather than to simply describe it. Some of those challenges have succeeded; others remain pending; but the rulings that have come down have been about process and pretext, not principle; and many are still pending appellate review.

Then came Friday. In a Truth Social post, Trump announced that he was barring CNN, MS NOW, and Politico from the White House altogether because of their “constant ‘reporting’ FAKE NEWS,” and he warned that other outlets could be next. By Saturday morning, the ban had been given teeth: reporters from all three outlets showed up for work; they were turned away at the gate; and they had their credentials taken from them, in one case by a Secret Service agent at the entrance. And early this morning, reports surfaced that the outlets will be suing to challenge their bans—perhaps as early as today.

The Supreme Court has not always drawn the clearest lines when it comes to the First Amendment and press freedom. But this is just not a close case. Whatever other leeway the executive branch may have to restrict press access on national security grounds, hand-picking three outlets to exclude from what the Court’s jurisprudence calls a “nonpublic forum” because of the President’s disagreement with the putative viewpoint of their reporting is about as close to a textbook violation of the existing precedents as it comes. And the finer points of the Court’s First Amendment doctrine aside, a free press wouldn’t mean very much in a world in which only those whose reporting the government likes are in a position to meaningfully cover it.

More on that below. But first, the (other) news.

On the Docket

The Merits Docket

We’re one week out from the “Long Conference”—the justices’ first formal gathering since rising for their summer recess at the end of June, where they’ll dispose of the hundreds of cert. petitions that have stacked up over the summer (and probably grant a handful). One piece of merits docket news before then (which I just plain forgot to cover last week) is that the Court has dismissed one of the cases that had been set for argument in October—Genalo v. Black, an important case about the Fifth Amendment limits on immigration detention pending removal. New York Governor Kathy Hochul recently pardoned the one remaining respondent for the New York state offense that rendered him removable in the first place, which mooted that question at least as applied to him (if he can’t be removed, he can’t be detained pending removal). Among other things, that means the Court is down to only six arguments during its October sitting—across five days. One of these days, we might actually have a serious discussion about how much the Court’s docket has shrunk—and why it matters.

The Emergency Docket

Last week was, of course, another busy week on the emergency docket. Monday night brought with it the mail-in ballots ruling, which I wrote about on Tuesday. The Court also denied two stays of execution over no public dissents—one on Wednesday in the case of Texas death-row inmate LeJames Norman; and one on Thursday in the case of Alabama death-row inmate Jeffery Lee (whose execution the Court had refused to un-block earlier this summer). The denials were the 123rd and 124th full Court rulings on emergency applications during the October 2025 Term—moving it past the October 2023 Term into second place all time in my database (there were 140 full Court rulings during OT2024).

The Week Ahead

We’re likely to see even more action on the emergency docket this week. The Trump administration’s application in the SAVE case has been fully briefed since Wednesday—and could produce a ruling at any time. The respondents in the messy interstate surrogacy application I discussed last week filed their opposition on Friday—which clears the way for a ruling sometime this week. There’s a new application from Americans For Prosperity challenging Delaware’s election-related donor disclosure rules that is likely to get the full Court’s attention; Justice Alito has called for a response by 4 p.m. ET on Wednesday. And former Solicitor General Paul Clement has filed an application on behalf of Arizona seeking to immediately get out from under a district court ruling placing the state’s prison healthcare system under the authority of a court-appointed receiver; Justice Kagan has called for a response by 4 p.m. ET on Friday.

That three of these don’t involve the Trump administration should be all the evidence anyone needs that the unprecedented volume on the emergency docket hasn’t been, and won’t be, a Trump-specific phenomenon.

The One First “Long Read”:
Newsgathering and the First Amendment

The constitutional law regarding newsgathering may not be fully settled, but it has a number of waypoints. For starters, the press has no constitutional entitlement, as the Supreme Court put it in Pell v. Procunier, to “special access to information not available to the public generally.” Houchins v. KQED held effectively the same thing with respect to physical access to a government facility. So far as I know, there is no case holding that a reporter can demand entry to the building where officials work solely because they are on the job.

But there are plenty of cases outlining what the government can’t do to the press. As relevant to the latest White House contretemps, the relevant framework is “forum” doctrine, which sorts government property into categories and applies varying degrees of scrutiny based upon what kind of forum is at issue. Traditional public fora (think public streets and parks) can be subject to reasonable restrictions on the time, place, and manner of speech (e.g., no loud noise after 10 p.m.); whereas content- and viewpoint-based discrimination are subjected to (and usually fail to satisfy) strict scrutiny (where the restriction on speech must be narrowly tailored to achieve a compelling governmental interest).

A “designated” public forum is created when the government intentionally opens otherwise nonpublic property for general, indiscriminate communicative activity—such as a school auditorium used for a public meeting; a municipal theater; state fairgrounds; or public university facilities. A “nonpublic” forum, in contrast, is one that is not a traditional or designated public forum, and that’s typically opened only selectively or for a limited purpose. This distinction matters for content-based restrictions—which are generally subjected to strict scrutiny in a designated public forum, but need only be reasonable in a “nonpublic” forum. And, of course, some government spaces aren’t fora at all—because the government hasn’t opened them up for any speech whatsoever.

This last category matters because, when President Trump excluded the Associated Press from the Oval Office, Air Force One, Mar-a-Lago, and other restricted spaces, it’s the ground on which a divided D.C. Circuit panel stayed the district court’s injunction against that exclusion pending appeal. Here’s the key excerpt from Judge Rao’s opinion (which Judge Katsas joined, and with citations omitted):

When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint. In Sherrill, we held that the “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the [F]irst [A]mendment guarantee of freedom of the press” attached, requiring that “access not be denied arbitrarily or for less than compelling reasons.” We recently explained that “[a]lthough Sherrill predated modern forum analysis, its description of the Press Area fits the definition of a nonpublic First Amendment forum.” Thus, “access to the White House Press Area can be restricted as long as the restrictions are viewpoint neutral and reasonable.” Sherrill and Ateba stand for the proposition that White House spaces generally open to the press are nonpublic fora, and therefore access cannot be restricted based on viewpoint.

On the other hand, we have never suggested that there are any First Amendment restrictions on “the discretion of the President to grant interviews or briefings with selected journalists.” In deciding which journalists to speak with, the President may of course take into account their viewpoint. If President Trump sits down for an interview with Laura Ingraham, he is not required to do the same with Rachel Maddow. The First Amendment does not control the President’s discretion in choosing with whom to speak or to whom to provide personal access. It is a time honored and entirely mundane aspect of our competitive and free press that public officials “regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression.”

The panel then applied that distinction to hold that the AP was unlikely to succeed on its newsgathering-based challenge to the exclusion. And the panel also suggested it was unlikely to succeed on its retaliation claim because “Picking and choosing journalists on the basis of viewpoint might be actionable in some contexts, such as when the White House opens its facilities ‘to all bona fide Washington-based journalists,’ but this is not one of those circumstances.”

Judge Pillard wrote a lengthy dissent from the grant of a stay—with which, I should confess, I largely agree. But the relevant point for present purposes is that, as the quotes from above underscore, categorically excluding CNN, MS NOW, and Politico from the White House is exactly what Judges Rao and Katsas distinguished in the AP case. In other words, even from the perspective of judges who have, frankly, gone out of their way to rationalize this administration’s actions against media outlets that won’t sing its tune, there’s still a material difference between excluding an outlet from private sessions with the President and from spaces in the White House that aren’t generally used for communicative activity, versus excluding them from the Brady Press Briefing Room—a space that exists for the express purpose of providing credentialed journalists with access to the President and the White House.

Whatever one thinks of Judge Rao’s forum analysis in the AP case, it seems axiomatic, as she all but held, that the Press Briefing Room itself is, and the spaces the White House provides to the credentialed media on “Pebble Beach” (where cameras are set up on White House grounds but outside the building itself) are, “nonpublic fora” under the Supreme Court’s First Amendment jurisprudence. And whether or not viewpoint discrimination in such spaces is per se unconstitutional (as Judge Pillard argued in her dissent), or “merely” subject to strict scrutiny, the result would be the same; categorically excluding these outlets (1) does not advance any compelling governmental interest; and (2) is certainly not “narrowly tailored” to achieving one.

Beyond the substantive First Amendment violation resulting from the obvious viewpoint-based discrimination, President Trump’s exclusion of CNN, MS NOW, and Politico also raises serious due process concerns, at least under the D.C. Circuit’s jurisprudence. As the D.C. Circuit has recognized for a half-century, when the government moves to deny First Amendment protections to reporters, that implicates the Fifth Amendment, as well—and “notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon first amendment guarantees.” Indeed, when Jim Acosta’s press pass was revoked during the first Trump administration, the ground on which a district court ordered it restored was a failure to provide due process—rather than a First Amendment violation. So quite apart from the straightforward First Amendment question raised by categorically excluding CNN, MS NOW, and Politico, there’s also the way President Trump did it, i.e., without any due process whatsoever.

To be sure, prior efforts to challenge the Trump administration’s interference with the press have not all succeeded, in at least some cases because litigants have been unable to demonstrate that the government’s profferred justifications were in fact pretextual. Here, though, President Trump has done that work for them, not just in what he said, but in the reporting that his Truth Social post “blindsided the press office,” which will certainly be deployed to disprove any argument that this was actually a considered policy choice on the White House’s part. That also means, among other things, that a standalone retaliation claim should also be on firmer footing than it was in the AP case.

And President Trump saying the quiet part out loud extends past the viewpoint-based nature of his actions, for he also threatened every other credentialed media organization by suggesting “Other Fake News Media Outlets to Follow.” In so “truthing,” Trump not only drove home the underlying constitutional flaw in his actions, but he underscored their stakes, too. Whatever folks think about the three outlets Trump singled out here (and remember that I’m a CNN analyst), a world in which the President can categorically exclude any outlet from the White House solely because he dislikes their reporting is one in which any president can construct a press room full of sycophants and other sympathetic mouthpieces for the government’s policies. This isn’t about individual reporters or reports being punished; it’s about chilling critical journalism about the executive branch of the United States.

The news this morning is that CNN, MS NOW, and Politico are suing to challenge the ban, perhaps as early as later today. That’s good, and they should (and almost certainly will) win. But they shouldn’t have to litigate this at all. Once again, we’re seeing what happens when an executive branch can operate free from any traditional political constraints—where two of the nation’s largest cable news outlets have been forced to set up cameras literally across the street from the White House grounds while their press colleagues cover the government from within, and for no reason other than writing stories the President doesn’t like. Whatever freedom of the press means, that ain’t it.

SCOTUS Trivia:
Potter Stewart’s “Or of the Press”

On November 2, 1974, as part of Yale Law School’s sesquicentennial convocation, Justice Potter Stewart delivered an address titled “‘Or of the Press.’” In the wake of a flurry of high-profile legal and political developments respecting the press (not the least of which was the Supreme Court’s decision in the Pentagon Papers case), Stewart set out to demonstrate that “the established American press in the past ten years, and particularly in the past two years, has performed precisely the function it was intended to perform by those who wrote the First Amendment of our Constitution,” and that “this thesis is supported by the relevant decisions of the Supreme Court.”

The speech was published by the Hastings Law Journal in 1975, and is worth a read today. One passage, in particular, has always stayed with me:

So far as the Constitution goes, the autonomous press may publish what it knows, and may seek to learn what it can.

But this autonomy cuts both ways. The press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.

The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society. Newspapers, television networks, and magazines have sometimes been outrageously abusive, untruthful, arrogant, and hypocritical. But it hardly follows that elimination of a strong and independent press is the way to eliminate abusiveness, untruth, arrogance, or hypocrisy from government itself.

Those words seem even more important today. And although this isn’t really “trivia,” some things are more important.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there, especially from frontal assaults on press freedom.

Challenging the scope of military jurisdiction has been a common thread of a lot of my academic and litigation work, going all the way back to the very beginning of my career. I had the privilege of getting to work on Hamdan v. Rumsfeld (the jurisdictional challenge to the first iteration of the post-9/11 military tribunals at Guantánamo) starting when I was a 2L in the spring of 2003. I wrote a series of articles about the limits on military jurisdiction as a relatively more junior law professor (including my favorite—“Military Courts and Article III,” which was published in the Georgetown Law Journal in 2015). And on the court-martial side, I’ve been invested in the retiree issue since 2018, shortly after we saw the beginning of the (still unexplained) flurry of recent courts-martial of retirees.

Through it all, I’ve never had occasion to reflect on why I’m so invested in questions of military jurisdiction—or so adamant about the need to properly cabin it. But given the extra time I had yesterday without either (1) a roundtrip drive to Richmond; or (2) an oral argument, I thought I’d use today’s bonus issue to flesh out some of my thoughts. I’ll unpack this in more detail below the fold, but the basic gist is that my training in college instilled in me a deep aversion to exceptional legal systems—no matter how well-designed they are or how well-intentioned the players within them may be.

The courts-martial of today may well provide far more than the “rough form of justice” that Justice Black indicted the military for dispensing in the 1950s. But there are still deep, profound normative reasons why, to quote a different 1955 majority opinion, “Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’” Otherwise, it gets a lot easier to defend expanding the exceptional courts to cover ever more entirely ordinary cases—even, if not especially, when there’s no reason why the ordinary courts couldn’t handle those cases, too.

For those who aren’t paid subscribers, we’ll be back Monday with our continuing coverage of the Supreme Court. For those who are, please read on.

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Without question, this is a very big decision (and a big loss for President Trump). It’s also not an especially surprising ruling, even for this Court. As my Georgetown colleague Marty Lederman documented in multiple blog posts, and as a really excellent amicus brief by Professors Rick Hasen, Ned Foley, Pam Karlan, and Doug Laycock demonstrated in detail, the government had (and made) both an exceptionally weak case on the merits and an even weaker case on the “equities” of emergency relief—even relative to other emergency applications that, in my view, should also have been denied. And although the Court wrote only three sentences (sigh), two of those sentences signaled the majority’s agreement on both of those points: “The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.” Just to say it out loud, those are two independently fatal obstacles to relief.

But despite the (unfortunate) brevity of the Court’s order, I wanted to write a quick post about the decision because I think we still learned at least three important lessons from the nine pages the justices handed down last night—one about the majority; one about Justice Kavanaugh (who wrote a one-paragraph concurrence); and one about Justices Thomas and Alito (who filed an eight-page dissent penned by Alito).

What We Learned from the Majority

A lot of media outlets reported the ruling as 7-2. As ever, I think that’s a mistake—not because it’s necessarily wrong, but because it isn’t necessarily right. It seems to me that we only know three things for a fact: First, Justices Thomas and Alito were publicly in dissent. Second, Justice Kavanaugh was publicly in the majority. And third, at least five other justices were also in the majority (because of the daylight between the majority’s cryptic sentence on the merits and what Justice Kavanaugh wrote in his concurrence, about which more shortly). Math being math, that leaves the possibility that a third justice voted for the stay internally, but chose not to make their views public—that it was 6-3, not 7-2. We won’t know (for a long time) if this happened, and it’s almost certainly a distinction without a meaningful difference in the interim. But as with so many things about the Court’s emergency docket, it’s important to distinguish between what we know and what we think.

To me, the more significant math point here is that there’s no way it was 5-4. And so despite Justice Kavanaugh’s (surprising) support for the USPS’s authority here, my own read of the cryptic order is that five other justices publicly signaled that they do not believe the government will ultimately succeed in challenging Judge Talwani’s injunction. If that was all the Court had written, it would be possible to interpret that as a point about the equities—that five justices believed the government would never be able to displace preliminary relief in this case (which, again, would make sense given the imbalance of the equities here, and would not necessarily be expressing a view on the validity of the USPS rule).

But given that the Court added a separate sentence about the equities, it sure seems to me that a majority of the Court wanted to signal something bigger—that the government isn’t going to win this case, because it’s unlikely five justices will ultimately vote to sustain the USPS rule even “on the merits.” If so, that’s a really important message not just to the Trump administration, but to lower courts. Unlike the Missouri redistricting dispute from last week, this case surely will go forward. And for better or worse (and my own view is the former), five justices other than Justice Kavanaugh have now put a pretty heavy thumb on the scale against the government on the merits.

What We Learned from Justice Kavanaugh’s Concurrence

Justice Kavanaugh, once again to his credit (I’ve been consistent about this), wrote separately to explain his position. Taking out his citations, here’s what he said:

In my view, based on the briefing the Court has received at this interim stage, there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority. But applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections. For that reason, I concur in the denial of the application for stay.

Again, there’s a lot going on in three short sentences. The first sentence sure reads like a response to the majority—that, unlike his five (or six) colleagues who also voted to deny the stay, he thinks the USPS may win on the ultimate merits of the validity of the rule. If this is a response to the majority, then I think it only reinforces the reading that the majority was suggesting exactly the opposite. For what it’s worth, I think he’s completely wrong on the merits. But the fact that he felt impelled to make that point is at least decent evidence that the majority thinks so, too.

The second sentence is what I find most striking. I would’ve thought that the fact that “state and local election officials do not have sufficient time to reasonably implement the rule before the elections” is an argument about the equities—that, even if the government is likely to ultimately prevail, the harms and chaos from rushing the rule into effect are reason enough to keep the rule paused through November. But Justice Kavanaugh frames it as a procedural APA violation instead. That matters in at least two respects.

First, Kavanaugh may be avoiding the equities because otherwise he’d have to explain why Purcell doesn’t push in exactly the opposite direction—since he has so often deployed that “principle” to keep federal courts from doing exactly what Judge Talwani did here, i.e., blocking an eleventh-hour legislative/executive change to voting rules. Second, and Purcell aside, this approach seems to open the door to other challenges to late-breaking federal changes to election procedures on procedural APA grounds—where the argument is that the change is procedurally unlawful because it is so late in the game. At least off the cuff, that seems like an interesting way to convert the malleability of equities balancing in election cases into more objective procedural harms, at least when the federal government is the defendant. But smarter folks than me will need to think about how that can and would work in practice.

What We Learned from Justice Alito’s Dissent

And then there’s the dissent.

I have been quite critical before of many of Justice Alito’s separate opinions on the emergency docket. He has a tendency to take liberties with the facts (or procedural posture); to make brazen claims without substantiation; and to insinuate unclean hands on the part of lower courts, litigants, and/or his colleagues in the majority without doing the work of proving it. Well, all of those tendencies were on display in these eight pages, along with a rather stunning disregard for the interests of eligible voters in having their lawfully cast votes counted. Indeed, to the concern that the rule would disenfranchise millions of voters, Alito’s only response was that “I take that problem very seriously, but it is not enough to convince me to deny the application.”

Why not? Alito offered two reasons, and they’re both remarkably tendentious.

First, Alito wrote that “the States disagree about the nature of these effects. Twelve States supported the rule below and asserted that compliance at this time is practicable.” As Professor Derek Muller explains in a lengthy post over at Election Law Blog, this is (1) a remarkable tense-change to muddy what twelve red states actually argued below; and (2) a non-sequitur given that the ability to comply with the rule is radically different from whether that compliance will lead to massive disenfranchisement of eligible voters.

Second, and worse, Alito wrote that “the plaintiff States and the courts bear a substantial share of the blame for the rule’s timing.” As the Brits would say, this is utter bollocks. Alito tried to spin the plaintiffs’ litigation behavior and the district court’s rulings as preventing the government from moving forward in putting out the USPS rule, but that’s just not a fair summary of the record. As Rick Hasen pointed out last night, “the district court allowed USPS to keep working on its rule and its (still nonexistent) portal for voluntary use by states.” Indeed, the fact that the USPS issued the rule the Supreme Court refused to unblock last night while the executive order was still enjoined should be all of the proof anyone needs that Alito is wrong to insinuate otherwise, to say nothing of the government’s inability to get the critical electronic portal online before voters started … voting. (For all of the ugly shots folks on the right have taken at Judge Talwani, the denial of a stay is a pretty significant vindication of her rulings in these cases.)

Alito also blamed his colleagues, noting that “this Court spent from late July to the end of August drafting nearly 40 pages of opinions, including two dissents, despite the Government’s public notice that it would not publish a final rule while subject to the injunctions, and its representation that it had a strong interest in issuing its rule in early- to mid-August to allow time to implement it.” As Alito concluded (read this sentence carefully), “The plaintiff States cannot claim the timing of the rule tilts the equities in their favor when they, and courts hearing their claims, are responsible for so much of the delay.”

Of course, it is ludicrous to blame plaintiffs for delays Alito attributes to courts. It’s even more ludicrous to do so when the Supreme Court’s own prior ruling in this case (which Alito almost certainly joined) asserted that the earlier injunctions had to be stayed because the plaintiffs’ suits were filed too early. And it’s tendentious to the extreme to claim that the point that putatively “tilts the equities in [plaintiffs’] favor” is the timing of the USPS rule, not the massive disenfranchisement that neither the government nor Alito ever publicly disputed would occur were it to go into effect. It may not surprise anyone that this is where Alito and Thomas are. But it’s striking to see it captured in writing so plainly and unmistakably.

***

In the end, it’s heartening that only two justices were willing to say these things out loud. And it’s even more heartening that a majority of the Court was unwilling to abide President Trump’s transparent effort to make it harder for a large number of lawfully registered voters to actually cast their ballots in the 2026 general election. But it continues to be deeply sobering that it came to all of this in the first place.

Happy Tuesday, all.

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Last Thursday’s grant of a stay in the Missouri redistricting case (see Thursday’s bonus post for more background) used boilerplate language to freeze the district court’s temporary restraining order—and to effectively restore the Missouri Supreme Court’s unanimous September 3 ruling (which had ordered the state to use its 2022 congressional map for the upcoming general election). That didn’t stop a lot of folks online from being confused about what the U.S. Supreme Court had done, what it means for the 2026 general election, or whether the ruling ended the Missouri litigation.

I thought I’d use today’s post to walk folks through exactly what a stay … stays. It turns out that, depending upon the context, the Supreme Court uses at least four different sets of boilerplate when staying a lower-court ruling pending appeal. But despite variations in their text, they all basically mean the same thing: the ruling at issue is frozen (i.e., it cannot be enforced) until and unless the U.S. Supreme Court acts conclusively on the full appeal—no matter what happens in the lower courts in the interim.

In Missouri, for instance, that means that the district court’s TRO will remain frozen while the challengers continue to appeal it (although, as I’ll explain below, that appeal will almost certainly be mooted later this week). But no matter what happens in that appeal, the status quo is for the TRO to remain frozen indefinitely—and certainly through the November elections. The critical difference here is between the formal effects of the Supreme Court’s ruling on the underlying litigation and its practical effects on the real world.

More on all of that below. But first, the (other) news.

On the Docket

Another busy September week for the justices kicked off on Tuesday, when Justice Kavanaugh, acting by himself, denied Missouri’s request for emergency relief directly from that underlying Missouri Supreme Court decision. You won’t find that ruling anywhere obvious on the Supreme Court’s webpage because single-justice denials of relief don’t show up on the “Orders of the Court” page (or any other compendium of the Court’s rulings); it’ll appear only on the docket page for that particular case, which you can’t find without either the docket number or the case caption. (It’s almost like some of these rulings are hard to find—almost … shadowy.)

The full Court on Tuesday denied an emergency application from the parents of a child seeking to enroll in a New York public school—who sought an order that their child be enrolled without the vaccinations required by New York state law, due to religious objections (that New York doesn’t recognize) to those requirements. The lower courts rejected the parents’ claim that New York’s vaccination requirements thereby violate the Free Exercise Clause, and the full Court—over publicly noted (but unexplained) dissents from Justices Alito and Gorsuch—denied an injunction pending appeal.

On Wednesday, the Court agreed to expedite the briefing in the (dumb) attempt by Iowa and Montana to invoke the Court’s “original” jurisdiction in order to shut down the lawsuit by a dozen states seeking to block the Paramount Skydance-Warner Bros. Discovery merger. My own view is that this doesn’t change the odds of the Court actually agreeing to take up this case (by granting leave to file an original bill of complaint). But, if nothing else, we’ll now find out sooner.

Thursday morning brought the full Court’s order granting a stay of the district court’s TRO in the Missouri redistricting case—over no public dissents (which I found slightly—and pleasantly—surprising). Just like every other time the Court hands down a result that isn’t conservative- or Trump-coded, the usual suspects used it as a clumsy excuse to attack the Court’s critics (e.g., “So is the shadow docket good this week?”). But two things can be true at once: The Court absolutely reached the right result, but it once again did itself no favors by providing no explanation for its intervention (breaking the streak of four straight opinions of the Court respecting grants of emergency relief). I’m not sure how many times I need to say it before people believe I mean it, but it’s always a problem when the Court doesn’t explain these rulings, even (if not especially) in the rare but non-zero instances in which I think that there are good explanations for them. And although time was of the essence here in ways that haven’t been true previously, I still think the Court could/should have said at least something about why it was granting a stay—or, at least, promised a forthcoming opinion to that effect. Alas.

Later on Thursday, the Court denied a stay of execution, over no public dissents, to Florida death-row inmate Daniel Conahan.

Turning to this week, there’s nothing formal on the justices’ calendar. But the Court could rule at any time on the Trump administration’s application in the mail-in ballots case. My own view is that the briefing has made it even more abundantly clear why that application should be denied—and that some pretty ugly things could result if it’s granted. Marty Lederman has (another) excellent post about the Solicitor General’s reply brief—a brief that is really quite striking both in what it says and in what it doesn’t say. It’s possible that it’s taking this long because the Court has already voted to deny, and it’s just taking time to produce opinions respecting such an order (indeed, one would think the Court would’ve moved considerably faster if it was granting a stay). But I’ve been wrong before.

There’s also the Trump administration’s other pending emergency application—seeking to restore the government’s new effort to link the Systematic Alien Verification for Entitlements (SAVE) program to Social Security data (an effort a divided D.C. Circuit panel refused to un-block on September 4). To maximize everyone’s confusion, the SAVE case is captioned Department of Homeland Security v. League of Women Voters (although the lead mail-in ballots case is U.S. Postal Service v. California, the consolidated case is Trump v. League of Women Voters). Anyway, the plaintiffs’ response in the SAVE case is due tomorrow (September 15) by 4 p.m. ET, so it’s possible we’ll get a ruling in that case this week, as well.

And I’d be remiss in not flagging two other non-Trump-related emergency applications also pending before the Court. The first is in the Jeffery Lee Alabama death-penalty case—the same one where the Court denied Alabama’s request to vacate a stay of execution earlier this summer. After the district court held that Alabama’s current nitrogen hypoxia protocol is unconstitutional, Alabama is now attempting to execute Lee by lethal injection, and Lee is asking the justices to pause his execution while the Court decides whether Alabama is allowed to make such a late switch in procedure. Lee’s execution is currently scheduled for sometime between 6 a.m. (CT) Thursday and 6 a.m. (CT) Friday, so we’ll likely get something on that this week.

There’s also an application out of California arising from a messy interstate dispute over surrogacy, custody, and abortion (that Kelsey Reichmann helpfully summarized over at Courthouse News). In essence, the surrogate who lost a California state court dispute over custodial rights is now asking the justices to invalidate that order so she can intervene in medical care for the critically ill newborn (whom she brought to term over the couple’s objections after a 20-week scan detected a life-threatening congenital heart condition). It’s an incredible mess, but also the kind of mess that (1) is almost always governed by state, rather than federal, law; and (2) the justices ought to be invested in not getting into on the emergency docket. Justice Kagan has called for a response to the application by this Friday at 4 p.m. (ET), so we likely won’t hear anything until next week.

I know I’m a broken record on this, but it’s striking how, for the second year in a row, the emergency docket has really swallowed the Court’s “summer.”

On a personal note, I’ll be in Richmond, Virginia on Wednesday (September 16) for oral argument before the Fourth Circuit in Bork v. Brisco, the latest case challenging whether it’s constitutional to court-martial retired servicemembers for offenses they commit after retiring. For the three of you who might be interested, the audio will be live-streamed, starting at 9:30 ET, at this page (we’re in the “Gold” Courtroom). And before you ask, the Fourth Circuit doesn’t announce panel assignments until the morning of the argument.

The One First “Long Read”:
What Does a Stay … Stay?

One of the most common mistakes I make in my writing, including in this newsletter, is assuming too much familiarity with legal concepts and too much facility with technical language. That manifested on Thursday, when I received a lot of comments on Bluesky from folks who were confused about the Supreme Court’s stay in the Missouri redistricting case—including (1) whether it meant the case is “over”; (2) why the Supreme Court’s order even mentions the Eighth Circuit; and (3) what, if anything, could happen to undo the stay’s effects.

When Karen and I launched the newsletter back in November 2022, one of our goals was to make the Court more accessible. So here’s my effort to use Thursday’s order to break down, in perhaps too much detail, what the boilerplate language in a stay actually means.

The First Sentence: The Grant

The first sentence is the easiest; it describes (1) to whom the application was referred (Justice Kavanaugh, who’s the Circuit Justice for the Eighth Circuit, which includes Missouri); (2) that he referred it to the full Court (almost always a predicate for full Court action); and (3) what the full Court did (it “granted” the application). There was a time when circuit justices could and would grant relief by themselves. Today, though, the only relief circuit justices grant on their own is temporary relief, like an “administrative” stay. For well over a decade, a “full” stay pending appeal has always come from the full Court. That’s why, even though Kavanaugh acted alone in denying Missouri’s request for a stay on Tuesday, it was the full Court that acted on Thursday, even without any public dissents.

The Second Sentence: The Relief

The second sentence is the longest, but that’s because it’s doing two different things. First, it describes exactly which lower-court order is being stayed (something that can really matter when there are multiple lower-court rulings ostensibly at issue). Second, it describes for how long the stay will be in effect. This second clause is really important, because it’s the reason why we can be confident that Thursday’s ruling settled things for the 2026 election cycle. Here’s the text again: the district court order is stayed “pending the disposition of the appeal in the United States Court of Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought.” What this language is capturing is that the stay will remain in effect until something happens in the Supreme Court (the “and” is doing a lot of work).

So even if the Eighth Circuit, in the challengers’ appeal, were to affirm the district court’s TRO, that wouldn’t affect the stay. Rather, the stay remains in place “pending . . . disposition of a petition for a writ of certiorari in this Court.” That means the district court order is frozen until the Supreme Court grants or denies plenary review after the Eighth Circuit rules on the appeal, no matter what the Eighth Circuit does. Only the Supreme Court, in other words, can formally undo its own stay. (Of course, the Eighth Circuit could vacate or reverse the TRO, but if that happens, then the challengers wouldn’t need further review from the Supreme Court; the stay would eventually expire as moot—once such an appellate ruling became final, there’d be nothing left to stay.)

Now to the timing: The Eighth Circuit, for … reasons, has issued an expedited briefing schedule in the challengers’ appeal (even though the TRO should expire of its own force later this week). But even if the Eighth Circuit decides the appeal and affirms the district court’s TRO (again, very unlikely, in my view), the stay remains in effect while the challengers seek certiorari in the Supreme Court—something they’d have 90 days from the Eighth Circuit’s ruling to even ask for (and that’s without seeking up to 60 days’ worth of legally available extensions). In other words, there’s no universe in which this case would come back to the Court on the merits before the election.

That’s why I could say with confidence on Thursday that the Court’s ruling is effectively final; it doesn’t conclusively resolve the lawsuit, but it formally bars enforcement of the district court’s TRO indefinitely—which, practically, includes the duration of the current election cycle. And the whole point of the Missouri Supreme Court’s ruling, which is back in full effect, is to leave to Missouri voters whether the new map (“HB 1”) will go into effect thereafter.

So the case isn’t “over,” but the effort to use HB 1 in the 2026 general election is (as Missouri Secretary of State Denny Hoskins begrudgingly conceded later on Thursday).

The Third and Fourth Sentences: The Variations

The last two sentences are there just to deal with variations on what could happen next. If the Court were to deny plenary review, that ruling automatically terminates the stay. This makes sense if you think through the two scenarios: if the challengers were seeking certiorari, that would mean they’d lost in the Eighth Circuit, so denying certiorari means the Court is effectively agreeing with Missouri at that point. And if the state were seeking certiorari, that would mean the challengers won in the Eighth Circuit, so there’s nothing left to stay if certiorari is denied.

And if the Court were to grant plenary review, then the stay will remain in effect until and unless either (1) the Court dissolves it; or (2) the Court fully decides the case, at which point whatever the Court has decided will take precedence—either because it makes the stay permanent or because it undermines the basis for the stay. The very last clause (“the sending down of the judgment”) just makes clear that the stay expires not when the ruling comes down, but 32 days later, when the Court issues its judgment after the time for seeking rehearing has expired. (As in Callais, that period can be shortened, but only by affirmative order of the Court.)

Other Formulations

I mentioned that the text in the Missouri order is “boilerplate.” In fact, there are at least four different types of boilerplate—depending upon (1) whether it’s a discretionary (certiorari) or mandatory appeal; and (2) in certiorari appeals, how far the litigation has progressed in the lower courts. The Missouri case is a good example of the broadest stay—where no part of the appeal has yet been heard in the court of appeals. There’s different language for when the court of appeals has already ruled on the merits, and also when it has not just ruled on the merits, but when its own mandate is being stayed. There’s also different language when the “stay” is directed not toward a lower-court ruling, but toward some kind of executive action (e.g., a stay of execution, or a stay of an administrative regulation).

But the goal of this post isn’t to be exhaustive about the linguistic differences across every permutation; it’s to use the Missouri case to illustrate the linguistic mechanics—and why, in whatever formulation a stay comes down, its effect is to basically freeze things until the Supreme Court, and only the Supreme Court, acts next, even if lower courts will continue to move the litigation forward in the interim. And when you add in the time it takes for cases to work their way back to the Court, that means that stays, whether we like their effects or not, usually remain in effect for fairly substantial periods of time—time during which they produce significant effects, good and/or bad.

That doesn’t mean the shadow docket is “good this week” or “bad this week”; it means we should be clear-eyed about the significant effects these orders typically produce, why those effects are often much more than “interim” (including in the Missouri redistricting case), and why that ought to put pressure on the Court to explain its interventions—whether we “like” them or not.

SCOTUS Trivia: The Seniority Tiebreaker

This week is the 55th anniversary of the beginning of one of the most tumultuous six-day periods in the modern Court’s history—when Justices Hugo Black and John Marshall Harlan II retired six days apart, on September 17 and September 23, 1971, respectively. Both were gravely ill; Black had a stroke on September 19 and died on September 25; Harlan succumbed to spinal cancer three months later.

I’ve written before about my appreciation for the second Justice Harlan—even, if not especially, when I’ve disagreed with him. Black is a heavier lift, although no one can doubt the impact he had on the Court during his 34 years on the bench (he retired as the third-longest-serving justice, behind only Field and Marshall, and is still sixth today). But whatever else might be said about the two justices, the impact of their simultaneous departures was unquestionably seismic. Black was succeeded by Lewis Powell and Harlan by William H. Rehnquist—two appointments that would help turn the Court sharply to the right, perhaps far more so than President Nixon’s first two appointees (Chief Justice Burger and Justice Blackmun).

And all of that is the (unnecessarily long) build-up to today’s trivia—the “tiebreaker” for seniority when two associate justices are sworn in on the same day, as Powell and Rehnquist were on January 7, 1972. (There’s no seniority issue when a Chief Justice and associate justice are sworn in on the same day, like Rehnquist and Antonin Scalia on September 26, 1986, since the Chief Justice is always senior.)

It turns out that Congress specifically addressed this scenario in section 1 of the Judiciary Act of 1789, providing that “the associate justices shall have precedence according to the date of their commissions, or when the commissions of two or more of them bear date on the same day, according to their respective ages.” In other words, different birth dates are the tiebreaker.

January 7, 1972 was the third time in the Court’s history that multiple associate justices were sworn in on the same day, after February 2, 1790 and January 3, 1911. But unlike the first two (when the relevant justices’ commissions had been issued—deliberately—on different dates), Powell’s and Rehnquist’s commissions bore the same date. So theirs was the first (and, to this day, only) time the birthday tiebreaker was brought to bear. Because Powell was the older of the two—born September 19, 1907, to Rehnquist's October 1, 1924—he became the senior justice as well, which Chief Justice Burger memorialized by swearing him in first.

As for what happens if there are ever two associate justices with the same date of birth who are sworn in on the same day, ¯\_(ツ)_/¯.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there, especially from legal boilerplate.

But today’s bonus post has an even more immediate trigger—the chaos unfolding in Missouri with respect to which congressional map the state will use in the upcoming midterm elections. That issue is back at the Supreme Court for the second time in three days—for reasons that are complicated, but worth unpacking, as this post attempts to do in detail below the fold. (TL;DR: There are currently conflicting injunctions from the Missouri Supreme Court and a federal district judge in St. Louis, the former barring the state from using the map the legislature passed last year based on its interpretation of Missouri state law; the latter requiring it to do so based on a highly dubious interpretation of federal law.)

And although it’s possible that the U.S. Supreme Court may yet do the right thing (i.e., put back into effect the Missouri Supreme Court’s unanimous ruling from last week by issuing a stay of the federal district court’s TRO from Tuesday night, which would lead to Missouri using its 2022 map in November), there’s a larger point to be made, as well—which is that, no matter what they do later today or tomorrow, the justices in Washington bear at least some of the responsibility for how we got here in the first place.

For those who aren’t paid subscribers, we’ll be back with our continuing coverage of the Supreme Court no later than Monday (and probably sooner). For those who are, please read on.

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I had been waiting until things calmed down (ha!) to devote a post to the scattershot rules governing the release of the justices’ internal papers (especially their case files); how that topic dovetails with broader concerns about the Court’s lack of transparency; and the broader point that, whatever the right answer is, Congress ought to create uniform rules for when and how the justices’ papers become accessible to the public—just like it has for presidential records. Then, on Tuesday, Jodi Kantor published a remarkable story for the New York Times on the same topic, with lots of new reporting on the internal scramble after Justice Scalia’s (unexpected) February 2016 death to figure out when and how his papers would become available for public scrutiny (TL;DR: it’s complicated, but for case files, it’s when the last justice with whom he sat that term dies—so probably at least another 30 years from now for all of them).

After recapping a very busy week of Supreme Court news (especially for the first week of September), today’s post tackles that topic—offering a brief summary of what we know about the papers that are currently unavailable; where folks can find those papers that are accessible (including just how awesome and helpful the folks at the Library of Congress’s Manuscript Division are); and why, whatever the right answer is to the question of when justices’ papers are made public going forward, it ought to be a uniform rule that comes from Congress—and not something that gets left up to the whims of individual justices, or, as in Scalia’s case, their estates. My thanks, especially, to Ava Singh (Georgetown Law ’27), for meticulous assistance in researching this topic.

But first, the (current Court’s) news.

On the Docket

Last week kicked off with Monday afternoon’s 5-4 ruling granting a stay pending appeal in the White House ballroom case, with Chief Justice Roberts writing for himself and the three Democratic appointees in dissent. I had lots to say in Thursday’s bonus post about that deeply misbegotten ruling, and won’t rehash those points here. All I’ll flag for now, because it’s going to be relevant in a minute, is that it was the third straight grant of emergency relief that the Court accompanied with a full (if unsigned) “opinion of the Court.”

Friday morning brought with it the last of the regular summer Order Lists—a series of housekeeping matters, none of which were especially newsworthy. The Court also released on Friday the argument calendar for the “December” 2026 sitting (which starts on November 30). That sitting includes the AR-15 cases on December 2; the transgender parental rights/medical care dispute on December 7; and an important dispute about whether federal law bars states from forcing putative voter registrants to produce documentary proof of citizenship on December 8. But it also includes four open slots across six days—yet more evidence that the upcoming term will once again be back-loaded with big cases (because the justices aren’t filling out the docket in the earlier sessions).

And right before the long weekend, we received the second full Court grant of emergency relief of the week—with the justices blocking a lower court ruling that had frozen an FCC proposal to apply to political parties the requirement that TV stations impose only the “lowest unit charge” on ads by political candidates as Election Day approaches. (In other words, the Supreme Court’s intervention will make ad buys for political parties, especially Republicans, cheaper, at least until November.) It’s not an especially high-stakes case (which may explain why only Justice Jackson publicly dissented), but that ought to have been reason enough for the Court to deny the stay. Instead, after getting the jurisdictional question wrong (per Justice Jackson’s dissent), the Court appears to have made yet more new law on what counts as “irreparable harm,” explaining that having to spend more money to reach voters with election-season ads irreparably harms the applicants by “hampering their efforts to reach the electorate in the critical weeks leading up to the midterms.” The Court has, historically, been adamant that monetary harms are seldom irreparable since having to spend extra money to achieve the same goal can usually be recouped after the fact. Alas.

One last note about Friday’s ruling in National Republican Congressional Committee v. Brown: The Court once again produced an (unsigned) majority opinion—the fourth straight grant of emergency relief to be accompanied by an opinion of the Court. (You have to go back to May 14 to find grants without majority opinions.) I wondered in Thursday’s post about whether the justices have adopted a new norm of always writing an opinion of the Court when they vote to grant emergency relief; four in a row is even stronger evidence that this may be a thing than the three I was relying upon then. And as I suggested on Thursday, that’s both a positive development (the content of the writing notwithstanding), and one that would necessarily reflect a Court once again showing itself to be reactive to public criticism—at least when that criticism is framed in institutional (as opposed to political or ideological) terms.

The emergency docket is also likely to figure prominently during the week to come, thanks to two major, pending emergency applications. The first is in the mail-in ballots case. On Thursday, the Trump administration filed an application seeking a stay of Judge Talwani’s TRO (#37, if you’re keeping count), once again seeking to put back into effect its effort to restrict which mail-in ballots will be delivered by the U.S. Postal Service. But that application was mooted by the preliminary injunction Talwani entered on Friday. So yesterday, the administration withdrew the first application and filed a new one (#38)—this time seeking a stay of the preliminary injunction itself and an immediate administrative stay. As with the previous application, Justice Jackson (as Circuit Justice for the First Circuit) did not issue an administrative stay, but did set a tight deadline for a response—the plaintiffs’ briefs are now due Wednesday at 4 p.m. ET. Thus, it’s at least possible that the Court will rule on this latest application (U.S. Postal Service v. California) by the end of this week—and next week at the latest. The First Circuit is also moving quickly, so it’s also possible (if not likely) that it will rule first, although I think everyone expects it to deny the stay.

And late Friday (although it was docketed on Saturday), Missouri filed an emergency application asking the justices to pause the Missouri Supreme Court’s unanimous ruling that had blocked, on state-law grounds, Missouri’s 2026 gerrymander, which had been designed to create an additional safe Republican seat in the Show-Me State’s eight-member House delegation. (In other words, Missouri is asking the justices to restore the 7R-1D map.) Missouri’s pretty hysterical application (it opens “A federal-election-administration disaster is unfolding in Missouri.”) fails to mention some pretty important facts, including that there are prior examples of states conducting general elections with different districts than the ones that had been in place for the primaries. Its central claim is that the state supreme court’s decision, by requiring this result, violates the federal Constitution—a not-so-subtle effort to invoke the “Independent State Legislature” theory that the Court declined to embrace (or, alas, conclusively reject) in Moore v. Harper. Justice Kavanaugh ordered the challengers to respond by noon today (even though it’s a federal holiday), so this one is likely to move quickly, too.

When the Court rose for its summer recess back in June, I suggested that it was too soon to close the book on OT2025 because we were likely to see a flurry of important emergency applications before the term “officially” ends on the first Monday in October. After a quiet beginning to the summer, things sure are picking up…

The One First “Long Read”:
How the Sausage Gets Made Public

The justices’ papers have long been a subject of intense academic study and controversy. There is a lot to learn about the Court’s internal machinations and deliberations from the justices’ internal records of the proceedings, and forests have been felled about the lessons that can be divined not just with respect to the decisionmaking processes in individual cases (like the initial vote at Conference in Casey to overturn Roe) but the justices’ personal relationships and procedural behavior more generally. If anything, given how much of the Court’s real-time output is shrouded in secrecy (everything from the votes for certiorari to who had, and then lost, an original opinion assignment after oral argument), the internal papers have become even more important to try to piece together how the Court got from A to B.

There’s also a related body of meta-scholarship about the debate over when and how the justices’ papers should become accessible. Professor Susan David deMaine, who’s the Director of the Law Library at the Maurer School of Law at Indiana University, has written extensively on just about all of this—my favorites are her 2018 Law Library Journal article, “Access to the Justices’ Papers: A Better Balance,” and a 2022 co-authored empirical study of how scholars have used the papers of Justices Brennan, Marshall, and Blackmun. (There’s also a great 2013 NYU Law Review article by University of Washington professor Kathryn Watts, “Judges and Their Papers.”) And there have been a series of historical flashpoints, including Justice Marshall’s decision to make his papers available immediately upon his 1993 death—a move that provoked a remarkably sharp and negative response from Chief Justice Rehnquist on behalf of “a majority” of the Court.

Here’s what we know about what we don’t currently know:

I. Nine Former/Retired Justices With Existing Restrictions

Counting Justices Kennedy and Breyer (who, so far as I know, have yet to make any public announcement about what’s going to happen to their papers), there are nine former justices whose case files, in particular, are not yet (fully) accessible to the public. For the seven whose plans have been announced, here are the details (in chronological order based on when they left the Court—which I’ve indicated in parentheses):

Warren Burger (1986): Despite some sources suggesting that Burger’s papers were due to become available later this month (40 years after his retirement), it appears that his papers will in fact become available on December 1, 2033—ten years after the death of Justice O’Connor, the last surviving justice with whom Burger served. Burger’s papers were donated to William & Mary.

William H. Rehnquist (2005): Rehnquist donated his papers to the Hoover Institution at Stanford University, and the papers are being opened on a rolling basis with portions of the papers being opened following the deaths of each of his former colleagues. Currently, papers from OT1987—OT2005 remain closed, presumably because Justice Kennedy was nominated to the Court in 1987 and is still alive. If that approach holds, Rehnquist’s papers will not be fully available until after Justices Kennedy, Thomas, and Breyer have died.

Sandra Day O’Connor (2006): O’Connor gave her papers to the Library of Congress. Papers through OT1990 are available to the public (and have provided a bit of a treasure trove already). But she restricted access to the papers from OT1991—OT2005 until all justices who served with her have retired. Justice Thomas’s retirement would open most of that period up (OT1991—OT2004), leaving only OT2005 for when Chief Justice Roberts retires.

David Souter (2009): Souter’s papers were donated to the New Hampshire Historical Society and are closed until 50 years after his death—so they won’t become available until May 8, 2075. Sigh.

John Paul Stevens (2010): Stevens donated his papers to the Library of Congress starting in 2005, while he was still on the Court. The first installment of papers from OT1975—OT1984 opened in 2020, and the second installment of papers from OT1985—OT2004 opened in 2023. The papers from OT2005—OT2010 will remain closed until October 2030 per Stevens’s instructions. (Importantly, because of the others’ restrictions, Stevens’s papers are the only ones currently open with coverage of OT1994 or any later term, up to and through OT2004.)

Antonin Scalia (2016): Scalia’s papers are held at the Harvard Law Library and there are a number of restrictions on them based upon the type of file. The “correspondence” files will be opened on a rolling basis with the files from 2016 being released in 2047, which is 30 years from the date of creation. The “speaking engagement and event” files will similarly open on a rolling basis, with files becoming available 30 years after the date they were created. Papers from Scalia’s time on the D.C. Circuit also open periodically following the death of judges who participated in individual cases. All D.C. Circuit case files are expected to be open by 2050—but individual items within the case files may be closed longer. The papers from his time on the Supreme Court will open for a particular term upon the death of all other justices who served during that term (the youngest justice to have served with Scalia is Justice Kagan).

Ruth Bader Ginsburg (2020): Ginsburg donated her papers to the Library of Congress. The papers include both personal papers (such as birthday cards and well wishes) and papers relating to her career and time on the Court. Certain papers are available now; another batch will become available on January 26, 2027; and others will become available 25 or 50 years after her death (September 18, 2045 and September 18, 2070), respectively. As for the case files, specifically, those files will remain closed until all judges or justices who participated in that case have died. Because Justices Thomas and Breyer are still alive, that means none of her case files from the Supreme Court are open yet. Certain papers also involve sealed files which must remain restricted until the Court unseals them.

II. Where to Find Everything Else

Professor deMaine’s 2018 article has an incredibly useful appendix that identifies the donations and access restrictions on the most significant collections of papers for every justice to serve on the Court during and since 1900. Although the collections are (literally) all over the place, the most common location is the Library of Congress—where the papers can be accessed through the Manuscript Division.

That gives me an excuse to note that I wrote a lengthy article early in my career that attempted to reconstruct (and then deconstruct) the Supreme Court’s cryptic but important 1948 decision in Hirota v. MacArthur (rejecting a last-ditch effort to get the justices to review the Tokyo war crimes tribunal on the ground that it was really an American operation, and thus subject to American judicial review), a project that relied heavily on access to the justices’ papers from the October 1948 Term. It turns out that the mystery could largely be untangled from the internal papers of Justices Black, Jackson, and Rutledge, specifically—including a draft opinion by Rutledge that my article was the first to make public. There’s just so much more context one can glean from seeing how the justices processed things internally than is often visible from what is ultimately produced for public consumption. (Even Chief Justice Roberts invoked Justice Blackmun’s papers during the oral argument in Dobbs.)

Let me also note here how amazingly helpful the folks at the Manuscript Division were (and continue to be). One need not be an accredited law professor writing an article to access these papers; it’s open to “readers age 16 and above who have a specific need for access to the collections of the Manuscript Division and associated materials.” More details are available here.

III. The Case for Uniformity

I’ve saved the most controversial part for last, but as the haphazardness described above should drive home, it sure would be useful if there were a uniform set of rules to govern how/when the justices’ papers become public. In her 2018 article, Professor deMaine identified the source of the problem as the fact “that the Supreme Court Justices continue to have personal ownership of their working papers, resulting in idiosyncratic retention and access decisions.” (For what it’s worth, the justices have asserted personal ownership of their papers, but there’s no external authority agreeing with them, and it seems odd to think that the government owns every other piece of paper produced by government employees on the job except the ones produced by the justices in their chambers.)

Regardless, Congress, deMaine argued, should assert (or, in my view, re-assert) ownership over the justices’ papers—and create a uniform moving wall for when case files, at the very least, would be released to the public—sometime between ten and twenty years after a justice retired, regardless of who is still serving on the Court. As she suggested,

A window of no fewer than ten years and no more than twenty would allow the Justices, and others represented in the collections, a long stretch of confidentiality and would ensure that no matters discussed in the papers were still in front of the Court. After twenty years, access restrictions would be allowed only on materials the discourse of which would “constitute an unwarranted invasion of privacy.”

As deMaine’s article explains, such a proposal largely tracks a series of recommendations made by the 1977 National Study Commission on Records and Documents of Federal Officials. If that were the rule today, we’d already have access to Rehnquist’s, O’Connor’s, Souter’s, and Stevens’s papers in full (bringing us to the end of OT2009); with Scalia’s (middle of OT2015) and Ginsburg’s (end of OT2019) papers not far behind—versus decades away from public view.

But whatever the “right” answer is, it shouldn’t be controversial to suggest that public awareness of the Court is not well-served by a series of widely varying access rules crafted by the justices (or their estates) to serve the justices’ purposes, rather than the public’s. Judicial deliberations can and should be confidential—for a time. But we already know so much more about the Court because of what we’ve learned from the justices’ internal papers from earlier generations. Having a uniform and predictable set of legislatively imposed rules to govern the release of papers going forward would not only help to increase the Court’s transparency, but it would also reaffirm that the justices’ work, which increasingly affects all of us, also belongs to all of us.

SCOTUS Trivia: Who’s Number Two?

The Library of Congress remains the repository of choice for the justices’ papers. By my count, it holds the “principal” collections of 38 justices’ papers. There’s no official claim to second place, but I’m pretty sure it belongs to the Harvard Law School Library—which houses the principal collections of five justices: Joseph Story, Oliver Wendell Holmes, Jr., Louis D. Brandeis, Felix Frankfurter, and, most recently, Antonin Scalia. Of course, given that Harvard Law graduated twice as many justices as any other law school (18, to Yale’s nine), this particular piece of trivia may not be all that surprising.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there, especially from whatever is in the justices’ internal papers.

Rather than criticize Monday’s ruling in National Park Service v. National Trust for Historic Preservation (Professor Leah Litman has that well in hand), I want to draw out some meaningful lessons that I think we can take away from the Court’s latest misadventure on the emergency docket—one about Chief Justice Roberts (who wrote the dissenting opinion on behalf of himself and the three Democratic appointees); one about Justice Barrett (who continues to vote in ways that I just don’t understand given what she has claimed to be her committments); one about the Court’s internal procedures for handling emergency applications (as reflected in Roberts issuing an administrative stay and then writing the dissent from a stay pending appeal); and one about the Court’s apparent susceptibility to certain types of sustained public criticism (as reflected in the fact that, for the second straight case, we have a brief but deliberate majority opinion formally explaining the Court’s intervention).

I unpack each of these points in more detail below the fold. For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our continuing coverage of the Supreme Court. For those who are, please read on.

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