88. The Cleanup Conference

After the major rulings we expect this morning, the justices will release a series of other rulings later this afternoon that won't get as much attention—even if some of them should

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

There is obviously a whole lot to write about, both with respect to the rulings the Court handed down last Wednesday, Thursday, and Friday, and the three (or four) rulings still to come later this morning. We’ll recap all of that in “On the Docket,” but save the longer analyses for later. Instead, I wanted to use today’s “Long Read” to cover a really important thing that’s also going to happen today, but that will get a lot less attention: The “Cleanup Conference.” By tradition, the Cleanup Conference is the justices’ last in-person gathering before the summer recess (and until the Long Conference in late September). And although a lot of what the Cleanup Conference does is straightforward (e.g., sending cases back to the lower courts that had been waiting on some of the Court’s more recent rulings), some of it is not. Instead, the Court sometimes uses the Cleanup Conference, deliberately or otherwise, to bury really important summary dispositions and/or denials of certiorari. Hence, today’s newsletter—and my hope that folks will keep an eye out for those rulings, too.

But first, the (other) news.

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On the Docket

After Monday’s Order List brought with it seven grants for OT2024 (bringing the total to the still-below-normal figure of 23), most of the news was confined to the latter part of the week. For the second week in a row, the Court issued nine rulings in argued cases (including one that came down first by accident). In very brief nutshells (and in order), they were:

1. Murthy v. Missouri: To the surprise of no one (except, apparently, the Fifth Circuit and Chief Judge Doughty), Justice Barrett wrote for a 6-3 majority in holding that anti-vaccine activists and red states lacked standing to sue the Biden administration to press their claim that the government coerced social media companies into taking down posts with vaccine-related mis- and disinformation. And unlike Justice Kavanaugh’s opinion for a unanimous Court in the mifepristone case, Justice Barrett took a handful of (IMHO, deserved) shots at both lower courts—for failing to follow long-settled principles of standing doctrine and for relying upon factual conclusions that the majority deemed to be clearly erroneous. Whether those lower courts get the message the Court is quite clearly trying to send in Murthy and the mifepristone case remains to be seen; the message was apparently lost on Justice Alito, whose dissenting opinion was joined by Justices Thomas and Gorsuch, and who read his dissent from the bench.

2. Snyder v. United States: Speaking of predictable, a 6-3 Court (dividing strictly along ideological lines), in an opinion by Justice Kavanaugh, held that a federal criminal anti-bribery statute does not apply in cases in which officials receive “gratuities” for past official acts. Justice Jackson did not exactly pull her punches in her dissenting opinion, joined by Justices Sotomayor and Kagan, which referred to Snyder’s “absurd and atextual reading of the statute” as “one only today’s Court could love.”

3. Ohio v. EPA: Thursday’s first ruling was the long-awaited decision on the emergency applications challenging the Biden administration’s “Good Neighbor” ozone pollution rules. Justice Gorsuch, writing for a 5-4 majority (with Justice Barrett writing the dissent on behalf of herself and all three Democratic appointees), held that the challengers were likely to succeed on their claim that the EPA acted arbitrarily and capriciously. I’m going to have a lot more to say about the ruling—which doesn’t just raise serious questions about how any agency process respecting a program the justices don’t like can satisfy the current Court, but also calls into question, yet again, how the Court handles emergency applications.

4. Harrington v. Purdue Pharma LP: Justice Gorsuch also had the majority opinion in the Court’s 5-4 ruling throwing out the Purdue Pharma bankruptcy settlement—on the ground that federal bankruptcy law doesn’t allow for bankruptcy plans that purport to get rid of claims against nondebtors (here, the Sacklers) without the consent of the affected claimants. The 5-4 split was a strange one, with Justices Thomas, Alito, Barrett, and Jackson joining Gorsuch’s majority opinion, and Chief Justice Roberts and Justices Sotomayor and Kagan joining Justice Kavanaugh’s dissent. I’m not sure if Justice Jackson was the median here, but that’s a fascinating outcome, if so.

5. SEC v. Jarkesy: Thursday’s penultimate ruling brought back the usual ideological split—with Chief Justice Roberts writing for a 6-3 majority in holding that the Seventh Amendment entitles the subject of an SEC civil enforcement proceeding for securities fraud to a jury trial, and thus effectively nixing the SEC’s internal civil enforcement regime. In her oral dissent (but not, as it turns out, her written opinion), Justice Sotomayor called the majority opinion “a devastating blow to the manner in which our government functions.” It remains to be seen just how much that turns out to be true—and how much the majority opinion imperils other agencies’ civil enforcement schemes. But one point that hasn’t gotten a lot of attention is that the Court said nothing about the other two constitutional grounds on which the Fifth Circuit had sided with Jarkesy—its conclusions that administrative law judges in the SEC are unconstitutionally appointed; and that the SEC’s civil enforcement scheme violates the non-delegation doctrine. Because the Court did not vacate those holdings (it specifically said it was saying nothing about them), there’s a decent argument that they remain the law of the Fifth Circuit—which will not only cause mischief in other pending cases, but will force the justices to take those issues up in a future case that turns only on them.

6. Moyle v. United States: Speaking of kicking cans down the road, Thursday’s last ruling was only unsurprising because the Court accidentally released it on Wednesday. I wrote Thursday’s bonus issue about the EMTALA “glitch,” and won’t rehash the key points here (especially because it looks like what the Court released Thursday is materially identical to what was accidentally posted on Wednesday). Suffice it to say, though, by “dismissing as improvidently granted” the petitions for certiorari before judgment in the two Idaho EMTALA cases, and thus not ruling one way or the other on the underlying legal questions, the Court simply pushed to the far side of the November elections the question of whether doctors are required by federal law to provide emergency abortions even when state law bans them. That may be why Justice Jackson, for the first time in her tenure on the Court, read her dissenting opinion from the bench.

7. City of Grants Pass v. Johnson: Justice Gorsuch’s busy week continued on Friday, with his opinion for an ideologically divided 6-3 majority in the Oregon homelessness case. In a nutshell, the Court held that, when cities enforce “generally applicable” laws relating to camping on public property against homeless individuals, that enforcement, by itself, does not violate the Eighth Amendment’s ban on cruel and unusual punishment. Justice Sotomayor’s dissent, which she read from the bench (for the second day in a row), is a remarkably direct opinion—and worth reading even if you’re more sympathetic to the majority’s position than I am.

8. Loper Bright Enterprises v. Raimondo: And then the Court overruled Chevron. Chief Justice Roberts wrote for another ideologically divided 6-3 majority in holding that, when statutes delegating power to administrative agencies are ambiguous, courts owe “respect” to the agency’s interpretation, but not deference—meaning, in the main, that courts can substitute their judgment of the “best” reading of the statute for the one proffered by the agency. Justice Kagan, who read her dissent from the bench (you might be noticing an emerging theme), takes a number of well-aimed shots at the majority opinion. My favorite is “If opinions had titles, a good candidate for today’s would be Hubris Squared.” Put more directly, in her words, “ A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.” As readers of this newsletter will know, I completely agree.

9. Fischer v. United States: The last ruling on Friday, also from Chief Justice Roberts, gave us a bit of a surprising 6-3 majority, if not a surprising result, with respect to the criminal obstruction statute on which federal prosecutors have relied in a bunch of the January 6 prosecutions. In a nutshell, the Court narrowed that statute—albeit in a way that may not actually do that much damage to more than a handful of January 6 convictions (and that seems carefully tailored to not affect the charges against former President Trump). I still think Justice Barrett, whose dissenting opinion was joined by Justices Sotomayor and Kagan, has the better of the argument for why textualists should have read the statute broadly. But there’s a lot to commend in Justice Jackson’s solo concurrence—which explains why folks who look beyond the plain text of a statute (like me) could end up in the same place as the majority. Frankly, I’m of two minds about who’s right here. But the real problem with the ruling, as I wrote for CNN over the weekend, is that it does nothing to disabuse the right-wing fringe from portraying it as a much more sweeping repudiation of January 6 prosecutions than it actually is. The justices don’t live in a vacuum; the real problem with Fischer is what it doesn’t say.

Two quick notes about these rulings, taken together. The first is just to flag how sloppy they were. Beyond the EMTALA glitch, there were a number of (frankly embarrassing) mistakes in the decisions the Court deliberately handed down—such as Justice Gorsuch’s majority opinion in Ohio v. EPA referring to nitrous oxide (laughing gas) when he meant nitrogen oxides. (Even a quick gander at the Court’s opinions page shows an unusual frequency of “Revisions” notations.) Leaving aside the irony of making that kind of mistake in an opinion that shows no deference to the expert agency’s internal processes, it reflects the larger problem I warned about a few weeks ago: When the Court leaves this many divisive and important rulings to be decided in such a short window, it is simply inevitable that the justices, and the Court’s staff, will make more mistakes. To those who say there’s nothing wrong with the Court acting this way, I’d point to last week’s … glitches … as a rather telling counterexample.

Second, reports of the Court’s lack of ideological division may have been exaggerated. As I noted on Twitter on Friday, counting last week’s rulings, we’ve now had 30 non-unanimous decisions in argued cases so far this term. And by far, the most common lineup has been the 6-3 Republican appointee/Democratic appointee split—responsible for nine of those 30 decisions. (The next most common lineup—6-3 with Thomas, Alito, and Gorsuch in dissent, has happened only three times.) If you add the two 5-4 rulings in which all three Democratic appointees were joined by a Republican appointee in dissent, that means that, in more than one-third of the cases in which the Court isn’t unanimous, it’s dividing right down ideological lines. That’s twice as many as last term—and it ought to put to bed hot takes about how unified the justices are. We’ll see if today’s rulings add to those tallies.¹

Finally, because the Chief Justice said so at the end of last Friday’s public session, we know that today will be the final day on which the Court delivers rulings in cases argued this term (the term itself won’t end until October 6). And we know, from the process of elimination, what’s left: Corner Post (which became much more important after the Court overruled Chevron on Friday); the two NetChoice cases; and the Trump immunity case. If my predictions about who has what hold, we’ll get NetChoice (from Barrett, at least in one case) first; Corner Post (from Alito) second; and Trump (from the Chief Justice) third. But at this point, anything is possible—including fractured majorities; re-assigned opinions; and even unsigned “per curiams.”

And when all of that’s done, we also expect the Court, sometime this afternoon, to issue one more formal Order List before decamping for the summer—the list out of the “Cleanup Conference.” That’s the subject of this week’s “Long Read.”

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The “One First” Long Read: Cleanup on Aisle SCOTUS

Chances are, you’ve never heard of the “Cleanup Conference” (or you have, but only because you’re an even bigger SCOTUS nerd than I am). There’s nothing necessarily nefarious about it; given the flurry of decisions the justices tend to hand down before rising for their summer recess, there’s always some set of pending petitions or other procedural matters that require the justices’ actions before they leave town—including, at the very least, the dispositions of those appeals that the Court was “holding” pending its resolution of other, related cases. To take one example, there are a whole bunch of gun cases that the Court is expected to act on today—after and in light of its ruling two weeks ago in Rahimi. And whether the Court is going to issue “GVR” orders in those cases (Granting certiorari, Vacating the decision below, and Remanding for further proceedings in light of Rahimi), deny certiorari outright, or grant certiorari outright (and add some of those cases to the OT2024 docket) is, quite obviously, a big deal.

But because the justices are humans, the Order List that gets released after the Cleanup Conference often includes other matters, as well. It was the Cleanup Conference list in June 2017, for instance, that included the quietly significant summary ruling in Pavan v. Smith—in which a majority held that Arkansas could not refuse to list both legal parents on a child’s birth certificate just because the parents were of the same sex. We also often see on the Cleanup Conference list really passionate dissents from (or concurrences in) denials of certiorari; last year’s Cleanup Conference Order List, which ran 57(!) pages, included 53 pages encompassing ten opinions relating to orders. Sometimes, it could be that the justices may be working on those opinions for quite some time—and the Cleanup Conference at least appears to be the Court’s internal deadline for getting them out the door.

Finally, the Court will sometimes bury newsworthy cert. grants in the Cleanup Conference Order List. In that same list from 2017 that included the Arkansas birth certificate case, the Court also granted certiorari in Masterpiece Cakeshop—an important test case for the intersection between public accommodations laws and religious opposition to same-sex marriage. Masterpiece Cakeshop had been relisted (scheduled for additional Conferences) 14 times before the Court finally agreed to take it up on its way out the door for the summer. 14 relists before a grant is still, so far as I understand, the record. Last year’s list, just to underscore the point, included the grants of certiorari in Jarkesy and Rahimi, among five others.

I say all of this not because I’m confident that we’re getting similarly momentous rulings in today’s Cleanup Conference Order List, but because there’s at least a good chance that we could be—and yet, any news coming out of that list will be completely drowned out by whatever the Court does this morning in NetChoice, Corner Post, and, especially, Trump. That’s understandable, but it’s also entirely avoidable.

Instead of issuing the orders this afternoon, the Court can and should commit to issuing orders from the Cleanup Conference the same way it issues orders from every other Conference during the Term—to hand them down at 9:30 a.m. on a fixed day after the Conference, and at least one day after the last opinions in argued cases come down.² This shouldn’t be a heavy lift; the justices already don’t take the bench to issue orders from the Cleanup Conference, and they wouldn’t need to in this approach, either. But it would at least space things out so that, if the Court is also making big news in the orders and opinions that come out of the Cleanup Conference, that news could be absorbed and digested on its own—and not as the all-but-forgotten afterthought to what are usually the Court’s most visible merits rulings of the year. Indeed, such a transparency- and accountability-enhancing move shouldn’t be especially controversial, not least because it would produce very few downstream effects (none of these cases will be affected by waiting one more day for a SCOTUS order).

Of course, maybe this year will be different, and the Cleanup Conference will make very little news. But given the drama that is expected later this morning, those who get all of their news about the Court from major media outlets (so, not you!) may never know.

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SCOTUS Trivia: The Most Opinions in a Single Case

One of the things that most folks who regularly cover the Court do is prepare, in advance, for various possible outcomes in each case, especially the “big” ones. To that end, a friend of mine asked me over the weekend how many total opinions I expect in the Trump case—to which my response was a shrug emoji.

One thing I’m confident of, though, is that nothing we get later today will tie—or break—the record for the most opinions from the Supreme Court in a single case. That honor, so far as I know,³ belongs to two different cases decided within a year of each other: the Pentagon Papers case—New York Times v. United States—and Furman v. Georgia, both of which included ten different opinions. In both cases, every justice wrote their own opinion, and there was an unsigned “per curiam” opinion to speak, at least in part, for the majority.

I’m just really glad that I didn’t have to help explain those rulings in realtime.

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Until then, happy Monday, everyone. I hope that you have a great week!

1. These numbers don’t include emergency applications, in which the public dissents are even more consistently ideological. Indeed, Ohio v. EPA was the first time all term in which justices appointed by presidents from both parties publicly dissented from the disposition of an emergency application. Every other public dissent has been homogenously ideological.

2. The Court in recent years has issued orders granting certiorari out of the Long Conference on the same day as the Conference. But the “regular” Order List, including denials of certiorari and opinions relating thereto, comes the following Monday at 9:30 a.m.

3. If readers are aware of other cases in which the Court has handed down 10 opinions, please send them my way!