The interim docket dominated court news this week. Among other developments, the court declined to allow the Trump administration to implement its new transgender inmate policy and then received a new application from the administration addressing a block on border wall construction in the Big Bend region of Texas. On the oral argument docket, the justices agreed to hear two significant cases – one on race and school admissions and the other on the federal ban on home distilling. They will likely be argued early next year.
Looking ahead, on Thursday, Oct. 29, at 1 p.m. EDT, Amy will join Briefly’s Adam Stofsky on LinkedIn Live to discuss what unfolded at the court this month. Register here for the event.
At the Court This Week
Three cities and a group that provides legal services to immigrants have asked the Supreme Court to pause an agreement between Texas and the Department of Justice that prevents enforcement of a Biden-era rule allowing immigration judges to pause certain deportation proceedings. On Thursday, Texas and the DOJ responded to this application. For more on the filings, see the On Site section below.
Also on Thursday, the Supreme Court granted a request from election officials in New Hampshire to allow enforcement of a law that prohibits the use of student IDs for voting. Justice Ketanji Brown Jackson wrote a dissenting opinion. Learn more about the dispute in the On Site section.
On Wednesday, the Supreme Court denied the Trump administration’s request for it to clear the way for the Federal Bureau of Prisons to implement its new policy on transgender inmates, which would prevent such inmates from obtaining gender-transition surgeries, hormone therapy, and “social accommodations.” Justices Clarence Thomas and Samuel Alito indicated, without explanation, that they would have granted the application.
Later on Wednesday, the Trump administration returned to the Supreme Court’s interim docket, asking the justices to allow it to resume construction of its border wall in the Big Bend region of southwestern Texas. Responses to the application are due by 4 p.m. EDT on Thursday, Oct. 29.
In its Monday order list, the Supreme Court added two cases to the oral argument docket for the 2026-27 term: a challenge to the process that a Maryland county uses to determine admissions to highly selective public magnet schools and a dispute over the constitutionality of the federal ban on home distilleries. It also denied review in several high-profile cases, including on plea deals for some of the men alleged to have planned the 9/11 attacks.
Morning Reads
US Supreme Court rulings reshape midterm election battlefield
John Kruzel, Reuters
The midterm elections on Nov. 3 will bring an end to “an electoral cycle shaped to an unusual degree by” Supreme Court rulings, including recent decisions on congressional redistricting and campaign finance restrictions, according to Reuters. Ilya Somin, a law professor at George Mason University, told Reuters that “Republicans seem to have gained a net benefit from” these rulings. “It remains to be seen, however, whether these legal victories will help President Donald Trump’s party in its quest to retain control of Congress.” No matter how the midterm elections turn out, additional legal battles may follow over such issues as “federal interference in the voting,” Reuters noted.
Hillary Clinton joins growing chorus in support of Supreme Court expansion
Steve Benen, MS Now
During Wednesday’s episode of “High Stakes,” a podcast featuring former presidential candidate Hillary Clinton and journalist Kara Swisher, Clinton addressed possible Supreme Court reforms, “rais[ing] some practical concerns about term limits on Supreme Court justices” but “expressing support” for adding justices, according to MS Now. “[W]e should seriously look at expanding the court while the Democrats are in power,” Clinton said. “You know, it used to be that you’d have one justice for each circuit. We now have 13 circuits, we should have 13 justices. So I would be in, you know, favor of looking at that and see if we could make it work.”
Dick Durbin Wants to ‘Walk Out’ the Front Door After 44 Years in Congress
Paul Kane, The Washington Sun
Sen. Dick Durbin will retire in early January after a combined 44 years in the House and Senate. While in the Senate, he was a key figure on the Senate Judiciary Committee and took part in “confirmation hearings for eight of the nine Supreme Court justices,” according to The Washington Sun. Durbin spoke with the Sun about significant moments in his career, including when Democratic Sen. Harry Reid took “the first party-line step to break filibuster constraints” for confirming judges and Republican Sen. Mitch McConnell “blocked the 2016 nomination of Merrick Garland” to the Supreme Court. The Sun noted that Durbin is “careful not to tell his current colleagues what they should do in the future. But he’s not very supportive of trying to further blow up the institutional guardrails in order to do things now demanded by the [Democratic Party’s] most liberal faithful, such as expanding the Supreme Court.”
Is Citizens United to Blame for Everything?
Adam Liptak, The New York Times (paywalled)
In his newsletter for The New York Times, Adam Liptak revisited Citizens United v. FEC, in which the Supreme Court held in 2010 “that corporations and unions have a First Amendment right to spend unlimited amounts in candidate elections.” As Liptak noted, many claim Citizens United significantly damaged American politics without fully understanding what the Supreme Court held. “[T]here are many misconceptions about Citizens United,” Liptak wrote. “A cleareyed look at the decision undermines the conventional view that it single-handedly opened the floodgates of dark money in American politics.”
The Supreme Court Is More Apathetic Than Partisan
Noah Feldman, Bloomberg (paywalled)
In a column for Bloomberg, Noah Feldman highlighted Justice Elena Kagan’s Tuesday appearance at Catholic University’s law school in Washington, during which she criticized the conservative majority’s approach to voting rights and raised concerns that it “has kind of blinded itself to the very deleterious effects of [its] rulings on how the political system works.” Kagan, according to Feldman, “made it clear that ignoring consequences is not a mere accident but a direct result of originalism, the dominant conservative judicial philosophy.” Feldman described Kagan’s criticism as “spot on,” writing that “[w]illful blindness to real-world consequences really is at the heart of the harm the conservative majority is doing to the country.”
On Site This Week
Court News
Supreme Court allows New Hampshire to restrict use of student IDs in voting
The Supreme Court on Thursday afternoon cleared the way for New Hampshire to bar the use of student IDs as the valid photo ID required to obtain a ballot there. In a brief, unsigned order, the justices paused a ruling by a federal judge in New Hampshire, citing the principle (often known as the Purcell principle) that “lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Court News
Trump administration and Texas urge court to leave their agreement on deportation proceedings in place
The Trump administration and Texas urged the Supreme Court on Thursday to leave in place their consent agreement abolishing a Biden-era regulation that had allowed immigration judges to suspend some deportation proceedings. U.S. Solicitor General D. John Sauer told the justices that the request from the challengers “attempts to improperly leverage a clear-cut dispute over” the challengers’ efforts to join the case “into a far-reaching attack on the merits of” the court’s approval of the agreement. Texas argued that granting the challengers’ request “would revive a rule the district court declared unlawful, renew the fiscal and sovereign injuries Texas alleged, and unsettle a final judgment accepted by the actual parties.”
From the SCOTUSblog Team
The Mahmoud Khalil and Badar Khan Suri cases: an explainer
During the early months of President Donald Trump’s second term, the federal government detained and sought to deport several students and academics because of their support for Palestine. The Supreme Court could soon take up the cases of two of those detainees, Mahmoud Khalil and Badar Khan Suri, which ask whether federal trial courts have the power to consider challenges to the two men’s detentions.
Contributor Corner
When denying a stay denies the rule of international law
In his Court Beyond Borders column, Martin Flaherty revisited the Supreme Court’s interim docket order allowing the Trump administration to deport noncitizens to countries not identified in their removal orders while a challenge to this practice continued. The decision, according to Flaherty, is representative of the court’s “increasing disregard, if not antipathy, to international human rights law.”
Contributor Corner
The court’s third-country removal case has high stakes but will likely be decided on technical grounds
In his Immigration Matters column on Wednesday, César Cuauhtémoc García Hernández also explored Department of Homeland Security v. D.V.D., on “the federal government’s power to send migrants to countries where they have no ties.” He believes the court’s eventual ruling will likely focus not on the life-and-death stakes surrounding this case, but “on technical issues of judicial authority to consider the migrants’ claim[s].”
Contributor Corner
The Supreme Court’s next major case on the free exercise of religion
In his Courtly Observations column on Tuesday, Erwin Chemerinsky reflected on the Roberts court’s approach to religious freedom, highlighting recent rulings in which it “has greatly lessened the protections of the establishment clause” and “aggressively expanded the protections of the free exercise clause.” St. Mary Catholic Parish v. Roy, which will be argued next month, “raises important questions about how far the court will go,” Chemerinsky contended.
Contributor Corner
Where the Supreme Court favors Trump on the emergency docket – and where it doesn’t
In his Empirical SCOTUS column on Monday, Adam Feldman analyzed what could be driving President Donald Trump’s success on the emergency docket by comparing the court’s responses to applications from the past three presidential administrations (the first and second Trump administrations and the Biden administration).
Podcasts
Advisory Opinions
Who’s the Loneliest Supreme Court Justice?
Sarah Isgur and David French discuss a few orders from the Supreme Court, a CNN article on Justice Ketanji Brown Jackson, and two dueling en banc decisions from the U.S. Court of Appeals for the 3rd Circuit.
Amarica's Constitution
Friends Reunited, Citizens Divided - with Justice Stephen Breyer
During a recent event in Boston, Akhil Amar engaged in a debate with retired Justice Stephen Breyer about a case Breyer sat on: the sometimes-notorious Citizens United v. FEC from 2010.
A Closer Look
Justice John Catron
Friday’s A Closer Look is typically a judicial biography. This week we cover Justice John Catron, who served on the court from 1837 to 1865.
Justice John Catron was a man of contradictions – for example, a southern slaveholder, he also opposed the secession of Tennessee while on the court and sought to preserve the Union. At the same time, Catron remains to this day a somewhat “obscure figure,” with not one full-length biography to his name.
Catron’s birthplace and date are uncertain, with some sources putting it in Pennsylvania around 1786, and others in Virginia between 1781 and 1792. What is known is that he was born into a poor German family, had minimal schooling, married in 1807, and, by 1812, settled in Sparta, Tennessee. Not long after, Catron served as a private under then-General Andrew Jackson in the Alabama campaigns against the Creek Indians and the War of 1812, reportedly becoming so ill that he had to be brought back to Tennessee in a wagon. (Some sources say he also fought in the Battle of New Orleans.)
Catron was licensed to practice law in 1815 and then served as a prosecutor on a Tennessee “mountain circuit.” He relocated to Nashville in 1818, and soon had a thriving practice centered on land law and disputes. In 1824, the Tennessee Legislature elected Catron to the state’s Supreme Court of Errors and Appeals, then Tennessee’s highest court, where he served for seven years. His best-known ruling there was reportedly one in 1829 that disbarred a lawyer for fighting a duel in Kentucky. Catron rejected the argument that a duel amounted to an “honorable homicide” and wrote that the law treated it as “a wicked and wilful [sic] murder.” In 1831, he became the court’s first chief justice and served for three more years. As chief justice, Catron upheld the freeing of a group of enslaved people in an 1834 case, but only on the condition that they leave the United States. The next year, he upheld Tennessee’s extension of its criminal laws over Cherokee land inside the state.
Catron’s involvement in politics reportedly led to his chief justiceship ending; one scholar writes that then-presidential-candidate Hugh Lawson White’s allies forced Catron off the bench after he backed Martin Van Buren over White in the 1836 election, while another account says the legislature retaliated for his backing of Van Buren by abolishing the Court of Errors and Appeals altogether. Catron then went on to manage Van Buren’s Tennessee campaign.
Catron’s support for Van Buren and “align[ment] with Jacksonian democracy” led to Jackson nominating Catron to the Supreme Court on his last full day as president on March 3, 1837, the same day that Congress added two seats to the Supreme Court (bringing it to nine). Five days after Jackson’s nomination, with Van Buren now in the White House, the Senate confirmed Catron by a vote of 28 to 15.
Catron “never sought to take a leading part in the great public questions before the Supreme Court,” instead opting for opining on “complex technical matters” and the common law. Averaging 7.5 opinions per term (a lower rate than any Taney Court colleague except Justice James Wayne), Catron usually sided with Chief Justice Roger Taney and often took cases over Spanish land grant disputes. Catron did make clear some of his own views; in the 1853 case of Ohio Life Insurance & Trust Co. v. Debolt, he warned against the rapid growth of corporations, writing that “these numerous bodies of associated wealth” risked “stand[ing] above the state government creating them.”
Catron’s most significant moment on the court came in the 1857 case of Dred Scott v. Sandford, where he agreed in his concurrence that Congress lacked the power to prevent slavery in the western territories and that Scott remained enslaved. While the case was pending, he also wrote privately to then-president-elect James Buchanan, asking him to persuade Justice Robert Grier to join the majority (Grier ultimately did so).
Catron enslaved people throughout his life, and in 1827 he reportedly fathered a son whom he never acknowledged with Sally, an enslaved woman. However, Catron did not follow Tennessee out of the Union and in 1861 returned to Nashville to try to persuade the state’s leaders not to secede. After they declined, he left for Kentucky and his property in Tennessee was confiscated. He kept riding circuit in Kentucky and Missouri, and when the army locked up civilians who sympathized with the Confederacy, Catron turned away their requests for habeas corpus, effectively supporting the detentions. Once federal forces took control of Nashville, he went back and opened the U.S. district court there in June 1862. Catron dissented in the 1863 Prize Cases, arguing that President Abraham Lincoln could not blockade Southern ports without Congress’ approval.
Catron died in his Nashville home in May 1865, shortly after the Confederate surrender. Henry Stanbery was nominated by President Andrew Johnson to fill his seat, but the Senate did not act before Congress eliminated the seat in 1866 to keep Johnson from appointing justices.
SCOTUS Quote
CHIEF JUSTICE ROBERTS: “… The parties are certainly interested in candidates who will fund themselves because that presents less strain on the party's resources.”
MR. HERMAN: “Mr. Chief Justice, they are interested in those candidates only inasmuch as they get elected. The moment that the public turns on them, they won't be interested. And certainly the public was not particularly interested in Mitt Romney, who spent a significant amount of money on his own behalf, and many other spectacular flameouts.”
(Laughter.)
CHIEF JUSTICE ROBERTS: “I'm not sure we need characterizations of the political candidates ...”
— Davis v. Federal Election Commission (2008)