SCOTUStoday for Thursday, December 11

We are excited to announce that we’ve launched an Interim Docket Blog, which will feature analysis of interim docket developments from Jack Goldsmith, William Baude, and Daniel Epps.

Goldsmith is a professor at Harvard Law School and a senior fellow at the American Enterprise Institute. He writes about executive power issues at Executive Functions. Baude is a professor and faculty director of the Constitutional Law Institute at the University of Chicago Law School. Epps is a professor at Washington University School of Law and a nationally recognized expert on the Supreme Court. Baude and Epps co-host the Divided Argument podcast.

SCOTUS Quick Hits

• On Wednesday, the justices heard arguments in Hamm v. Smith, on how and whether courts should consider the cumulative effect of multiple IQ scores when applying the court’s ban on executing people who are intellectually disabled, and FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., on whether the federal courts should recognize a federal statute as implying a private right of action (that is, providing the ability for private parties to sue) when the words of the statute do not explicitly authorize it.
• On Friday, the justices will gather for their final private conference of 2025 to discuss cases and vote on petitions for review. They may announce cases that have been granted that afternoon.
• The court could issue its decision in the interim docket case on President Donald Trump’s effort to deploy the National Guard to Illinois at any time.

Morning Reads

• Judge blocks Trump administration from deploying California National Guard members in Los Angeles (Melissa Quinn, CBS News) — As the Supreme Court continues to weigh whether the president can deploy the National Guard in Illinois, a federal judge in California has “blocked the Trump administration from deploying members of the California National Guard in Los Angeles and directed it to return control of the Guard to Gov. Gavin Newsom,” according to CBS News. The Wednesday decision from U.S. District Judge Charles Breyer stated that the administration has not satisfied the requirements for federalizing and deploying the National Guard within the U.S. “The judge put his order on hold until Monday, likely to give the Justice Department time to appeal.”
• U.S. Manufacturers Slow Orders Ahead of Supreme Court Tariff Ruling (Paul Berger, The Wall Street Journal)(Paywall) — As they wait to see whether the Supreme Court will strike down a significant portion of Trump’s tariffs, U.S. manufacturers are reducing their “orders of parts and raw materials,” according to The Wall Street Journal. “A lot of folks are just sort of hedging a little bit that these tariffs are going to get rolled back,” said Mike DuVall, global head of supply-chain strategy at GEP, a software and consulting company, to the Journal.
• CoStar asks US Supreme Court to hear real estate antitrust case (Mike Scarcella, Reuters) — A dispute between “rival real estate data provider[s]” could soon be reviewed by the Supreme Court, according to Reuters. CoStar Group has asked the court to overturn a decision from the U.S. Court of Appeals for the 9th Circuit that reinstated antitrust allegations made by Commercial Real Estate Exchange Inc. “CREXi claims CoStar violated antitrust law by locking real estate brokers into using its data platforms and blocking rivals from accessing key web tools. CoStar has denied any wrongdoing, saying it has no obligation to provide competitors access to its websites and databases.” In its petition for review, “CoStar said the 9th Circuit order, if left in place, would deter companies from investing in proprietary tools if courts can force firms to share those assets with rivals.”
• Some Answers to Justice Barrett’s Questions in Trump v. Slaughter (Steven Calabresi, The Volokh Conspiracy, Reason) — In a post for Reason’s Volokh Conspiracy blog, Steven Calabresi reflected on questions raised by Justice Amy Coney Barrett during Monday’s argument in Trump v. Slaughter, a case on the president’s authority to fire the heads of independent, multi-member federal agencies. After noting that she had raised the possibility of issuing a “narrower” ruling by, for example, holding that the president’s power to remove federal officials stems from the power to appoint them, Calabresi urged the court to instead hold that the president derives removal power from the Constitution’s executive power vesting clause.
• How the Supreme Court broke college football, and how Congress can fix it (Conn Carroll, Washington Examiner)(Paywall) — In an analysis for the Washington Examiner, Conn Carroll contended that past Supreme Court cases limiting the NCAA’s ability to “control television revenues” and “regulate player movement and compensation” have put the future of college football at risk. “College football’s chaos is not the product of too much regulation but of a Supreme Court that stripped the sport of the tools every successful league needs. The justices themselves pointed Congress to the solution: a tailored antitrust exemption allowing a unified governing body to restore balance, protect athletes, and preserve the rivalries that make the sport great,” Carroll wrote.

A Closer Look: When the Justices Have (Too?) Much to Say

In the 2024-25 term, the court issued 98 separate opinions (50 concurrences and 48 dissents) compared to 67 majority opinions. Trump v. CASA and United States v. Skrmetti, both of which yielded six separate writings from the justices, tied for the highest number of individual opinions.

While that may seem like a lot of separate opinions, it is far from the record. Indeed, the cases that top this list were issued over 50 years ago, and only one year apart. They are the 1971 decision in New York Times Co. v. United States and the 1972 ruling in Furman v. Georgia. Both featured a staggering 10 opinions each – a brief per curiam majority backed by separate writings from all nine justices (six concurrences and three dissents in the former; five concurrences and four dissents in the latter). 

In New York Times Co. v. United States (i.e., the Pentagon Papers case) the justices grappled with the Nixon administration’s attempt to block publication of classified documents on the Vietnam War. The court ultimately held that prior restraint on the press violated the First Amendment. The ruling was decided on a rushed timeline (the entire legal process took just 15 days), and featured a per curiam opinion supplemented by some impassioned, occasionally personal concurrences, alongside a number of pointed dissents. Furman v. Georgia halted executions nationwide by ruling that the death penalty, as then practiced, constituted cruel and unusual punishment under the Eighth Amendment, with each justice effectively providing their own rationale (from Justice O. William Douglas’ focus on racial bias to Chief Justice Warren Burger’s institutionalist concerns).

Of course, justices have long varied in their approach to separate opinions. Unlike in modern practice, the court spent (roughly) its first decade releasing seriatim opinions rather than a collective majority opinion. This ended with Chief Justice John Marshall’s push for unanimity in the early 19th century. In (somewhat) more recent times, cases like 1952’s Youngstown Sheet & Tube Co. v. Sawyer, which limited presidential power to seize steel mills during the Korean War, garnered seven opinions (five concurrences and one dissent in addition to the majority opinion), as did 2023’s United States v. Rahimi which upheld a federal law that prevented persons subject to a domestic-violence restraining order from possessing a gun.

While some may view a bevy of individual opinions as a sign of healthy debate that helps refine the law, others see it as undermining institutional unity. As Chief Justice John Roberts himself said back in 2007, “[E]very justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

SCOTUS Quote

MR. FRANCISCO: “Your Honor, I don’t have a position on whether it’s constitutional or not. I’m willing to assume for the sake of argument here that it’s constitutional, but it’s still only the second of the two arguments –­”

JUSTICE KAVANAUGH: “You’re not going to want that cited back to you in a couple years.”

— National Republican Senatorial Committee v. Federal Election Commission

On Site

Argument Analysis

Court Appears Divided in Hamm v. Smith

The Supreme Court on Wednesday wrestled with the case of an Alabama man who has been on that state’s death row for more than two decades. The question before the justices was how the lower courts should have addressed Joseph Smith’s claim that he is intellectually disabled and therefore cannot be executed when Smith has taken five separate IQ tests over a span of almost 40 years. After roughly two hours of oral argument, the justices were divided over whether the lower courts had used the proper analysis in concluding that he is intellectually disabled. For more on the case, read Amy’s argument analysis.

Relist Watch

Relist Rodeo: Firearm Restrictions, Searches Incident to Arrest, DNA Evidence, and “Clearly Established” Law

In his latest Relist Watch column, John Elwood explored a new batch of relisted petitions, including several about gun rights and one about a motion to suppress a search of a fanny pack.

Contributor Corner

Text and History, not History and Tradition

In her latest A Second Opinion column, Haley Proctor explained why “text and history” is “a better label for the court’s approach to the Second Amendment – and constitutional interpretation more broadly” – than “history and tradition.” Considering tradition, she contended, means allowing “popular practices long postdating the ratification of the Constitution” to influence constitutional interpretation, leading to outcomes “that would be unrecognizable to those who chose to codify them.”