Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not necessarily reflect the opinions of SCOTUSblog or its staff.

Last year, federal prosecutors obtained a conviction against Hunter Biden under 18 U.S.C. § 922(g)(3), the federal statute that makes it a felony for any “unlawful user” of a controlled substance to possess a firearm. The government has also invoked the same statute against numerous individuals who smoked marijuana at some point before buying a gun, even in states where marijuana is legal. Under a longstanding regulation interpreting the statute, tens of millions of Americans could fall within its reach.

Later this term, in United States v. Hemani, the Supreme Court will address unlawful-user prosecutions under Section 922(g)(3). The case has been billed as the court’s next major Second Amendment battle. But it need not be. The court can and should avoid that constitutional thicket by resolving the case on a statutory ground. That outcome might be less dramatic, but it could have broader practical significance for how courts deal with open-ended language in a wide array of criminal statutes.

It has been slightly over six weeks since the Supreme Court heard oral arguments in the challenge to President Donald Trump’s power to impose sweeping tariffs in a series of executive orders earlier this year. During the lengthy debate over those tariffs on Nov. 5, the justices appeared doubtful that the president has such authority under the International Emergency Economic Powers Act, the 1977 law on which he relied.

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

The first “opinion of the court” for the 2025-26 term was a summary disposition in a criminal case (an immediate grant of certiorari and reversal of the lower court decision without further briefing or oral argument). In Clark v. Sweeney, a short and little-noticed per curiam opinion with no identified author or dissents, the court reversed a grant of habeas corpus relief “because the Court of Appeals departed dramatically from the principle of party presentation.” While the court did not explain it, this apparently means a practice in which courts may rely only on arguments actually presented to them by the parties.

It’s the age-old question: Does the Supreme Court decide its cases based on rank partisanship rather than legal principles?

Many scholars and commentators unhesitatingly answer in the affirmative. Such individuals may acknowledge that the plurality of Supreme Court decisions are unanimous (42% last term) and that the vast majority of the court’s cases do not break down by the 6-3 conservative/liberal split (over 90% last term). But, in their view, the important cases are decided along partisan lines.

AV Ristorante is a recurring series by Brian Fitzpatrick.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

As we all know – how could we have missed it! – the Supreme Court heard oral argument in Trump v. Slaughter just a week ago, on Monday, Dec. 8. That case involves the erstwhile commissioner of the Federal Trade Commission, Rebecca Slaughter, and tees up the question whether so-called “independent” federal agencies violate the constitutionally mandated separation of powers. The case would have been near and dear to the heart of my old boss, Justice Antonin Scalia, who vehemently thought these agencies should be subject to the president’s control.