SCOTUStoday for Tuesday, October 28

Harvard University was founded on this day in 1636. About 200 years later, in 1832, the first Supreme Court justice to have a Juris Doctorate degree, Benjamin Robbins Curtis, graduated from its law school.

SCOTUS Quick Hits

• The Trump administration on Monday urged the Supreme Court to pause an order from the U.S. Court of Appeals for the District of Columbia Circuit requiring the temporary reinstatement of the top U.S. copyright official, who was fired earlier this year.
• Several other cases on the interim docket are fully briefed and awaiting the court’s ruling, including the Trump administration’s request to be allowed to federalize and deploy the National Guard in Illinois.
• We’re less than one week away from the start of the court’s November sitting. We’ll be publishing previews of the cases scheduled to be argued throughout this week. We’ll also be live blogging the tariffs argument on Wednesday, Nov. 5.

Morning Reads

• Trump Wants to cancel more funding during the shutdown. Courts have hampered his earlier efforts (Rebecca Boone and Sudhin Thanawala, Associated Press) — One month after the Supreme Court held that the Trump administration could withhold nearly $4 billion in foreign-aid funding, the administration’s effort to make other funding cuts remains very much in the spotlight — and very much a source of legal disputes, according to the Associated Press. The AP identified “more than 150 lawsuits” brought by states, cities, nonprofits and other groups over funding cuts in recent months, for such things as “jobs, school lunches, health programs, scientific research, infrastructure projects, foreign assistance, disaster preparedness, education initiatives and other programs.” “As of early October, court orders were at least temporarily blocking the Trump administration’s decisions in 66 of 152 lawsuits over federal spending, an AP analysis shows. In 37 of those cases, courts had allowed the administration to proceed. In 26 of the cases, a judge had yet to rule on the matter. The remaining 23 had either been dropped or consolidated.”
• GOP Senator Files Supreme Court Brief With Democrats Against Donald Trump (Jenna Sundel, Newsweek) — Republican Sen. Lisa Murkowski joined dozens of her Democratic colleagues in a Supreme Court brief that argues against the Trump administration’s claim that the president has the “ability to authorize tariffs under the International Emergency Economic Powers Act,” according to Newsweek. Murkowski, who was the only Republican senator involved in the brief, “has argued for limiting the president’s power to impose tariffs without congressional approval.”
• Supreme Court could load up on gun cases this term (Jack Birle, Washington Examiner)(Paywall) — The merits docket for the 2025-26 already includes two cases on gun rights, and the justices could add more in the coming months. “Among the petitions the Supreme Court has yet to respond to, there are several key gun cases,” including disputes over the Second Amendment rights of adults under age 21, according to the Washington Examiner. Michael Williams, general counsel for the pro-gun group American Suppressor Association, told the Examiner that the theme of this term seems to be “who can possess firearms and where, rather than … which ‘hardware’ is legal.”
• Supreme Court Associate Justice Sonia Sotomayor Offers Advice, Insight to BU Law Students at Annual Shapiro Lecture (Molly Glass, BU Today) — Justice Sonia Sotomayor visited Boston University’s School of Law on Friday to speak with students about the legal profession and the value of clerkships, and to share some stories about her childhood, according to BU Today. “The greatest professional mistake I made is that I didn’t clerk. Of course, I say that tongue-in-cheek, because I’m on the Supreme Court, so it wasn’t a fatal error, but it was not a good judgment,” she said. Reflecting on her childhood, Sotomayor noted that witnessing her mother’s patience with a long-winded friend helped her see the value of finding the good in everyone. “I think most of my colleagues like me as a person, and they like me because I like them as people—even when I think they’re crazy as judges, and even though I disagree with them. Of course, there are moments I’m deeply angry, and other moments I’m deeply sad, but I also realize I have to live with them, and I have to go on to the next case, the next battle, the next moment,” she said.
• Don’t Tell Democrats How Their Judges Answered (Michael A. Fragoso, National Review) — In a Monday entry on the National Review’s Bench Memos blog, Michael A. Fragoso highlighted what he sees as apparent confusion over comments about Supreme Court precedent during recent judicial confirmation hearings. Specifically, he focused on those who have criticized Rebecca Taibleson, whom Trump nominated to the U.S. Circuit Court of Appeals for the 7th Circuit, for declining to say that Obergefell v. Hodges, the same-sex marriage case, was decided correctly. “Do you know who else refused to say that Obergefell was decided correctly, while saying that ‘other cases that had come before the court’ were? Ketanji Brown Jackson, that’s who,” Fragoso wrote, pointing to judicial nominees’ typical practice of declining to comment on precedent.

A Closer Look: Rearguments at the Supreme Court

Two weeks ago, the justices heard oral arguments for the second time in Louisiana v. Callais, a challenge to a federal court order that required Louisiana to create a second majority-Black congressional district. The case was originally argued in March, but on the last day of the 2024-25 term in June, the court announced that it would be restored to the calendar for reargument this term. On Aug. 1, the parties were asked to address additional questions about the role of race in redistricting. As Amy Howe wrote in her Oct. 10 preview, there is no way to know exactly why the justices chose to schedule Callais for another argument. But how common is it for the bench to rehear a case?

In the last 10 terms, the court has only heard rearguments in five cases: Johnson v. United States in 2015; Jennings v. Rodriguez in 2017; Sessions v. Dimaya in 2017; Knick v. Township of Scott in 2019; and most recently, Callais.  

One can get a better idea of why (and when) the court orders reargument by looking at past instances of when it decided to do so. This has historically occurred when the justices deem a second round of argument necessary for either clarifying a legal issue raised in the case, or carving out a consensus, such as breaking a 4-4 deadlock on an eight-member court.

The former was the basis for reargument in a number of landmark cases, such as 2010’s Citizens United v. Federal Election Commission, where the court broadened the case from a relatively narrow question of statutory interpretation to address additional issues, including whether the court should overrule precedent upholding political spending restrictions by corporations under the First Amendment. This also occurred in Brown v. Board of Education, where the court ordered reargument and “asked the litigants to discuss the original intent of the 14th Amendment and whether it gave the court the power to desegregate public schools.” Shortly before the second argument could occur, Chief Justice Fred Vinson passed away and was replaced by former California Gov. Earl Warren, who led a unanimous court in its 1954 ruling that separating children in public schools based on race was unconstitutional.

The second circumstance – seeking court consensus or a full bench – played a role in the decision to have Roe v. Wade reargued. Roe was initially argued in 1971 with the bench short two justices. The court then decided to hear it again the following year, however, after Justices Lewis Powell and William Rehnquist joined the court.

As with other court decisions, justices can dissent from the decision to have a case reargued. In Callais, Justice Clarence Thomas did so, writing, “I am hopeful that this Court will soon realize that the conflict its §2 jurisprudence has sown with the Constitution is too severe to ignore. Because the Court declines to reach that conclusion today and instead inexplicably schedules these cases for reargument, I respectfully dissent.”

SCOTUS Quote

“But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”

— Justice Potter Stewart in Griswold v. Connecticut

On Site

From Amy Howe

Another Case on Trump’s Removal Power

The Trump administration on Monday afternoon asked the Supreme Court to pause an order by a federal appeals court in Washington, D.C., that temporarily reinstated the top U.S. copyright official after her firing earlier this year. U.S. Solicitor General D. John Sauer called the ruling by the U.S. Court of Appeals for the District of Columbia Circuit “another case of improper judicial interference with the President’s power to remove executive officers.” For more on the request, read Amy’s analysis.

Contributor Corner

The Dissent Everyone Knows Was Right

In her latest In Dissent column, Anastasia Boden wrote about the privileges or immunities clause of the 14th Amendment, which declares that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Specifically, she explored a Supreme Court ruling from 1873 that significantly narrowed the application of that clause — and Justice Stephen Field’s memorable dissent. Field “bellowed that the court had turned the amendment’s important promise of liberty into ‘a vain and idle enactment, which accomplishing nothing.’ Nearly every scholar to have studied the question now agrees.”