SCOTUStoday for Monday, November 24

Welcome to Thanksgiving week! Here’s what to expect from SCOTUStoday: Tomorrow, you’ll receive a regular edition of the newsletter, then Wednesday’s edition will be abridged. We will not be sending SCOTUStoday on Thursday or Friday to give our team a holiday break. We are so grateful to have you as part of the SCOTUSblog community!

SCOTUS Quick Hits

• On Friday, Texas asked the Supreme Court to clear the way for it to use a new congressional map intended to increase the chances that Republicans retain control of the U.S. House of Representatives next year. Justice Samuel Alito – who fields emergency requests from the 5th Circuit, which includes Texas – granted an administrative stay on Friday night and instructed the challengers to file their response by 5 p.m. EST today.
• The court is expected to release an order list at 9:30 a.m. EST this morning, which may reveal the status of the Trump administration’s two petitions on birthright citizenship.
• The Supreme Court Building will be closed on Thursday and Friday this week.
• Mark your calendars: SCOTUSblog will be hosting a live blog during the oral argument in Trump v. Slaughter on Monday, Dec. 8. The live blog will begin at 9:30 a.m. EST.

Morning Reads

• Trump White House prepares tariff fallback ahead of court ruling (Josh Wingrove, Bloomberg, Yahoo Finance) — As it awaits the Supreme Court’s ruling on President Donald Trump’s signature tariffs, the Trump administration is preparing “fallback options” to use if the current tariffs are struck down, according to Bloomberg. “Both the Commerce Department and the Office of the US Trade Representative have studied Plan B options if the court rules against the administration, according to US officials familiar with the planning. Those include Section 301 and Section 122 of the Trade Act, which grant the president unilateral ability to impose duties.” Still, the “administration is holding out hope that it will win the case outright,” because these other laws offer more limited tariff powers than what the administration previously has claimed.
• Expert says state courts misread McGirt as tribes sue Stitt over hunting (Alexia Aston, The Oklahoman)(Paywall) — Five years after the Supreme Court held that much of eastern Oklahoma remains Native American territory, “Oklahoma’s governor and the state’s largest tribal nations” continue to spar over what that decision should mean for hunting and fishing policies in the state, according to The Oklahoman. “[T]he Cherokee, Chickasaw and Choctaw nations contend the McGirt ruling affirms their right to regulate hunting by their members on their reservations.” The governor’s office, on the other hand, says the Supreme Court’s “decision applies only to major crimes.” So far, “state courts have sided with [Gov. Kevin] Stitt’s interpretation.”
• Making a Case for the American Experiment (Suffolk University) — Former Justice Stephen Breyer described the Constitution as the “most marvelous thing about this country” during a Thursday appearance at Suffolk University in Boston, according to the school’s coverage of the event. He also spoke about his work on the court and offered advice to a student who is worried about the political conflicts of today. “Find someone you believe is intelligent and you entirely disagree with. And talk to them. And really listen,” Breyer said.
• Speaker Johnson Proves the Necessity of Reviving the Nondelegation Doctrine (Josh Robbins, National Review)(Paywall) — In a column for the National Review, Josh Robbins called on the court to revive its nondelegation doctrine, which prevents Congress from delegating its lawmaking powers to other branches of government, and bar Trump from using the International Emergency Economic Powers Act to impose tariffs. “Under Trump’s interpretation of IEEPA, the issue becomes not whether the president has ‘overstepped’ his statutory boundaries … but whether Congress has unconstitutionally handed its powers to the president,” Robbins wrote. “It now falls to the Supreme Court in the tariff case to enforce the Constitution’s limits on Congress.”
• Congratulations To The 2026 Bristow Fellows (David Lat, Original Jurisdiction)(Paywall) — In a Thursday post for his Substack, David Lat highlighted the recent law school grads who will join the Office of the Solicitor General next year as “the holders of Bristow Fellowships — prestigious one-year fellowships that allow lawyers to work on Supreme Court cases just a few years out of law school.” Lat observed that “[m]ultiple clerkships remain common for Bristow Fellows: three out of the four will have completed two clerkships, one for a circuit judge and one for a district judge, before arriving at OSG.”

A Closer Look: The Longest Supreme Court Opinion

It’s not just you – the court’s opinions have steadily grown longer. In 2016, majority opinions averaged roughly 4,200 words, compared to 5,300 words last term (both significantly up from the median length of around 2,000 words back in the 1950s). Indeed, the Roberts court set the record over a decade ago for releasing the lengthiest majority opinions, and it shows no sign of slowing down.  

Which is not to say there were no lengthy opinions back in the day. Indeed, the case that still may hold the title for “longest opinion” might surprise you: it’s the 1976 decision in Buckley v. Valeo. That per curiam opinion rang in at 65,398 words. And across the majority, concurrences, and dissents, Buckley totaled a staggering 76,000 words (for context, this is roughly the same length as J.K. Rowling’s first Harry Potter book). 

In Buckley, the justices considered challenges to amendments to the Federal Election Campaign Act of 1971 – part of the post-Watergate push to reform federal campaign finance laws. The justices ultimately held that restricting the amount an individual may give to a single candidate or a committee is generally constitutional, but restricting the amount that could be spent by candidates and their committees is not.

Justices have long varied in their approach to opinion length through the years, with Chief Justice Earl Warren authoring around just 4,000 words in the court’s majority opinion in Brown v. Board of Education. This was intentional: Warren reportedly asked the clerk primarily responsible for helping to draft Brown to make the opinion as brief as possible and written in plain English rather than legalese. (Perhaps the shortest opinion ever, at six words, reads: “The United States never pay costs,” and was the 1817 (Marshall era) per curiam ruling in United States v. Barker.)

With regard to the current court, Justice Samuel Alito has a tendency to produce lengthy majority opinions, such as in Dobbs v. Jackson Women’s Health Organization (35,631 words), which overruled the court’s recognition of a constitutional right to abortion in Roe v. Wade. Nevertheless, between the 2005 and 2024 terms, Chief Justice John Roberts wrote the most words in majority opinions, and Justices Neil Gorsuch and Clarence Thomas led the pack in terms of overall word count. Justices Sonia Sotomayor and Ketanji Brown Jackson penned the most words in dissent, amid a trend where ideological divides may be fostering more voluminous separate writing.  

While some scholars have taken majority opinion length to be a direct correlate of the case’s importance, this doesn’t make such wordiness a good thing. As Chief Justice Roberts once said (albeit in reference to briefs), “I have yet to put down a brief and say, ‘I wish that had been longer.’ . . . Almost every brief I’ve read could be shorter.”

SCOTUS Quote

“This decision might as well be written on the dissolving paper sold in magic shops.”

— Justice Samuel Alito in Fulton v. City of Philadelphia

On Site

From Amy Howe

Texas Comes to the Supreme Court

Texas came to the Supreme Court on Friday, asking the justices to clear the way for it to use a new congressional map for next year’s elections. On Tuesday, by a vote of 2-1, a three-judge district court in Texas barred the state from using the map, concluding that it unconstitutionally sorts voters based on race. Texas Solicitor General William Peterson urged the court to pause that ruling, telling it that “[t]he confusion sown by the district court’s eleventh-hour injunction poses a very real risk of preventing candidates from being placed on the ballot and may well call into question the integrity of the upcoming election.” For more on the new application, read Amy’s analysis.

Contributor Corner

Should All States Have to Use Grand Juries?

Today, more than half of states make the use of a grand jury optional, despite the fact that it’s required by the Fifth Amendment. That’s because that part of the Fifth Amendment has not been determined by the Supreme Court to apply to the states. In his latest SCOTUScrim column, Rory Little explained the obstacles standing in the way of such a decision and why he believes the grand jury right will soon appear on the court’s (publicly acknowledged) radar.

Will the Supreme Court DIG it?

In his latest Nuts and Bolts column, Stephen Wermiel explored some of the mysteries surrounding DIGs, or cases that the court has dismissed as improvidently granted. The justices rarely explain the reasons behind such dismissals, he noted, but court watchers and commentators have deduced that procedural problems, a gap between what’s laid out in a petition and what’s actually contended at oral argument, and a deadlock among the justices can all lead to DIGs.