SCOTUStoday for Tuesday, December 16

Sixty years ago, on Dec. 16, 1965, students Mary Beth Tinker and Christopher Eckhardt were sent home from school for wearing black armbands to protest the U.S. government’s policy in Vietnam. They, along with Mary Beth’s brother, John, went on to win a major Supreme Court case on free speech.

SCOTUS Quick Hits

• On Monday, the court announced that it will hear argument in Pitchford v. Cain, on racial discrimination in jury selection. For more on this case and other takeaways from Monday’s order list, see the On Site section below.
• The court could issue decisions in the interim docket cases on President Donald Trump’s effort to deploy the National Guard to Illinois and a dispute between the Trump administration and immigration judges at any time.

Morning Reads

• Court battle begins over California’s new congressional map designed to favor Democrats (Michael R. Blood and Trân Nguyên, Associated Press) — A panel of federal judges on Monday held a hearing on California’s new congressional map, which is “designed to help Democrats flip a string of U.S. House seats,” according to the Associated Press. The Trump administration and the California Republican Party have “accused California of gerrymandering its map in violation of the Constitution by using race as a factor to favor Hispanic voters” and asked the panel “to grant a temporary restraining order [preventing the map from being used] by Dec. 19 — the date candidates can take the first official steps to run in the 2026 election.” In a statement to the Associated Press, Brandon Richards, a spokesperson for California Gov. Gavin Newsom, highlighted the Supreme Court’s recent decision to allow Texas to use its new congressional map. “In letting Texas use its gerrymandered maps, the Supreme Court noted that California’s maps, like Texas’, were drawn for lawful reasons,” Richards said.
• Trump’s Cuts to U.S. Labor Board Leave Festering Disputes and a Power Struggle (Rebecca Davis O’Brien, The New York Times)(Paywall) — The Supreme Court’s eventual ruling in Trump v. Slaughter, a case on the president’s authority to fire the heads of independent, multi-member agencies, could hold significant consequences for the National Labor Relations Board, which is charged with addressing claims of unfair labor practices and efforts to form unions. Already, the NLRB is struggling to function, due to board vacancies and uncertainty about the future, according to The New York Times. “The agency … has for months had merely a single member on its five-seat board, two short of the required number to hear cases. Even if the vacancies are filled — the Senate could vote to confirm two nominees from President Trump as soon as this week — the board could fundamentally change if the Supreme Court rules in coming months that the president has wide powers to fire appointed officials at federal agencies.”
• Wisconsin Supreme Court backs Catholic Charities’ tax exemption (Jessie Opoien, Milwaukee Journal Sentinel)(Paywall) — On Monday, the Wisconsin Supreme Court ordered Wisconsin officials to “declare Catholic Charities Bureau, Inc. and its Superior-based chapter eligible for tax exemption from the state’s unemployment insurance program,” according to the Milwaukee Journal Sentinel. The new decision follows a ruling from the U.S. Supreme Court in June, which said that Wisconsin’s rules for the tax exemption unlawfully sorted religious organizations “based on theological differences.” The justices “sent the case back to the state’s high court with directions to follow its findings.”
• Second Circuit swats ex-college hoopers’ bid for NIL backpay (Josh Russell, Courthouse News Service) — In June 2021, the Supreme Court paved the way for college athletes to be paid for their name, image, and likeness rights in a decision that prompted a wave of additional lawsuits over athlete compensation. On Monday, the U.S. Court of Appeals for the 2nd Circuit upheld a lower court’s decision to dismiss one such dispute over whether the NCAA owed backpay to athletes who left college before new NIL rules were in place, after determining that it was “time-barred under the applicable statute of limitation,” according to Courthouse News Service. “It is undisputed that plaintiffs filed their lawsuit on July 1, 2024, which is more than four years after June 14, 2016, the last day any putative class member was enrolled in an NCAA-affiliated university,” read the 2nd Circuit panel’s unsigned summary order.
• Why a centuries-old whistleblower law may be heading to the Supreme Court (Jenna Greene, Reuters) — In a column for Reuters, Jenna Greene explored a case that, in her view, “seems destined for U.S. Supreme Court review,” about whether the False Claims Act “runs afoul of executive branch authority by allowing unappointed whistleblowers to sue on behalf of the federal government.” In a different case in 2023, Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett all expressed interest in the court addressing whether the statute’s allowance of such whistleblowers to “operate without direct accountability to anyone in the executive branch” violates Article II of the Constitution.

A Closer Look: Impeaching a Justice

Like the president or vice president, “all civil Officers of the United States,” which includes federal judges and justices, “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In practice, this means bringing an article (or articles) of impeachment in the House of Representatives, garnering a majority vote on this, and then moving to the Senate for a trial – where two-thirds of its members must then vote to convict.

That might sound simple(ish), but since the nation’s founding, only one justice has ever been impeached: Samuel Chase in 1804. Chase, a Federalist known for his partisan rhetoric against Republicans, was charged with eight articles over his handling of certain trials before him. Specifically, the justice supposedly refused to dismiss biased jurors, limited defense witnesses, preemptively ruled on treason law, and used grand jury charges to rail against Jeffersonian “mobocracy.” Chase’s Senate trial, delayed a month at his request to get his defense ready and spanning February to March of 1805, ended in acquittal; his opponents fell shy of the two-thirds necessary to remove him when a bloc of several Republicans and Federalists refused to do so. In a 2003 speech, the chief justice noted that “Chase was one of those people who are intelligent and learned, but seriously lacking in judicial temperament.”

In the 1950s and 60s, Chief Justice Earl Warren faced a barrage of calls for impeachment, sparked by his court’s controversial decisions on civil rights. Indeed, following such landmark decisions as Brown v. Board of Education, “Impeach Earl Warren” billboards could be found alongside certain Southern highways. But pushes for Warren’s impeachment (including a multi-year effort by the founder of the John Birch Society) did not gain any significant traction among members of Congress.

Justice Abe Fortas came closer to the brink in 1969 under very different circumstances, resigning amid two financial scandals, one involving over $20,000 in undisclosed fees from a financier indicted for securities fraud. Several days before Fortas’ resignation, Rep. H.R. Gross had announced that he would introduce articles of impeachment against Fortas. The justice stepping down prevented a House vote, which relieved many members of Congress who were not eager for the “unpleasant task of voting on an impeachment proceeding and subsequence [sic] trial.”

A year after Fortas’ 1969 resignation, House Minority Leader Gerald Ford called for impeachment proceedings against the liberal Supreme Court lion Justice William O. Douglas, alleging ethical breaches like undisclosed payments from a casino-linked foundation and conflicts of interest in a libel case. (Ford told the House on April 15, 1970, that an impeachable offense is “whatever a majority of the House of Representatives considers it to be at a given moment in history.”) A bipartisan subcommittee probed Douglas’ record for six months before voting along party lines to drop it.

Despite their weak track record, calls to impeach justices persist to this day. Most recently, in July 2024, Rep. Alexandria Ocasio-Cortez introduced articles of impeachment against Justices Clarence Thomas and Samuel Alito, citing decades of receiving undisclosed gifts from parties with court business as violations of federal disclosure laws. Ocasio-Cortez said that Congress had a “legal, moral, and democratic obligation to impeach.” As with efforts to impeach prior justices, this stalled in the House.

SCOTUS Quote

“The courts are without authority to repress evil save as the law has proscribed it and then only according to law.”

— Chief Justice Harlan Fiske Stone in Viereck v. United States

On Site

From Amy Howe

Court to Hear Case on Racial Discrimination in Jury Selection

The Supreme Court on Monday morning agreed to take up the case of a Mississippi man who contends that he was sentenced to death in violation of the Constitution’s ban on racial discrimination in jury selection. Pitchford v. Cain is the only case from the justices’ Dec. 12 conference in which they’ve granted review so far. The court did not act on several high-profile petitions that it considered last Friday, including challenges to state laws banning assault rifles and large-capacity magazines. Read Amy’s analysis to learn more.

Contributor Corner

Two Centuries of Declining Judicial Agreement

In his latest Empirical SCOTUS column, Adam Feldman explored the justices’ agreement rates from 1791 to 2025 to “trace how justices form coalitions and when these drift apart.” Among other takeaways, Feldman noted that swing justices may be a thing of the past. “[Justice Anthony] Kennedy’s 16 terms as its most central figure is not met by anyone on the current court. Meanwhile, [Chief Justice John] Roberts’ brief time in this role has given way to a conservative alignment (with some outliers),” Feldman wrote.

The Concurrence that Was Really a Dissent

In her latest In Dissent column, Anastasia Boden reflected on Justice Antonin Scalia’s concurrence in NLRB v. Noel Canning, a case on whether the president can make recess appointments during short, three-day recesses in the Senate. The court’s ruling against the Obama administration was technically unanimous, but Scalia “set forth a very different theory of the presidency than the majority,” Boden wrote. “His concurrence, which reads like a dissent, demonstrates that almost everything at the Supreme Court is more nuanced than it seems.”