SCOTUStoday for Wednesday, November 12

Justice William O. Douglas announced his retirement on this day in 1975, nearly 11 months after suffering a stroke and more than 36 years after joining the Supreme Court. He remains the longest serving justice in Supreme Court history.

SCOTUS Quick Hits

• On Friday, the Trump administration urged the court to pause a district court ruling requiring the administration to fully fund the Supplemental Nutrition Assistance Program in November. That same day, Justice Ketanji Brown Jackson issued an administrative stay putting the ruling on hold. On Monday, after being prompted by Jackson to clarify whether it was still seeking a stay, the Trump administration reiterated its call for the district court ruling to be put on hold. In their response brief, filed Tuesday morning, the groups advocating for the full SNAP payments asked the court to deny the administration’s request. Later on Tuesday, the Supreme Court extended the administrative stay until 11:59 p.m. EST on Thursday. Jackson indicated that she would not have extended the administrative stay, and that she would have turned down the government’s request. 
• The Supreme Court will hear argument today in two cases: Fernandez v. United States and Rutherford v. United States (the latter of which has been consolidated with Carter v. United States). In the cases, the justices are considering the breadth of the compassionate-release statute, which governs a type of sentence reduction for federal prisoners.
• On Friday, the justices will take part in a private conference and discuss cases and petitions for review.

Morning Reads

• Trump Asks Supreme Court to Overturn Verdict in E. Jean Carroll Case (Abbie VanSickle, The New York Times)(Paywall) — On Monday, President Donald Trump asked the Supreme Court to hear his appeal of “a $5 million civil judgment that he had sexually abused and defamed the writer E. Jean Carroll,” according to The New York Times. “In the petition, lawyers for Mr. Trump claimed that the assertions against him were ‘implausible’ and ‘unsubstantiated’ and argued that the trial court had erred in a ‘series of indefensible evidentiary rulings.'” Last year, a panel of judges for the U.S. Court of Appeals for the 2nd Circuit upheld the judgment, and in June, the 2nd Circuit rejected a request “that the full court review the case.”
• Trump claims tariff ‘unwind’ would cost $3 trillion (Ben Berkowitz, Axios) — In a Truth Social post, Trump contended that the “U.S. Supreme Court was given the wrong numbers” in the tariffs case and that “the U.S. would be on the hook for $3 trillion in refunds and lost investments if the administration loses,” according to Axios. “That would truly become an insurmountable National Security Event, and devastating to the future of our Country – Possibly non-sustainable!,” the president wrote.
• Justice Department asks U.S. Supreme Court to throw out PG Sittenfeld’s convictions (Kevin Grasha, Cincinnati Enquirer)(Paywall) — In May, Trump pardoned former Cincinnati City Council member P.G. Sittenfeld, who had been convicted in 2022 on federal bribery and attempted extortion charges. But the pardon didn’t stop Sittenfeld from coming to the Supreme Court in July and asking the justices to consider whether the government’s approach to bribery charges violates the First Amendment. In a Monday filing, the Trump administration asked the court “to give full effect” to Trump’s pardon by vacating “a ruling by a federal appeals court that upheld Sittenfeld’s convictions and send the case back to the federal judge in Cincinnati who oversaw the trial” for further consideration in light of the pardon, according to the Cincinnati Enquirer. However, the administration did not ask the Supreme Court to hear arguments in the case or “weigh in on the legal issues surrounding the convictions.”
• Redistricting ruling: Utah judge picks plaintiffs’ congressional map, blocks Legislature’s (Katie McKellar, Utah News Dispatch) — A redistricting battle in Utah entered a new phase on Monday when a judge rejected a congressional map proposed by the Utah Legislature after deeming it substantially biased in favor of Republicans, thereby violating “a 2018 voter-approved law establishing an independent redistricting process and neutral map-drawing criteria.” The district court approved a different map submitted by the groups that had challenged the Legislature’s work. “The judge’s selection gives Democratic candidates a good chance at one of Utah’s U.S. House seats in next year’s midterm elections, at a time when redistricting shuffles are playing out around the country and both major parties are pulling for an advantage,” according to Utah News Dispatch. Republican leaders in Utah have said they’re willing to fight the ruling all the way to the U.S. Supreme Court.
• Will SCOTUS Resolve the Circuit Split on a Law That Disarms People With Nonviolent Criminal Records? (Jacob Sullum, Reason) — In a column for Reason, Jacob Sullum highlighted cases on whether a federal law that “prohibits gun possession by anyone who has been convicted of a crime punishable by more than a year of incarceration” is unconstitutional as applied to nonviolent offenders. Over the past three years, seven federal appeals courts “have ruled that the provision is constitutional in all of its applications. Three, including the 5th and 7th circuits as well as the 3rd, have held that the ban may be unconstitutional in particular cases. The 6th Circuit has agreed with that general position while holding that people who challenge their disqualification [to own guns under the law] have the burden of showing they are ‘not dangerous.'” Several pending petitions urge the court to resolve the circuit split, Sullum wrote.

A Closer Look: Seriatim

If you participated in SCOTUSblog’s live blog for the tariffs argument last week, you may have noticed the term “seriatim,” which guest moderator David Lat used to refer to the concluding portion of each attorney’s time addressing the justices, during which Chief Justice John Roberts prompted his colleagues one-by-one, in order of seniority, to raise their final questions. As you’ve perhaps figured out by now, seriatim is a Latin word meaning “consecutively” or one after another.

Seriatim, or seriatim rounds, became a fixture of the Supreme Court’s oral arguments procedure during the early days of the COVID-19 pandemic, when the court had to conduct its business by telephone rather than in the courtroom. On the phone, it didn’t work for all the justices to be free to ask a question at any time, because they weren’t able to use body-language cues to avoid interruptions or overlapping speech. Thus, the court instituted the seriatim approach and gave each justice time to speak with attorneys without interruption.

When it was introduced in 2020, seriatim questioning was divisive, as Steven Mazie reported for SCOTUSblog. Some court watchers appreciated that it appeared to push famously quiet justices – most notably, Justice Clarence Thomas – to play a bigger role in oral arguments and led to a more equal distribution of questions between the two sides in a case. But others, including Lyle Denniston, criticized the format, arguing that doing away with free-wheeling questions undermined the purpose of argument sessions.

Perhaps in recognition of this mixed response, the court adopted a hybrid approach to oral arguments when it returned to the courtroom at the start of the 2021-22 term. After an attorney’s opening statement, any and all justices are free to jump in with a question (although Thomas customarily speaks first and, in general, the justice with more seniority wins out if multiple people speak at the same time). Then, near the end of the attorney’s time, Roberts starts the seriatim round, giving each justice another chance to weigh in. Justices are not required to participate if they have no lingering questions, and, in fact, there were no questions asked during what would have been the seriatim rounds in the cases argued on Tuesday, Nov. 4.

Long before the COVID-19 pandemic brought seriatim questioning to oral argument sessions, seriatim was used to describe a different aspect of the court’s work. For about the first decade of its existence, the Supreme Court would release seriatim opinions instead of opinions of the court, meaning that each justice would write separately and leave it up to lawyers to determine what the opinions held in common. Chief Justice John Marshall, who assumed the role in 1801, led the court away from this practice.

SCOTUS Quote

“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

— Justice Louis Brandeis in Olmstead v. United States

On Site

From Amy Howe

Trump Administration and Lawyers for Illinois and Chicago Battle Over National Guard Deployment

On Monday, the Trump administration and lawyers for the state of Illinois and the city of Chicago filed additional briefs on whether the phrase “regular forces” in the federal law on which President Donald Trump relied to call up the National Guard refers to the regular forces of the United States military or civilian law-enforcement officers. Read Amy’s analysis to learn more about each side’s key arguments.

SNAP Payments Dispute Continues

On Tuesday, a group of nonprofits and cities responded to the Trump administration’s request for the court to block an order from a federal judge in Rhode Island that would require the government to fully fund the Supplemental Nutrition Assistance Program for November despite the government shutdown. The challengers wrote that the court “should deny the government’s application and not allow any further delay in getting vital food assistance to people who need it now.” Later on Tuesday, the court extended the administrative stay keeping the order on hold until 11:59 EST on Thursday, as Amy noted in her analysis.

Federal Official Challenges Trump Administration’s Power to Fire Her

Lawyers for Shira Perlmutter, who served as the head of the U.S. Copyright Office until she was fired earlier this year, urged the Supreme Court on Monday afternoon to leave in place a ruling by a federal appeals court that temporarily reinstated her to her position. Accepting the Trump administration’s argument, they contended, would confer a “sweeping expansion of presidential authority (and derogation of congressional authority).” For more on the case, read Amy’s analysis.

Case Preview

Richard Cooke on Fernandez v. United States and Rutherford v. United States

The Supreme Court will hear oral arguments today in cases posing basic questions about the breadth of the compassionate-release statute, which governs a type of sentence reduction for federal prisoners. The statute allows a court to grant a sentence reduction when a defendant presents “extraordinary and compelling reasons” for doing so and satisfies criteria specified by the U.S. Sentencing Commission. Among other topics, the justices will debate the meaning of the words “extraordinary and compelling,” according to Richard Cooke, who is covering the cases for SCOTUSblog.

Argument Analysis

Court Dubious of ICE Contractor’s Right to Immediate Appeal

In his analysis of oral arguments in The Geo Group, Inc. v. Menocal, which took place on Monday, Ronald Mann highlighted the tough questions that the justices had for The Geo Group, a government contractor operating an ICE detention facility that’s facing a challenge from ICE detainees. GEO contends that it should be able to immediately appeal after being denied immunity by a district court, but the “dominant position of the justices was that whatever protection the contractor might have, it is simply a defense, not the kind of immunity from suit that would justify an immediate appeal,” Mann wrote.