SCOTUStoday for Thursday, November 13

The Supreme Court wrapped up its arguments for the November sitting yesterday and announced what cases it will hear in January. Mark your calendars accordingly – we certainly have!

SCOTUS Quick Hits

• Tomorrow, the justices will take part in a private conference and discuss cases and petitions for review.
• On Monday, the court is expected to release an order list at 9:30 a.m. EST providing, among other things, additional cases that it has decided to hear this term.
• Also on Monday, the Trump administration and lawyers for Illinois and Chicago will file what are expected to be their final briefs on President Donald Trump’s authority to deploy the National Guard to Illinois.

Morning Reads

• Tariffs are on trial, but US trade talks are moving full steam ahead (Ari Hawkins, Daniel Desrochers, and Phelim Kine, Politico)(Paywall) — The Supreme Court soon may strike down a “large chunk” of President Donald Trump’s signature tariffs, but that’s not stopping the country’s trading partners from coming to the negotiating table, according to Politico. “According to more than half a dozen foreign diplomats and people close to the negotiations, some of whom were granted anonymity to discuss strategy, other governments continue to press for deals to avoid President Donald Trump’s tariffs on sectors like autos and steel and others (as well as threatened ones on pharmaceuticals and semiconductors), which are not affected by the court challenge. And they are betting the administration will be able to use other laws to reimpose at least some of the duties that could be struck down.” But some of these sources told Politico that they expect a ruling against the tariffs to “weaken” the president’s “bargaining power.”
• Purdue Pharma urges bankruptcy judge to approve $7.4 billion opioid settlement (Nate Raymond, Reuters) — Attorneys for Purdue Pharma appeared before a bankruptcy judge on Wednesday to urge the judge “to approve a restructuring plan that includes a $7.4 billion settlement resolving claims that the drugmaker’s sales of addictive pain medications fueled the U.S. opioid epidemic,” according to Reuters. “The plan significantly amends a prior bankruptcy settlement that Purdue was forced to rework after the U.S. Supreme Court in 2024 rejected it and forced the company to scale back legal protections for its owners, members of the wealthy Sackler family.” During the Wednesday hearing, attorneys said the new plan has been approved by “more than 99%” of Purdue’s creditors, with the key exception being “a small number of individuals pursuing claims against Purdue without legal counsel.”
• Berkeley Law Dean Urges Supreme Court to Be ‘Guardrail of Our Democracy’ (Ryan Quinn, Inside Higher Ed) — Erwin Chemerinsky, a SCOTUSblog contributor and dean of the University of California, Berkeley, School of Law, spoke at a conference this week about the Trump administration’s contentious relationship with colleges and universities and called on the Supreme Court to do more to rein in the president, including in the area of higher ed, according to Inside Higher Ed. “Ultimately, I believe the guardrail of our democracy has to be the courts and the Supreme Court,” Chemerinsky said. “If there is going to be a check on a president who has authoritarian impulses, it’s going to have to be from the restraints of the Constitution—and the only way we can enforce those is the courts.”
• The Supreme Court Just Took a Scary Voting Case That Has Trump Salivating. He Might Be Disappointed (Richard L. Hasen, Slate) — In a column for Slate, Richard L. Hasen explored what’s at stake in the Supreme Court’s new case on mail-in ballots. If the Supreme Court upholds the decision barring Mississippi from counting ballots that arrive after Election Day, “29 states and the District of Columbia would have to change their laws to require receipt of virtually all ballots by Election Day, aside from a small class of ballots including those from military and overseas voters,” he contended. Hasen expressed his hope that the court will “let Mississippi make the policy choice to accept ballots postmarked by Election Day” and said such a ruling would comply with “text, law, and practice.”
• Federal Appellate Judges Can Petition the Supreme Court to Review a Question (Eugene Volokh, The Volokh Conspiracy, Reason) — In a post for Reason’s Volokh Conspiracy blog, Eugene Volokh highlighted a lesser-known way a case can make it to the Supreme Court: at the request of judges. “[I]t turns out that federal appellate judges (as few as a two-judge majority on a court of appeals panel) can themselves ask the Supreme Court to review a question, though technically the procedure is called a ‘certification’ rather than a petition,” he wrote. But, Volokh continued, “in practice the Court almost never agrees to hear such certified questions; the last time it did that was in 1981.”

A Closer Look: The First Step Act

The justices heard arguments yesterday in the cases of Fernandez v. United States and Rutherford v. United States, both of which center around what qualifies as “extraordinary and compelling reasons” for sentence reductions under the First Step Act’s compassionate-release provision.

The First Step Act was a bipartisan measure enacted in 2018 under President Donald Trump to reduce penalties for certain drug offenses, expand rehabilitation opportunities, and reform what were viewed as overly harsh sentencing practices. (Perhaps it gained the most publicity through Kim Kardashian, who publicly lobbied for its passage.) Among its specific reforms, the FSA amended 18 U.S.C. § 924(c) to curb “stacking,” where multiple firearm convictions in one proceeding triggered consecutive 25-year minimums – a practice that, according to the U.S. Sentencing Commission, disproportionately affected Black men. And with regard to compassionate release, the statute allows inmates to petition courts directly for reductions based on “extraordinary and compelling reasons,” rather than depending on the Bureau of Prisons to do so on an inmate’s behalf, as was previously required.

Yesterday’s cases were not the first time the FSA has come before the Supreme Court. In Terry v. United States, decided in 2021, the court held that individuals convicted of certain low-level crack-cocaine offenses did not qualify for sentencing reductions under the FSA. The following year, in Concepcion v. United States, the court ruled 5-4 that the FSA permits trial courts to consider intervening changes of law or fact in deciding whether to reduce a sentence. Two years ago, in Pulsifer v. United States, Justice Elena Kagan wrote for a 6-3 majority in a decision making it more difficult for some offenders to avoid mandatory minimums under the Act. And most recently, the court’s 5-4 decision in Hewitt v. United States held that the Act’s reduced penalties apply to defendants whose sentences have been vacated and who are resentenced after the FSA’s passage.

That is, admittedly, a whole lot of law. But given the expansive scope of the FSA, and its potential effect on so many defendants and inmates, the court will likely be parsing over the Act for many more years to come.

SCOTUS Quote

“No one learns more about a problem than the person at the bottom.”

— Former Justice Sandra Day O’Connor

On Site

From Amy Howe

Court Schedules Several Significant Cases for January

The Supreme Court will kick off 2026 with a series of arguments in blockbuster cases. In a calendar released on Wednesday afternoon, the justices announced that they will hear arguments in January in cases involving transgender athletes, the latest chapter in the court’s gun rights jurisprudence, and President Donald Trump’s bid to remove Lisa Cook, a member of the Federal Reserve’s Board of Governors. For more on the January sitting, read Amy’s analysis.

Relist Watch

Borderlines, Benchslaps, and Burdens of Proof

In his latest Relist Watch column, John Elwood highlighted four petitions that were relisted for the first time after the Nov. 7 conference, including Noem v. Al Otro Lado, in which the Trump administration asks whether a noncitizen who is stopped on the Mexican side of the border has “arrive[d] in the United States” for purposes of asylum eligibility and inspection. Elwood deemed that one “a likely grant.”

Contributor Corner

What James Madison Thought about AR-15s

In her latest A Second Opinion column, Haley Proctor reflected on the process of applying old law to new facts. She compared it to taking a “roundtrip journey” into the past. “The journey begins with a trip back in time to recover the original meaning of the constitutional provision that is at issue. That is interpretation. At some point, the judge turns around and brings what he has learned back to the dispute that is before him. That is application. Visualizing the dispute in this way helps us to appreciate the difference between the two activities: the judge’s orientation in time is different. When he interprets, he is looking to the past for an answer. When he applies, he is returning to the present and using what he has learned,” Proctor wrote.