This morning, Friday, Dec. 12, the justices are gathering for their final regularly scheduled private conference of the year to discuss cases and vote on petitions for review. The petitions set to be considered – or reconsidered – address several significant topics, including the scope of Second Amendment protections, a unique response to climate change, and whether the government can seize a $95,000 plane over a six-pack of beer.

Here is a brief overview of five notable issues that are in front of the court at this week’s conference.

Yesterday’s argument in FS Credit Opportunities Corp. v Saba Capital Master Fund showed a bench surprisingly receptive of private parties having the ability to sue investment companies under the Investment Company Act of 1940. Although the justices have been skeptical of implied rights of action in recent decades, most of them seemed to think that the statute went far enough to authorize the limited relief sought in the case before them, namely the right to invalidate a contract inconsistent with the statute.

A group of immigration judges on Wednesday afternoon urged the Supreme Court to leave in place a ruling by a federal appeals court that sent a dispute over a policy limiting their speaking engagements back to a federal trial court. The National Association of Immigration Judges told the justices that there was no need for them to step in because the U.S. Court of Appeals for the 4th Circuit had merely directed a federal district court in Alexandria, Virginia, “to conduct fact-finding that may inform its resolution” of the group’s challenge.

Although the dispute arose as a challenge to the speaking-engagement policy, it could have much broader implications for federal employees and the process by which they can contest firings, demotions, and other sanctions. The dispute began several years ago, when the NAIJ went to federal court to challenge what it describes as “a policy that categorically forbids employees of the Executive Office for Immigration Review (“EOIR”)” – which includes immigration judges – “from speaking publicly in their personal capacities about immigration and about the agency that employs them.”

U.S. District Judge Leonie Brinkema dismissed the case. She concluded that under the Civil Service Reform Act, the NAIJ was required to raise its claims through the administrative process instead.

The NAIJ appealed that ruling to the 4th Circuit, which sent the case back to the district court. It relied on recent actions by President Donald Trump – such as his firing of the Special Counsel, who would initially consider the group’s claims in the administrative process, and the chair of the Merit Systems Protection Board, where the Special Counsel could refer the claims, as well as the Trump administration’s argument that the protections from removal provided by the CSRA are unconstitutional. Taken together, the court of appeals wrote, those actions “call into question” whether the administrative scheme that Congress set up remains independent of the president and, as a result, whether Congress would want to continue to funnel claims by federal employees through that scheme. The court of appeals therefore instructed the district court to marshal the additional facts needed to assess “the continued vitality of the [CSRA’s] adjudicatory scheme.”

After the court of appeals declined to rehear the case or to block its decision from going into effect while the government appeals, the Trump administration went to the Supreme Court on Dec. 5, asking the justices to pause the 4th Circuit’s ruling. The court quickly granted the government’s request for a temporary stay – known as an administrative stay – that put the 4th Circuit’s order on hold to give the justices time to consider the government’s appeal.

In his Dec. 5 filing, U.S. Solicitor General D. John Sauer contended that the Supreme Court “has already held that the CSRA channels federal-employment claims to the MSPB.” He emphasized that “‘unelected judges’ do not get ‘to update the intent of unchanged congressional statutes if the court believes recent political events … alter the operation of a statute the way Congress intended.’” Sauer also warned that the decision by the court of appeals has already created “destabilizing uncertainty” that could “extend beyond federal personnel actions” to other “administrative-review schemes that preclude district-court jurisdiction,” such as the Federal Trade Commission.

In a 40-page filing submitted on Wednesday afternoon, the NAIJ told the justices that “the Fourth Circuit’s decision is correct and consistent with this Court’s precedent.” The Supreme Court’s cases have held, the NAIJ wrote, that the CSRA’s “elaborate” structure demonstrates that Congress intended to foreclose review of federal employees’ claims by the district courts. “But that carefully calibrated system of review has been called into question,” the group said. Without the independence from presidential control that Congress meant for, “the inference that Congress intended to withdraw district-court jurisdiction over federal employment claims may no longer be appropriate.” Otherwise, the group continued, the Office of Special Counsel and the “MSPB could effectively deny administrative and thus judicial review of claims, leaving employees with no recourse, even for substantial constitutional claims.”

There is also no need for the Supreme Court to intervene now, the NAIJ argued, because the court of appeals has not ruled on the questions of the CSRA’s current viability or whether the protections from removal provided by the CSRA are constitutional.

And “[e]ven if the CSRA were functioning normally,” the NAIJ alleged, its lawsuit could still go forward in federal court, including because its claims are not in any event the kind that must be channeled through the administrative process. The NAIJ, it stressed, is merely contesting a policy that prevents its members from speaking; it is not challenging sanctions on its members after they violate the policy. Such a “‘here-and-now’ injury … cannot be remedied, and would only be exacerbated, by administrative proceedings.”

The NAIJ downplayed any harm to the government that might occur if the fact-finding goes forward – another factor that courts consider in deciding whether to grant temporary relief. “The government might view that factfinding as inconvenient,” the NAIJ acknowledged, “but it would not inflict the irreparable harm necessary to justify the extraordinary remedy of a stay of the court of appeals’ mandate.”

By contrast, the NAIJ wrote, the harm to its members if their lawsuit cannot go forward would be irreparable. “This suit challenges a sweeping prior restraint that forbids the nation’s immigration judges from talking publicly in their personal capacities about anything related to immigration or to the agency that employs them,” the group contended. “That prior restraint is patently unconstitutional, and yet it continues to silence hundreds of immigration judges on topics of urgent public interest.”

The Trump administration will have the opportunity to file a brief replying to the NAIJ’s arguments. Once that brief has been submitted, the Supreme Court could act on the government’s request at any time.

I am pleased to introduce SCOTUSblog readers to the Interim Docket Blog, where Will Baude, Dan Epps, I, and surely others, will comment on Supreme Court interim orders and related matters.

The Supreme Court on Wednesday wrestled with the case of an Alabama man who has been on that state’s death row for more than two decades. The question before the justices was how the lower courts should have addressed Joseph Smith’s claim that he is intellectually disabled and therefore cannot be executed when Smith has taken five separate IQ tests over a span of almost 40 years. After roughly two hours of oral argument, the justices were divided over whether, as Smith contended, the lower courts had properly concluded, based on a wide range of evidence, that he is intellectually disabled.