[Newsletter ad — view on SCOTUSblog]
Today is Justice Ketanji Brown Jackson’s birthday. Born in 1970, Jackson has served on the Supreme Court since 2022.
At the Court
On Friday, the Supreme Court dismissed a case on whether certain noncitizens have a right to a bond hearing that had been scheduled for argument in October, after U.S. Solicitor General D. John Sauer notified the court that the case is now moot and the challenger agreed that it should be removed from the oral argument docket. For more on the dismissal, see the On Site section.
On Sept. 6, the Trump administration urged the Supreme Court to allow it to fully implement a new U.S. Postal Service rule on mail-in ballots. The dispute is now fully briefed, and the court’s decision could come at any time.
The Trump administration has asked the Supreme Court to clear the way for it to use the Department of Homeland Security’s Systematic Alien Verification for Entitlements database to identify noncitizens on state voter rolls. A response to the administration’s request is due tomorrow by 4 p.m. EDT.
Morning Reads
Former crypto billionaire Sam Bankman-Fried appeals conviction to Supreme Court
John Fritze, CNN
On Thursday, “Sam Bankman-Fried, the former crypto mogul who was convicted of defrauding investors by secretly diverting billions of dollars of their money,” filed a petition for review at the Supreme Court, asking the justices “for a new trial and to throw out a court order requiring him to pay $11 billion as part of his sentence,” according to CNN. The petition, which is not yet publicly available on the Supreme Court’s website, “raises a technical question about evidence that was submitted at his trial, and whether Bankman-Fried should have been permitted to demonstrate that his investments were ultimately sound and would have covered any losses” experienced by his crypto exchange’s customers. Bankman-Fried “also argues that the $11 billion forfeiture violates the 8th Amendment’s prohibition on excessive fines.”
Robinhood Asks High Court to Review Sports Predictions Issue
Gillian R. Brassil, Bloomberg Law
On Sept. 2, New Jersey asked the Supreme Court to address the regulation of prediction markets like Kalshi amid a nationwide battle for control between states and the federal government. Last week, Robinhood Markets Inc.’s derivatives subsidiary filed its own petition on the issue, urging the court to review a ruling “from the US Court of Appeals for the Ninth Circuit last month which favored state regulators,” according to Bloomberg Law. The 9th Circuit ruling conflicts with the U.S. Court of Appeals for the 3rd Circuit’s ruling in the New Jersey case. The two courts “fractured on whether the offerings [from prediction markets] are sports bets, which would be subject to state regulation, or hedging tools called ‘swaps’ that are under the purview of the CFTC, a small Wall Street regulator that’s aggressively asserted it has sole oversight.” Bloomberg Law noted that “[o]ther appellate courts are expected to weigh in on the debate shortly.”
Kavanaugh recalls 9/11 chaos, defends Bush's war on terror
Kelsey Reichmann, Courthouse News Service
On Friday, Justice Brett Kavanaugh spoke on a panel at the University of Notre Dame about 9/11, sharing his memories from that day and his thoughts on how the Bush administration in particular and the country in general responded. Kavanaugh, who was a White House lawyer in 2001, “recounted being inside the White House on the morning of the tragedy and gathering in the West Wing after the first plane struck the North Tower. He said staff members briefly took shelter in the basement after the second plane hit,” according to Courthouse News Service. “I don’t forget much from that day,” he said. “Seared in my memory is the Secret Service agent saying, ‘Run, sprint, ladies, take off your heels and sprint.’ And we were all kind of sprinting out the gate toward Lafayette Park.” Kavanaugh urged students in the audience to focus on how the country came together after the attacks. “One of the things that comes out of Sept. 11 is this grief, anger and resolution, but also unity,” he said. Kavanaugh also “defended President George W. Bush’s decision to invade Afghanistan and launch the Iraq War.”
Missouri voters sue Denny Hoskins, seek $80 million over redistricting referendum
Joey Schneider, Fox 2
On Thursday, the Supreme Court granted a request to prevent Missouri from using a new congressional map that favors Republicans in November’s elections, essentially ending the state’s complicated redistricting battle, at least for now. Then, on Friday, five Missouri voters sued Secretary of State Denny Hoskins over his actions during the dispute, “seeking an estimated $80 million in damages for voters over his handling of a referendum challenging the state’s 2025 congressional redistricting map,” according to Fox 2 in St. Louis. The voters “accus[e] him of violating his legal duties by improperly rejecting the referendum petition and previously directing authorities to use an invalid congressional map.” They’re asking for “around $500 each for roughly 162,000 voters who signed the referendum petition, had their signatures verified by local election authorities and are Missouri citizens.”
Alaska Legislature will support state’s bootlegging penalties in front of U.S. Supreme Court
James Brooks, Alaska Beacon
On Thursday, the Alaska Legislature’s “joint House-Senate Legislative Council voted to hire an outside attorney to draft a friend-of-the-court letter – formally known as an amicus brief – in support of the state and against Ken Jouppi, a former Bush pilot whose plane was seized after a bootlegging conviction,” according to the Alaska Beacon. In July, the Supreme Court announced that it would hear Jouppi’s case and consider whether the seizure of his plane “represents an illegal punishment because it is out of proportion to the crime he committed.” “Having the Legislature provide its input could help the Supreme Court understand Alaska’s historic concerns over alcohol and the role that Bush planes have in serving rural Alaska.”
On Site
Court News
Supreme Court dismisses immigration case that was scheduled for argument in October
On Friday, the court dismissed Genalo v. Black, which addressed at what point, if any, certain noncitizens have a right to a bond hearing during a lengthy detention, and what the government must show to justify continued detention if such a hearing is indeed required. In a letter to Scott Harris, the clerk of the court, U.S. Solicitor General D. John Sauer said the Justice Department aims to bring the issue back to the court soon in a new petition for review.
From the SCOTUSblog Team
9/11 and the Supreme Court
Friday marked the 25th anniversary of the Sept. 11, 2001, terrorist attacks. At the Supreme Court, the justices will soon consider whether to again wade into the legal fallout from that terrible event when they address three petitions for review on 9/11-related issues.
From the SCOTUSblog Team
Germany’s Federal Constitutional Court
For SCOTUSblog’s series on different supreme courts around the world, Zach spoke with German legal scholars Susanne Baer and Christoph Möllers about Germany’s Federal Constitutional Court – the high court that can apparently “do no wrong.”
A Closer Look
Auto-citations by the Justices
Justice Amy Coney Barrett’s concurrence this past term in Hunter v. United States, a case about whether federal criminal defendants’ appellate waivers could be enforced if a miscarriage of justice would result, drew commentary from some legal circles not only for its substance (which was rather technical: Barrett wrote that the court’s ruling should be based on “longstanding waiver principles” rather than “narrow, discretionary rules” created from the court’s “inherent, supervisory authority over inferior federal courts”) but for its rare self-citations (a.k.a. “auto-citations”) from Barrett’s days as a law professor.
“Like Justice Thomas, I am skeptical that the Supreme Court possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006),” Barrett noted in her two-page concurrence. “At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883–884 (2008).”
As Josh Blackman wrote: “I cannot recall any Justice so clearly stating that her judicial opinion was equivalent with her scholarly opinion–that was until I read Justice Barrett’s concurrence in Hunter v. United States. Barrett cites two of her own law review articles as support for her judicial opinion.” Adam Liptak likewise noted (referencing Blackman’s post) that Barrett “cited two of her own law review articles, from 2006 and 2008, to explain why she had come to conclusions about the relationship between the Supreme Court and lower courts.”
But Barrett is not the only justice on the Roberts court to have done so – as Liptak flagged, a 2021 law review article on the topic by Joel Heller identified past auto-citations by Justices Elena Kagan, Brett Kavanaugh, and Clarence Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, and Antonin Scalia also auto-cited their own work. All auto-citations appeared in concurrences or dissents – potentially because “[in a majority opinion] the justice is speaking more for herself or himself than for the Court,” Heller noted.
For example, in Seila Law LLC v. CFPB, which held that restrictions on the removal of the director of the Consumer Financial Protection Bureau violated the separation of powers, Kagan filed an opinion concurring in part and dissenting in part. In this, she cited her 2001 Harvard Law Review article twice, first in a footnote reading “In the academic literature, compare, e. g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies) …” followed by an in-text mention: “The President’s engagement, some people say, can disrupt bureaucratic stagnation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331-2346 (2001).”
Other justices cited to their own circuit opinions. Kavanaugh, for example, did so three times in 2020, per Blackman. And this is nothing new: Also per Blackman, Justice John Paul Stevens had 14 auto-citations between 1980 and 1995 to his U.S. Court of Appeals for the 7th Circuit opinions, while Justice Anthony Kennedy in 2011 cited to one of his U.S. Court of Appeals for the 9th Circuit opinions.
While the prospect of an auto-citation is itself enough to interest SCOTUS nerds, also of note are the potential motivations of a justice citing themselves or a colleague. Some proposed reasons: “Sometimes [the auto-citations] appear in areas where the authoring justice has particular expertise, while other times they seem to signal interest in certain arguments or express a personal judicial philosophy. … It is also a hint to arguments [the justice] would find compelling—because [he or she] made them” in the past. Another reason could be plain old consistency; as Liptak wrote in 2022 in a column about citing one’s own precedent, “Supreme Court justices, like most people, like to appear to be consistent. No one wants to be thought to be a flip-flopper, an opportunist or a hypocrite.”
SCOTUS Quote
MR. MARTINEZ: “… I think that the way to understand the term ‘tangible’ is the way in which Congress and – and the rules always use the term ‘tangible’ in connection with things or objects, which is as a way to refer to all types of – objects, all types of evidence. …”
JUSTICE SCALIA: “Is there such a thing as an intangible object? I'm trying to imagine one.”
MR. MARTINEZ: “I – I think the – you could say that the object of the game of Monopoly is to win all the money, but that's not really what Congress was looking at here.”
— Yates v. United States (2014)
Recent Comments