[Newsletter ad — view on SCOTUSblog]
Today, SCOTUSblog and Johns Hopkins University are coming together to preview the cases and questions that will shape the 2026-27 Supreme Court term. This event, which is presented by Cooley, will include a keynote address featuring Sen. Dick Durbin (D-IL) and Rep. Darrell Issa (R-CA); a live taping of the Advisory Opinions podcast; a fireside chat with Cooley partner and former U.S. Solicitor General Elizabeth Prelogar; and a panel with Brett Gerry (chief legal officer of Boeing), Brian Callanan (general counsel of TD Bank U.S.), and Jeff Taylor (general counsel of ExxonMobil). Tomorrow’s newsletter will include a brief overview of the event.
At the Court
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. On Tuesday, the groups challenging this plan filed a response to the administration’s request. For more on the dispute, see the On Site section below.
Morning Reads
Trump calls Supreme Court mail ballot ruling ‘big loss for Republicans’
Dan Mangan, CNBC
In a Tuesday morning post on Truth Social, President Donald Trump “blasted the Supreme Court for blocking a new controversial U.S. Postal Service rule on mail-in ballots from being used for the upcoming midterm elections,” according to CNBC. “It is a big loss for Republicans, and America itself, and makes cheating by the Radical Left ‘Dumocrats,’ on Mail-In Ballots, a much easier thing to do,” the president wrote. In the post, “Trump also harshly criticized his three Supreme Court appointees,” Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, “for apparently joining with all three liberal justices, plus Chief Justice John Roberts,” in Monday’s decision. “These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves,” he wrote.
Todd Blanche: Supreme Court setback on mail-in ballots won’t stop election integrity efforts
Tom Howell Jr., The Washington Times
During a Tuesday press briefing, Attorney General Todd Blanche asserted that “efforts to tighten rules around mail-in voting will continue beyond November despite the Supreme Court’s refusal to step in and revive President Trump’s plan to police mail-in ballots for the midterm elections,” according to The Washington Times. “We’re not going to stop the work that we’re doing, but we are of course going to follow the orders of the court,” Blanche said, adding that the Supreme Court’s decision “doesn’t affect ongoing criminal investigations into illegal voting.” Blanche also addressed Trump’s complaints about the Supreme Court on social media. “He is very frustrated,” Blanche told reporters. “He has every right, and indeed he should, communicate his concerns with the Supreme Court whenever he has them. This isn’t the first time he’s done it, and it won’t be the last.”
John Eastman asks US Supreme Court to undo disbarment over Trump election efforts
David Thomas, Reuters (paywalled)
Conservative attorney John Eastman has filed a petition for review with the Supreme Court, asking the justices “to reinstate his California law license after he was disbarred in the state earlier this year over his efforts to overturn Republican President Donald Trump’s 2020 election loss to Democrat Joe Biden,” according to Reuters. In the petition, Eastman contends “his legal advocacy was protected by the First Amendment of the U.S. Constitution, and that he was disciplined in a ‘politicized’ bar proceeding. He said other attorneys who took part in legal proceedings that sought to overturn the results of the 2020 presidential election were not disciplined.” Reuters noted that “[i]t is rare for the U.S. Supreme Court to weigh in on attorney disciplinary cases, which are normally decided by the top court of respective states.”
EPA rollback may worsen Trump’s Supreme Court climate headache
Lesley Clark, Politico
On Oct. 5, Trump “administration attorneys will appear alongside oil companies at the Supreme Court to argue that the justices should put the kibosh on dozens of state court lawsuits that – if successful – would force companies like ExxonMobil, Chevron and Suncor Energy to pay billions of dollars for contributing to climate change,” according to Politico. In its filings in that case, Suncor Energy v. County Commissioners of Boulder County, the Justice Department has contended “that EPA – not the states and cities behind the climate lawsuits against oil producers – is the primary regulator of greenhouse gases.” However, legal experts who spoke with Politico believe that claim is in tension with “[t]he Trump administration’s move on Monday to undo EPA climate rules” for power plants and its broader effort to reduce EPA’s involvement in climate issues. For its part, the “DOJ has said it does not see any conflict with its decision to rescind climate rules and its Supreme Court argument that state-level climate lawsuits interfere with the federal government’s job.”
In Fits and Starts, the Supreme Court Stands Up to Trump
Adam Liptak, The New York Times (paywalled)
In an analysis for The New York Times, Adam Liptak explored the Supreme Court’s evolving relationship with the Trump administration, noting that, for much of President Donald Trump’s second term, “the court seemed to have settled on a strategy of deference, ducking and delay.” “But sometimes,” Liptak continued, “the court put its foot down,” including on Monday in the mail-in voting dispute. “The majority opinion about mail-in balloting on Monday was just three sentences long, but it went further than it might have. Instead of ruling merely that the administration’s plan had been rolled out too close to the November election, a conclusion that might have suggested Mr. Trump might still win in the end, the majority signaled that the government was likely to lose on the merits,” Liptak wrote.
On Site
Court News
Groups urge justices to leave in place ruling barring Trump administration’s use of voter database
Lawyers for the League of Women Voters and the Electronic Privacy Information Center on Tuesday urged the Supreme Court to leave in place a ruling by a federal judge in Washington, D.C., that bars the federal government from using a centralized database to verify voters’ citizenship. Nikhel Sus, the lawyer representing the two groups, told the justices that, in violation of federal law, “the government has recklessly created an error-laden master citizenship database that endangers millions of Americans’ privacy and voting rights.”
Contributor Corner
Criminal cases coming in the new term – and why the court could and should do more
In his SCOTUSCrim column, Rory Little offered a brief overview of cases on criminal law and related issues that will be argued during the 2026-27 term, including “blockbuster” cases on bans on AR-15s and similar semi-automatic rifles, the size of juries, and what constitutes an excessive fine.
SCOTUS Outside Opinions
Break the Supreme Court law clerk cartel
For his series on what the Supreme Court can do better, Josh Blackman wrote about why he believes the court should shake up its current approach to hiring clerks by, among other things, preventing candidates from applying while they’re still in law school and requiring “clerks, following their clerkship, to work for two years in government service.”
Podcasts
Advisory Opinions
Barely Averting a Constitutional Crisis
Sarah Isgur and David French debate David’s latest column for The New York Times on the dispute over congressional redistricting in Missouri. Then, the two review two law articles: Andy Smarick of the Manhattan Institute’s elegantly simple piece on unenumerated rights, and University of Virginia law professor Caleb Nelson’s amazing yet horrifying publication on the unitary executive.
Ask Amy
Q: What are some of the reasons certain filings with the Supreme Court are sealed? How is this determined?
A: As the Reporters Committee for the Freedom of the Press noted in a blog post, filings can be sealed for a variety of reasons – for example, to protect people who are in the witness protection program, to redact the names of government informants or young people who are convicted of crimes, or for national security reasons – for example, in cases involving Guantanamo Bay detainees.
At the Supreme Court, the sealing of filings is governed by the court’s rules. A litigant who wants to file a document under seal must file a motion seeking permission to do so. That motion, the court’s rules provide, must “address whether the material in question was sealed in a lower court.” If it was, then the motion should indicate whether the material is still sealed and why it should remain sealed to maintain confidentiality. If the material was not sealed, then the litigant seeking to file it under seal should explain why the Supreme Court should keep it under wraps. Regarding the process itself: “Neither the motion to file a document under seal nor any document containing sealed material should be submitted through the Court’s electronic filing system,” the court’s rules specify.
The Supreme Court heard oral argument in January 2023 in a case in which the petition for review was filed under seal: In re Grand Jury, a challenge by an unnamed law firm that received a grand jury subpoena for its communications with a client. The challenger also filed a public version of its petition that (among other things) has the name of the firm redacted, as well as a supplemental sealed volume of the appendix to the petition for review.
A slightly different variation on sealed filings can be found in Social Security and immigration cases, in which federal rules limit online access to the filings in the case – including at the Supreme Court.
SCOTUS Quote
MS. MILLETT: “… And what the State Department looks for is – what it has said is that it has – it has a pattern of decisionmaking, factors it lays out in its brief, that I think it finds – it says it finds – influential in the process.
But in – forgive me for –”
CHIEF JUSTICE ROBERTS: “Finish your sentence.”
MS. MILLETT: “But in any given case, the role of the Executive Branch is going to have more or less deference based on whether it is speaking something within its traditional expertise: Are you a head of state?
Were you a diplomat?
But when it comes to war – and I – I'm not saying it would, but if it were to come to war with the very elements of the Torture Victim Protection Act and say that torture by an individual can be immunized just because it was done under color of law, then I think the court has a very difficult concern that was flagged in Altmann to resolve, and I think we might draw a different – we would definitely come to a different answer than the Executive Branch in that situation.”
CHIEF JUSTICE ROBERTS: “You made that a long sentence.”
— Samantar v. Yousuf (2010)
Recent Comments