The Supreme Court may not have reached its 250th birthday yet (that’ll take another 13 or so years), but it has played a major role in shaping how the country understands the ideals contained in the Declaration of Independence.
Happy Independence Day weekend to all.
In yesterday’s newsletter, we featured the Stat Pack and this term by the numbers. Today, we’d like to point you to our new animated explainer about the court this term. The video is the third in the series of animated videos we worked on in partnership with Briefly, and it presents what we learned about the court in a fun, engaging way.
Plus, do you know an exceptional lawyer looking for something different? We're hiring to help build a new editorial product serving appellate lawyers, corporate counsel, and commercial litigators. If you have a federal clerkship and significant appellate or commercial litigation experience, send a brief note explaining why you're interested, along with your resume, to scotusblog@thedispatch.com.
At the Court
The Supreme Court Building will be closed today in observance of the Independence Day holiday.
Morning Reads
Supreme Court declines to halt $800-a-day fine for ex-Fox News reporter refusing to divulge sources
Lindsay Whitehurst and Eric Tucker, Associated Press
On Thursday, the Supreme Court “declined to intervene after a judge ordered an $800-a-day fine for a former Fox News reporter if she refuses to reveal her confidential source for stories about a Chinese American scientist who was investigated by the FBI but never charged,” according to the Associated Press. “The high court rebuffed an emergency appeal from Catherine Herridge. The veteran investigative reporter has been held in civil contempt as part of a lawsuit that scientist Yanping Chen filed against the government over the leak.” The contempt order and fine came after Herridge was ordered by a U.S. district judge “to answer questions about her source or sources in a deposition with Chen’s lawyers,” and Herridge “declined to answer questions about her sources” during that deposition. Justice Brett Kavanaugh indicated that he “supported granting the application for a stay.”
Can Trump Still Fire Lisa Cook After Her Supreme Court Win?
Erik Larson, Bloomberg (paywalled)
On Monday, the Supreme Court in Trump v. Cook held that President Donald Trump cannot fire Fed Governor Lisa Cook while her challenge to her removal moves forward. But can Trump continue trying to fire her? “The short answer is yes,” according to Bloomberg. Chief Justice John “Roberts, in his opinion, envisioned that the case could be replaced by a new fight if Trump started a fresh process to fire Cook. He said the justices were ruling ‘on narrow grounds’” – namely, that Trump did not give “Cook notice of the [mortgage fraud] claims against her and a chance to be heard before trying to remove her.” For now, the court’s “decision shifts the focus of the case back to the lower courts in Washington. The federal appeals court could continue proceedings on Trump’s appeal of the injunction against Cook’s dismissal. The case could also return to the federal district court, where a likely next step would be for the judge to set a hearing.”
Activists to rally about 14th Amendment at Supreme Court
Sarah D. Wire, USA Today
On July 9, the 14th Amendment will celebrate its 158th birthday, and “several thousand” people from across the country plan to mark the occasion with a demonstration outside the Supreme Court. The event will celebrate the amendment “and protest what they call attempts by the Trump administration to undermine ‘the backbone for every civil rights victory in American history,’” according to USA Today. “The protest, which organizers have named the ‘Let’s Get Free’ march, will go forward regardless of the Supreme Court’s ruling June 30 upholding birthright citizenship, which is guaranteed under the 14th Amendment.” “Organizers say recent executive orders and Supreme Court decisions, such as the 2022 Dobbs decision that ended Roe v. Wade’s abortion rights protections and the Callais decision reducing the use of majority Black districts, are examples of how the federal government has chipped away at the promises of the 14th Amendment in recent years.”
Supreme Court asked to hear Brackenridge Park sacred site dispute with Lipan Native American Church
Kory Cook, Texas Public Radio
In a new petition for review, members of the Lipan Native American Church are asking the Supreme Court to take up their religious freedom lawsuit over “an area near the San Antonio River” that they believe “has been a place of worship for centuries,” according to Texas Public Radio. “Church leaders argue the city’s plans to remove heritage trees and use bird-deterrent measures that would drive away nesting cormorants would permanently alter the site’s ‘spiritual ecology’ and make it impossible to practice their religion there.” They urge the justices “to review a decision by the U.S. Court of Appeals for the Fifth Circuit, which upheld a lower court ruling allowing the City of San Antonio to proceed with” its redevelopment plan. “Attorneys for the church argue the city could complete the project using less destructive alternatives.”
In Tumultuous Term, Chief Justice Roberts Took Charge of Unruly Supreme Court
Adam Liptak, The New York Times (paywalled)
In the latest edition of his newsletter for The New York Times, Adam Liptak analyzed Chief Justice John Roberts’ role in this term’s highest-profile cases, describing the term as “a triumph” for the chief, “who was in all but complete control of a court that had not long ago threatened to slip from his grasp.” Roberts “was in the majority ... in 96 percent of argued cases,” which “allowed him to keep and mold the three biggest opinions of the term,” on birthright citizenship, tariffs, and the president’s authority over independent federal agencies. “The chief had his most challenging term since he joined the court more than 20 years ago,” said Richard Lazarus, a law professor at Harvard and Roberts’ friend, to Liptak.
4 Takeaways From The Birthright Citizenship Decision
David Lat, Original Jurisdiction
In a post for his Substack, David Lat highlighted what he believes are the key takeaways from the court’s birthright citizenship ruling, including that it may enflame, rather than quiet, debates over birthright citizenship. President Donald Trump has already called on Congress to take action, prompting “[m]ultiple allies of Trump and supporters of his order” to explain “that amending the Constitution would be required to end birthright citizenship in its current form.” An effort to pass such an amendment is unlikely to be successful, Lat wrote, highlighting public support for birthright citizenship, which is why we may see Republican lawmakers seek to confirm justices in the future who appear supportive of overturning Barbara.
On Site
SCOTUS Videos
What we learned about the court this term: an animated explainer
There are a whole lot of strongly held beliefs about how the court votes. Many of these involve the court’s perceived ideological divide, pitting six Republican-appointed justices against three Democratic-appointed ones. So, as the narrative goes, you get a lot of 6-3 decisions. But how true is that, really? We explore that question and more in our latest animated explainer, done in partnership with Briefly.
Contributor Corner
After Slaughter and Cook: future Fed fights, and maybe some midnight firings
In his Major Questions column, Adam White reflected on Trump v. Slaughter and Trump v. Cook, exploring the “issues that could arise in these cases’ wake,” including new disputes over appointments to multi-member federal agencies, quorum requirements for these agencies, and midnight firings just before a president leaves office.
Contributor Corner
An immigration law error in the court’s asylum decision threatens immigration courts
In his Immigration Matters column, César Cuauhtémoc García Hernández revisited Mullin v. Al Otro Lado, in which the court held that asylum seekers are not eligible to apply for asylum until they physically cross the border into the U.S. He contends that “the majority opinion reveals that the justices don’t understand the border-crossing process that Congress created.”
Podcasts
Amarica's Constitution
Lincoln's Promise Kept
The court went big in Trump v. Barbara and decided on the basis of the Constitution, not merely the congressional statutes, that Abraham Lincoln’s wish for the nation, birthright citizenship, will live on – and will have its best chance to endure. Akhil Amar and Andy Lipka look deeply into the opinion to find the great themes it sounds.
Divided Argument
Weird Islands
Dan Epps and Will Baude dig into the birthright citizenship case. They read the majority opinion as the rare easy case and spend more time on the four dissents, trying to figure out exactly where each dissenter lands.
A Closer Look
Justice William Cushing
A quick note for those wondering about the order of our weekly justice bios: We initially planned to cover every chief justice, along with many of the more recognizable associate justices, but, based on readers’ suggestions, have concluded that every justice deserves a closer look (after all, there have only been 116 of them!). So we’re doubling back and starting with the first court. Indeed, with the country marking its 250th birthday on Saturday, there may be no better place to start than with a man who helped ratify the Constitution and served as one of the court’s six inaugural members.
Justice William Cushing was almost chief justice. President George Washington nominated him for the court’s center chair in 1796, and the Senate confirmed him unanimously. But after about a week, Cushing withdrew his acceptance, citing his declining health, and resumed his seat as an associate justice. Although the long-accepted story is that he simply declined the role, one study from the mid-2000s contends the court’s own minutes show Cushing actually served as chief justice for a day or two before deciding to step down (and that he therefore belongs on the official roster between John Rutledge and Oliver Ellsworth).
Cushing was born in March 1732, in Scituate, Massachusetts, into a family where both his father and grandfather had served as superior court judges. He graduated from Harvard College in 1751, taught school for a year, and was admitted to practice law in 1755. Around 1760 he moved to the frontier of what is now Maine, becoming the first probate judge of Lincoln County at 28 and, for a time, the only trained lawyer in the territory.
In 1772 he succeeded his father on the Massachusetts Superior Court of Judicature. By 1777, Cushing had become the state’s chief justice, a position he held for 12 years. He then helped frame the Massachusetts Constitution and, in 1788, helped ratify the U.S. Constitution as his state convention’s vice president, running most of its sessions when John Hancock fell ill.
Cushing’s most significant work on the state bench came in the 1783 prosecution of Nathaniel Jennison, the final case in a trio of disputes over Quock Walker, an enslaved man who sued Jennison after being tracked down and beaten. Cushing declared slavery incompatible with the new state constitution, reasoning that “there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract.” The ruling ended slavery as a legal practice in Massachusetts. During Shays’ Rebellion three years later, Cushing helped maintain order, keeping the courts open at personal risk and was later chosen to sentence the rioters.
Washington nominated Cushing to the Supreme Court in September 1789, the Senate confirmed him two days later, and he took his seat as one of the original six justices in February 1790. Over two decades he delivered only 19 opinions, and a good number of them were quite brief – his shortest opinion ran only two sentences, and he was known for his withdrawn manner. He agreed with his colleagues in every case. Perhaps Cushing’s most notable votes came in 1793’s Chisholm v. Georgia, where the court allowed a citizen of one state to sue other states in federal court (although this was soon undone by the 11th Amendment, which prevented federal jurisdiction in cases “against one of the United States by Citizens of another State”).
In 1793, Cushing became the first justice to administer the presidential oath, swearing in Washington for his second term in Philadelphia (for his first term, state judge Robert Livingston swore him in). Like his colleagues, Cushing also rode circuit, making the twice-yearly treks across the country; he wrote to Washington of journeying through snow, and the burden only got worse as he grew older.
Cushing remained on the court until his death in September 1810, at the age of 78 while in his hometown of Scituate. His seat eventually went to Joseph Story, whom President James Madison nominated in November 1811. (Confirmed at 32, Story became the youngest justice in the court’s history.) Cushing was Washington’s longest-serving appointee and the only one of the original six to sit under both Chief Justices John Jay and John Marshall, making him the “only human bridge” between the court’s first decade and the Marshall era.
SCOTUS Quote
“The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey if it is to adhere to that justice and moderation without which no free government can exist.”
— Justice Harlan Fiske Stone in Minersville School District v. Gobitis (1940)
