The NBA Finals, Stanley Cup Final, and World Cup may be dominating sports news right now, but some of us still want to talk about baseball. And as reporter Matt Rice noted on X this week, Justices Potter Stewart and Harry Blackmun would have approved.
Plus, a reminder: If you’d like to attend our term-in-review event on July 8 at Johns Hopkins University Bloomberg Center, don’t forget to register your interest here. The event will feature a fireside chat with the ACLU’s Cecillia Wang, who argued the birthright citizenship case before the Supreme Court; a discussion of the historical framework of birthright citizenship from Johns Hopkins professor Martha S. Jones; and a live taping of the Advisory Opinions podcast.
At the Court
On Thursday, the court released its opinions in three cases: Keathley v. Buddy Ayers Construction, Inc., FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., and Abouammo v. United States.
- In Keathley, a unanimous opinion held that courts should look to the totality of the circumstances to determine whether an omission of a claim in the bankruptcy context was barred by the judicial estoppel doctrine. Justice Ketanji Brown Jackson delivered the opinion of the court; Justice Clarence Thomas wrote a concurring opinion, joined by Justice Neil Gorsuch; and Justice Sonia Sotomayor wrote a concurring opinion.
- In FS Credit Opportunities, the court, by a vote of 6-3, held that Section 47(b) of the Investment Company Act does not impliedly empower private parties to sue for rescission of contracts that allegedly violate the act. Justice Amy Coney Barrett wrote the majority opinion; Jackson wrote a dissenting opinion joined in full by Sotomayor and in part by Justice Elena Kagan; and Kagan wrote a dissenting opinion.
- In Abouammo, in a unanimous opinion written by Kagan, the court held that a defendant charged with knowingly falsifying a document with the intent to obstruct a federal investigation must be tried in the district where the falsification occurred, not where the investigation was located.
After announcing opinions, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from Thursday’s conference are expected on Monday at 9:30 a.m. EDT.
Thursday night, the court declined to pause or vacate a district court order barring Alabama from executing Jeffery Lee using nitrogen gas. For more on the case, see the On Site section below.
The court has indicated that it will next release opinions on Thursday, June 18, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.
Morning Reads
Supreme Court Justice Brett Kavanaugh takes on a starring role in Maine’s Senate race
Natasha Korecki and Sahil Kapur, NBC News
As Republican Sen. Susan Collins of Maine fights to keep her seat in the Senate, her Democratic opponent, Graham Platner, and his supporters are attempting to use Collins’ 2018 vote in favor of Justice Brett Kavanaugh’s confirmation against her, according to NBC News. They view Kavanaugh’s 2022 vote in favor of overturning Roe v. Wade “as fresh ammunition that they lacked six years ago when she was last up for re-election” and are also emphasizing that “if Republicans reclaim the Senate, there is a chance that Collins could again play a pivotal role in voting for one or two Supreme Court justices.” “She got elected promising to protect Roe versus Wade, only to turn around and put on a justice, put a justice on the Supreme Court who overturned it? She lied to us,” Platner said this week after winning the Maine Democratic Senate primary.
Industry group appeals ruling on age verification law to US Supreme Court
Cora Neas, KXAN
On Thursday, the Computer & Communications Industry Association announced that it has filed an emergency request for the Supreme Court “to block a Texas law requiring app stores to verify users’ ages,” according to KXAN, a news station in Austin. “The move comes a week after the U.S. 5th Circuit Court of Appeals overturned a district court’s temporary injunction blocking” the law, called Senate Bill 2420. Texas officials “and the bill’s authors have previously said the law was necessary to safeguard minors from inappropriate content,” but the association contends that it violates the First Amendment. “The First Amendment protects the rights of app stores and app developers to disseminate lawful speech to users who have an equal right to access it. Parents – not governments – should retain the ability to make decisions about their children’s use of technology,” said CCIA President and CEO Matt Schruers in a statement.
Solo dissents are uncommon. Justice Kagan just made her first.
Grant Christensen and Anne Mullins, The Washington Post (paywalled)
In a column for The Washington Post, Grant Christensen and Anne Mullins highlighted Justice Elena Kagan’s recent solo dissent in Havana Docks Corporation v. Royal Caribbean Cruises, which was her first solo dissent in her 16-year Supreme Court career, and reflected on the significance of such separate writings across the court’s history. They noted that “Kagan’s dissent leaves Justice Amy Coney Barrett as the only member of the current court who has yet to dissent alone. Justice Clarence Thomas, the current court’s most prolific solo dissenter, has written more than 50.”
The Term of the Summary Reversal
Steve Vladeck, One First (paywalled)
In a post for his Substack, Steve Vladeck explored the justices’ growing reliance on the summary reversal – that is, “rulings that conclusively resolve appeals via unsigned, ‘per curiam’ opinions of the Court at the certiorari stage, without plenary briefing or oral argument.” There have been eight such decisions so far this term; “as recently as the October 2023 Term, there were none.” Vladeck contends that, if this trend continues, it “will quietly reshape how the Court relates to the lower federal and state courts – and to the litigants whose cases get pulled into the Court’s gravitational field without the benefit of briefing, argument, or a signed opinion.”
On Site
Court News
Court denies Alabama's request to allow execution using nitrogen gas
Alabama asked the Supreme Court on Thursday morning to allow the execution of Jeffery Lee to proceed as scheduled on Thursday night after lower courts barred the state from using nitrogen hypoxia to execute Lee, calling that method “likely unconstitutional.” In a brief, unsigned order sent to reporters shortly after 9 p.m. EDT, the court turned down Alabama's request. Three justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – indicated that they would have granted the state's request.
Opinion Analysis
Court unanimously sides with defendant in criminal venue dispute over where a crime occurs
The Supreme Court on Thursday ruled in Abouammo v. United States that federal prosecutors can try a defendant only in the district where his crime was committed, not where its “contemplated effects” were felt. Specifically, in a unanimous decision by Justice Elena Kagan, the justices rejected a federal appeals court’s conclusion that the intent requirement in 18 U.S.C. § 1519 – which criminalizes falsifying documents in a federal investigation – allows the government to prosecute the defendant where such an investigation is located.
From the SCOTUSblog Team
Protecting the justices
Security around the Supreme Court and the justices has increased markedly in recent years, particularly in the wake of the 2022 leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, which would overturn the constitutional right to an abortion. This beefed-up security presence has led to a significant expansion of both the Supreme Court’s workforce and its budget.
A Closer Look
Justice David Brewer
Today, Justice David Brewer may not be particularly well known, but that wasn’t always the case. Among his other activities, Brewer made an (unsuccessful) trip to Colorado in search of gold, served on the Supreme Court alongside his uncle (the only instance to date of two relatives sitting on the bench simultaneously), and was – at the time – “unquestionably the Justice most familiar to the American public.”
Brewer was born in June 1837, in Smyrna, Asia Minor (the former Ottoman Empire, now Turkey) – one of only six justices in the court’s history to have been born outside of the United States. His father was a reverend and ran a missionary school in Smyrna, while his mother was the sister of one of Brewer’s eventual colleagues on the Supreme Court, Stephen J. Field. The family returned to the U.S. when Brewer was still relatively young and settled in Connecticut. He enrolled at Wesleyan College at 14, transferred to Yale after two years, and graduated in 1856. While at Yale, Brewer was “greatly influenced“ by Theodore Dwight Woolsey, Yale’s president and a political science scholar, who believed in individual “moral self-development“ and that this was one of the central goals of government.
After Yale, Brewer spent a year in New York City reading law at the office of his uncle, David Dudley Field, before receiving a degree from Albany Law School in 1858. Brewer then tried his luck in the Colorado goldfields, found none, and moved to Kansas in 1859 before serving in a number of judicial roles – circuit court commissioner, probate court judge, and state district court judge. In 1870 Brewer was elected to the Kansas Supreme Court, where he remained for 14 years before President Chester Arthur appointed him to the U.S. Court of Appeals for the 8th Circuit in 1884.
President Benjamin Harrison then nominated Brewer in December 1889 to fill the vacancy left by the death of Justice Stanley Matthews, and the Senate confirmed him 53-11 later that month. He was sworn in on Jan. 6, 1890, joining the court with his uncle, Stephen Field, who had been sitting since 1863.
On the court, Brewer authored 540 majority opinions, a total surpassed by only five justices at the time of his death in 1910. Simultaneously, he was the Fuller court’s leading dissenter, averaging 11.3 dissents per term – and in the process beat out even John Marshall Harlan (who averaged 11.1), the “Great Dissenter.” Brewer’s jurisprudence linked him, in the eyes of historians, to what is now known as the Lochner era — a period of Supreme Court history named after the 1905 case of Lochner v. New York, in which the court frequently struck down economic regulations on the grounds that they infringed on the individual right to the freedom of contract. Specifically, in Lochner, five justices (including Brewer) held that a New York law capping bakers’ working hours violated the 14th Amendment’s protections.
Perhaps Brewer’s best-known majority opinion came in the unanimous case of Muller v. Oregon, which upheld Oregon’s cap on women’s working hours; his reasoning rested partly on women’s physical differences from men, writing that “history discloses the fact that woman has always been dependent upon man.”
Notably, Brewer also dissented in two major Chinese exclusion cases. The first, Fong Yue Ting v. United States, challenged the Geary Act of 1892, which required Chinese residents to carry residency certificates or face deportation. Brewer dissented, joined by Chief Justice Melville Fuller and Field, on the grounds that, among other things, such persons were constitutionally entitled to due process and that the act deprived them of this. The second case, United States v. Ju Toy, upheld the denial of re-entry to a U.S. citizen of Chinese dissent who had traveled temporarily abroad. Brewer again dissented, arguing that barring a citizen – guilty of no crime – from returning home without a jury trial stripped him of his constitutional protections, and that Congress could not constitutionally deprive a citizen of the rights the Constitution guarantees.
As for Plessy v. Ferguson, which was decided while Brewer served on the court, he did not participate; his daughter died unexpectedly the day the case was argued and he left Washington to be with his family.
Off the bench, Brewer was an orator and writer, giving lectures to bar associations, church congregations, and all-Black colleges – and at one point took leave of his court position to serve as president of the Venezuela-British Guiana Border Commission. As such, his name appeared in newspapers more frequently than those of either Fuller or even Harlan (although after his death, his eulogists wrote that his “fame was largely the product of his love of public speaking and his willingness to go almost anywhere to address an audience.”) Brewer died in office in March 1910 of a heart attack, at the age of 72, after 20 years on the court. His body was brought back to Kansas, where he was buried, and he was succeeded by Justice Charles Evans Hughes.
Brewer’s reputation after his death faced some difficulties. Theodore Roosevelt privately dismissed him as “a menace to the welfare of the Nation” and (less charitably) a judge with “a sweetbread for a brain.” The two men had clashed openly during Brewer’s final years on the bench – Brewer publicly criticized Roosevelt’s imperialism and had openly called into question whether Roosevelt was suited to hold the presidency. Generations of historians, too, associated Brewer with the disfavored Lochner Era and moved on. That said, his voting record tells a somewhat different story: in 739 cases involving “challenges to the legitimacy of state regulation,” Brewer sided with the state nearly 80% of the time, and while on the Kansas Supreme Court, he had warned that the nation’s large corporations would soon be “wrestling for political power and control.” Brewer was a complicated man, and a complicated justice.
SCOTUS Quote
“The judicial task is to read words, not minds.”
— Justice Amy Coney Barrett, FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. (2026)