On Monday, Justice Clarence Thomas moved up the list of longest-serving Supreme Court justices, taking spot No. 3. And on Thursday, he will move up again to the second position. “If Thomas remains until May 20, 2028, he would set the court’s longevity record,” according to Reuters.
At the Court
Yesterday was a fairly busy day at the court.
Danco Laboratories and GenBioPro, two companies that manufacture the abortion pill mifepristone, came to the court on Saturday and asked the justices to pause a ruling by the U.S. Court of Appeals for the 5th Circuit in a lawsuit by Louisiana that reinstated the requirement that the drug be dispensed only in person. On Monday, Justice Samuel Alito, who handles emergency requests from the 5th Circuit, agreed to do so temporarily. Responses from Louisiana and the FDA to the companies’ requests are due on Thursday, and the temporary stay will expire on May 11.
Also on Monday, the court released a list of orders from the justices’ private conference on Friday. No new cases were taken up, but several petitions for review were denied. For more on Monday’s order list, see the On Site section below.
Then, later on Monday, Apple asked the court on its interim docket to stay a mandate from the U.S. Court of Appeals for the 9th Circuit affirming a district court ruling holding Apple in civil contempt for violating an injunction related to its App Store policies by charging a commission on purchases of digital goods in apps running on Apple’s operating system and downloaded from the App Store, but which take place on a third-party payment system.
Finally, on Monday night, the court granted a request to immediately finalize its opinion in Louisiana v. Callais, in which it struck down that state’s congressional map, to allow Louisiana to draw a new map in time for the 2026 elections. See the On Site section for Amy’s analysis of the order.
The court has not yet indicated when it will next release opinions.
Morning Reads
As Clarence Thomas hits a milestone, his conservative stamp on US Supreme Court endures
Jan Wolfe, Reuters (paywalled)
In its coverage of Justice Clarence Thomas’ move up the list of longest-serving justices, Reuters highlighted his “important role in guiding the court on a rightward course” over the past 35 years, “even if he has not gotten everything he has advocated” for, including in this term’s tariffs case, where he was in dissent, and in past cases on the freedom of the press, which Thomas would limit. “Thomas has helped the court’s 6-3 conservative majority, in place since 2020, to act assertively. On back-to-back days in June 2022, he was the author of a landmark ruling expanding gun rights protected by the U.S. Constitution’s Second Amendment and joined other conservative justices in overturning the 1973 Roe v. Wade decision that had legalized abortion nationwide.” Reuters noted that “Thomas, who turns 78 on June 23, has given no indication of planning to retire.”
Scalia Clerks Argued in Half the Supreme Court Cases This Term
Justin Wise and Jordan Fischer, Bloomberg Law
A new Bloomberg Law analysis found that “[f]ormer clerks to the late Justice Antonin Scalia argued in nearly three dozen cases—or 52% of the docket—before the US Supreme Court this term, far more than clerks from any other chambers.” Specifically, it found that “12 former Scalia clerks, all of whom are men, appeared in 31 arguments. ... Six cases featured two Scalia alumni taking the lectern, often on opposite sides.” One reason for the high percentage, according to Bloomberg Law, is that “Solicitor General D. John Sauer, who clerked for Scalia between 2005-06, filled out his office with other former clerks.”
Justice Neil Gorsuch: 'Aspirations for Power Need To Be Checked'
Nick Gillespie, Reason
Justice Neil Gorsuch appeared on Monday’s episode of Nick Gillespie’s podcast for Reason “to discuss his new children’s book, Heroes of 1776: The Story of the Declaration of Independence, co-authored with Janie Nitze.” Gorsuch also reflected on originalism and the recent decline in public support for the Supreme Court, and he acknowledged that, in some cases, he’ll never convince some of his colleagues to see the issues the same way he does. “[T]he judicial branch, it isn’t a popularity contest, right?,” he said, noting that the founders wanted judges to be independent. Gorsuch argued that the current justices are doing a good job reaching resolutions in “the 70 hardest cases in the country” each year, despite the fact that each one approaches each case in a slightly different way. “I’m an originalist. My friend Sonia Sotomayor is not an originalist. I’m never going to persuade her. She’s never going to persuade me. We know that. That’s part of our job. We accept that. Lawyers and judges acknowledge there’s disagreement. That’s the nature of our profession, but we can be friends.”
Rep. Olszewski to introduce ROBE Act to establish term limits for Supreme Court justices
WBFF Staff
Rep. Johnny Olszewski, a Democrat from Maryland, “is introducing a constitutional amendment that would establish term limits for Supreme Court justices,” according to WBFF, a news station in Baltimore. His Reform of Bench Eligibility, or ROBE, Act, “would establish 18-year term limits for justices.” In his press release on the proposal, Olszewski pointed to last week’s decision in Louisiana v. Callais as one reason why he believes it’s time to change the rules for Supreme Court service. “By establishing term limits, we can reduce the political gamesmanship surrounding appointments, restore balance to the process, and strengthen the integrity of the Court,” he said.
Southern state Republicans look to capitalize on Supreme Court ruling weakening Voting Rights Act
Kim Chandler, Travis Loller, and David A. Lieb, Associated Press
Alabama lawmakers began meeting on Monday to consider how to respond to the Supreme Court’s ruling in Louisiana v. Callais, and Tennessee lawmakers will begin their own special legislative session today. The states are among several in the South weighing last-minute redistricting efforts ahead of this year’s elections, according to the Associated Press. “Louisiana lawmakers, who already are in session, also are looking at how to redraw their congressional districts,” and “Trump on Sunday encouraged more states to join in,” claiming “that Republicans could gain 20 House seats.” One state that has declined to take part is South Carolina, where Gov. Henry McMaster has chosen not to “call a special session to redraw the state’s only Democratic-occupied House seat.”
On Site
From the SCOTUSblog Team
Court agrees to immediately finalize Voting Rights Act decision
The court on Monday agreed to immediately finalize its April 29 decision on the Voting Rights Act, which is expected to make it easier for the Louisiana Legislature to adopt a new congressional map in time for the 2026 elections. Justice Ketanji Brown Jackson was the lone dissenter, arguing that the court’s ruling “has spawned chaos in the State of Louisiana.” Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote a concurring opinion that responded to Jackson with equally sharp words, countering that her rhetoric “lacks restraint.”
From the SCOTUSblog Team
Supreme Court turns down COVID-19 vaccine case brought by John Stockton
The Supreme Court on Monday turned down a request from NBA Hall of Famer John Stockton to weigh in on whether his lawsuit against the Washington Medical Commission, arguing that the agency’s efforts to investigate and sanction licensed physicians in the state who discourage COVID-19 vaccination and promote treatments such as ivermectin violate the First Amendment, can go forward. The denial of review in Stockton v. Brown was part of a list of orders released from the justices’ private conference on Friday, May 1.
Contributor Corner
The docket that cannot be named
In their Controlling Opinions column, Maureen E. Brady and Richard Re explored the debate over what to “call the court’s expanded practice of ruling on cases in an unusually expedited fashion,” which is often referred to as the shadow docket, emergency docket, or interim docket. Questions about its name, they wrote, “strike at some of the central difficulties in our legal system at present.”
A Closer Look
The Evolving Role of the Amicus Brief
In a previous Closer Look, we explored the first amicus brief. In this one, we delve into the nature and history of such briefs – which should not only be of interest to Supreme Court obsessives, but to anyone fascinated by the workings of the court.
The original function of an amicus brief, filed by an amicus curiae (“friend of the court”), was to assist the presiding judge by providing additional, relevant legal or factual information that would prevent errors – that is, to make sure the court wasn’t getting anything obvious (or not so obvious) wrong.
The modern amicus brief has evolved considerably from that neutral, court-assisting role, instead serving as an “amicus [of] advocacy.” (Indeed some scholars and judges have described the practice as a form of judicial lobbying, with organizations and individuals using briefs to try and shape, rather than inform, the court.)
Although merits-stage amicus briefs are more common, they can also be filed at the cert stage. Here, the amicus briefs opine on whether the court should take the case at all. Over time such briefs have gotten considerably more popular: between 1982 and 2014, the share of cert petitions accompanied by at least one amicus brief more than doubled (from 6% to 14%).
Since the 1950s, the number of amicus briefs filed each term has increased more than 800 percent, and post-2011, there has been a decade-long “explosion” of amicus briefs at the court. Recent terms have seen between 600 and 1,000 amicus briefs, filed in approximately 90% of the court’s cases. By contrast, that figure was 35% during the 1965–66 term.
Before 2022, anyone seeking to file an amicus brief was required to obtain consent from both sides of a dispute; if consent was refused, the would-be amicus had to seek the court’s permission. In December 2022, the court announced that it was eliminating that consent requirement altogether, effective Jan. 1, 2023. In commentary accompanying the rule change, the clerk of the court explained that while the consent requirement “may have served a useful gatekeeping function in the past,” it “no longer d[id] so” since consent was almost universally granted. The same rule update also added new language specifically discouraging amicus briefs related to emergency applications, stating they should only be filed if they bring relevant matter to the court's attention that will be of “considerable help.”
Today’s amicus briefs come from a wide range of groups: special interest groups, trade organizations, government entities, non-litigants potentially affected by a case, law professors, bar organizations, and parties in similar cases. The United States, as of 2019, was the most frequent amicus filer before the court, followed by groups like the U.S. Chamber of Commerce. Unlike private parties, the federal government did not need consent from the parties to file before the 2022 rule change. And for those wondering, because the volume of filings is so high, the justices “tend not to read each [amicus] brief” in the first instance, but instead assign that task to their clerks.
SCOTUS Quote
“We have no concern with the future. It has not come yet.”
— Justice Oliver Wendell Holmes, Jr. in Union Trust Co. v. Grosman (1918)