Good morning, and welcome to what’s expected to be the final week of arguments for the 2025-26 term.
Also, a reminder that the Advisory Opinions podcast is launching a newsletter that will bring information about each new AO episode right to your inbox. Sign up here.
At the Court
On Friday, the court indicated that it may announce opinions this Wednesday, April 29, at 10 a.m. EDT. Our previously planned live blog for the argument that morning in Mullin v. Doe on the Temporary Protected Status program will also address any opinion announcements.
Also on Friday, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from that conference are expected this morning at 9:30 a.m. EDT.
Also today, the justices will hear argument in Chatrie v. United States, on law enforcement’s use of geofence warrants, and Monsanto Company v. Durnell, on whether the federal law governing pesticide product labels supersedes state labeling requirements.
On Tuesday, the justices will hear argument in Cisco Systems, Inc. v. Doe I, on whether two federal laws that allow lawsuits in U.S. courts for torture and serious violations of international law permit private lawsuits for aiding and abetting such conduct.
As noted above, on Wednesday beginning at 9:30 a.m. EDT, we will be live blogging as the Supreme Court hears argument in Mullin v. Doe, on the Trump administration’s effort to end Syrians’ and Haitians’ participation in the Temporary Protected Status program. After Mullin, the justices will hear argument in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a complex dispute between manufacturers of medication and its generic substitute.
Morning Reads
Justice Department drops criminal probe of Fed chair Powell, likely clearing the way for Warsh
Christopher Rugaber and Eric Tucker, Associated Press
U.S. Attorney for the District of Columbia Jeanine Pirro announced on Friday that the “Justice Department has ended its investigation into Federal Reserve chair Jerome Powell, clearing a major roadblock to the confirmation of Kevin Warsh as his successor,” according to the Associated Press. “Sen. Thom Tillis, a North Carolina Republican, had said he would oppose Warsh until the investigation was resolved, effectively blocking his confirmation.” The Powell investigation had “focused on a $2.5 billion building renovation that Trump criticized sharply last year for its cost overruns [and] Powell’s brief testimony about the renovation before the Senate Banking Committee last June.” “Powell said in January that the investigation was not really about the renovation or his testimony but ‘is a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public, rather than following the preferences of the President.’” The investigation followed Trump’s “attempt last August to fire Lisa Cook, a member of the Fed’s governing board.” The Supreme Court will soon rule on whether Cook can keep her job.
Appeals court blocks Trump's asylum crackdown at U.S.-Mexico border
Melissa Quinn and Jacob Rosen, CBS News
On Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit “blocked President Trump’s directive suspending access to asylum and other legal protections for migrants unlawfully crossing the southern border,” holding “that federal immigration law does not allow the president to deport migrants under new summary removal proceedings implemented by the Trump administration or to suspend their right to apply for asylum,” according to CBS News. “The Trump administration can ask the full D.C. Circuit to review the decision or appeal to the Supreme Court.”
US adding firing squads, electrocution and gassing to federal execution methods
Jonathan Allen, Reuters (paywalled)
On Friday, the Trump administration announced “plans to add firing squads, electrocution and gas asphyxiation as alternative methods of executing people convicted of the gravest federal crimes ... noting difficulties in obtaining drugs for lethal injections,” according to Reuters. “Adding alternative methods to the protocol will allow for executions ‘even if a specific drug is unavailable,’ the report said.” Although prisoners on death row can challenge a planned method of execution as a violation of “the U.S. Constitution’s prohibition of ‘cruel and unusual punishments,’” “[s]uch challenges have always failed at the U.S. Supreme Court, which has never previously found an adopted execution method to be unconstitutional.”
The Eight-Figure Talent Race for Supreme Court Lawyers
C. Ryan Barber and Erin Mulvaney, The Wall Street Journal (paywalled)
The Wall Street Journal reported on the “well-compensated game of musical chairs” playing out as law firms “dangl[e] $10 million-plus compensation to lure” Supreme Court advocates. “In the latest defection, Kannon Shanmugam is leaving Paul Weiss amid a tumultuous time for the firm and decamping to Davis Polk, where he is launching a Supreme Court and appellate practice group. Slated to argue his 40th case before the high court next week, Shanmugam had been wooed by other rival firms, including Sidley Austin.” Other recent moves include Jeff Wall and Morgan Ratner to Gibson Dunn, Neal Katyal to Milbank, and Elizabeth Prelogar to Cooley. “Industry observers say that while Supreme Court lawyers hardly haul in the revenue of a rainmaker, they can help burnish firms’ reputations and drive more profitable appellate work their way.”
The Supreme Court’s not-so-sinister ‘shadow docket’
Michael W. McConnell, The Washington Post
In a column for The Washington Post, Michael W. McConnell reflected on the growing “[c]ontroversy over the Supreme Court’s so-called shadow docket,” the “pejorative label for the court’s method of deciding whether a government policy may stay in effect while challenges work their way through the system.” According to McConnell, “the wholesale condemnation” of the court’s shadow docket decisions “is misguided,” because these “cases are driven by the practical reality that it takes months if not years for a case to wend its way through the judiciary. Whether a policy is implemented while the case is litigated is often the whole ballgame. By the time it gets to the Supreme Court, the harm is already done.” “In a hierarchical system like our judiciary,” McConnell continued, “it makes sense for the final decision-maker to become involved in a case when an interim order effectively resolves the dispute.”
On Site
Case Preview
Court will consider whether Trump administration properly revoked protected status for Syrians and Haitians
On the last regularly scheduled day of arguments for the 2025-26 term, the Supreme Court will consider a dispute over the Trump administration’s efforts to significantly scale back a program that allows foreign citizens to stay in the United States when the U.S. government believes it is not safe for them to return home.
Case Preview
Justices to consider thorny dispute between manufacturers of medication and its generic substitute
Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc. presents a complex dispute between Amarin, the manufacturer of Vascepa, a prescription medication to reduce heart disease, and Hikma, which markets a generic substitute for Vascepa. The issue before the court is how hard it should be to hold Hikma responsible when pharmacists dispense Hikma’s substitute to patients who have been prescribed Vascepa for a use that infringes Amarin’s patents.
SCOTUS Outside Opinions
Digital location data heads back to the Supreme Court
In a column for SCOTUSblog, Mailyn Fidler explained why Chatrie v. United States, which will be argued today and concerns police access to certain digital records of cellphone users’ location data, “is the most important case on digital privacy the court has heard in years.”
A Closer Look:
The first “friend of the court” brief
If you follow the court’s oral argument docket in any semi-regular capacity, you’ll know that most (if not all) cases typically have numerous “friend of the court,” or amicus briefs.
Cases that attract the most amicus briefs often involve high stakes or have significant financial implications (e.g., Dobbs v. Jackson Women’s Health Organization had more than 140, New York State Rifle & Pistol Association v. Bruen had more than 80, and the SFFA cases – Students for Fair Admissions v. the University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College – had just shy of 100). Supreme Court Rule 37 states that an amicus brief that “brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.” But a brief that does not do so “burdens the Court, and its filing is not favored.”
So how did this venerable tradition begin?
It is believed that amicus briefs preceded “even the common law, having [their] roots in ancient Rome.” In 17th century England, the role of the amicus was “principally to assist judges in avoiding errors” made by the parties.
As for our Supreme Court, one of the first amicus briefs came when the justices requested the statesman Henry Clay’s help in deciding how the commerce clause applied to a land agreement (here, the Virginia-Kentucky compact of 1792) between two states. Virginia had ceded some of its land to the U.S. government in 1781, but with the understanding that “all private rights and interests of lands within the said district … shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state.” Later, Virginia landholders argued Kentucky passed laws violating their previous agreements. The court's initial 1821 opinion in Green v. Biddle, authored by Justice Joseph Story, held that Kentucky's laws violated the Constitution’s contracts clause by violating the 1792 compact.
In his amicus brief, Clay asked the court to have a full rehearing of the case, and argued that Virginia could not dictate which laws Kentucky enacted. Overturning the Kentucky laws, Clay said, would cause “the most tremendous effects of any ever delivered by a judicial tribunal,” and the court’s decision would disrupt “numerous occupants of land.” After Clay’s brief, the court withdrew its 1821 decision and allowed the case to be reargued in February 1822. Clay appeared at the second argument, but to no avail. An opinion announced by Justice Bushrod Washington reached the same conclusion as the prior one, again striking down Kentucky’s laws.
The U.S. government had filed its first amicus brief earlier, in 1812’s Schooner Exchange v. McFaddon, which “addressed the rights of Americans whose ship had been seized at sea by Napoleon’s agents and then sailed into Philadelphia under a French flag.” The attorney general was “allowed to intervene by way of ‘a suggestion,’” and contended that the ship at hand was a “French ‘public vessel’” – which the court accepted.
After Clay, amicus briefs began to be filed more frequently by the United States, state governments, private attorneys, and lobbyists. The court implemented its first written rule governing amicus briefs in 1937 – the rule that established the submission criteria still reflected in today's Rule 37. In 1990, the court issued a further rule expressly discouraging the filing of redundant amicus briefs. It is of some controversy whether that rule has proven successful, given the volume of amicus briefs has increased sharply since the 1950s, with amicus briefs in the dozens and even hundreds being filed in the most contentious cases.
SCOTUS Quote
MR. GANNON: “Well, I suspect yes, if for no other reason than be – I mean –”
JUSTICE SCALIA: “Yes, yes what? I forgot the question.”
MR. GANNON: “Yes, if for no other reason than because –“
JUSTICE SCALIA: “Yes, it's okay.”
MR. GANNON: “Yes, that that would be a problem – I'm sorry, that that would not be permissible. I've forgotten the question. But the reason why this would not be –”
CHIEF JUSTICE ROBERTS: “I thought it was an unforgettable question.”
(Laughter.)
MR. GANNON: “I promise you I won't forget it now.”
JUSTICE SCALIA: “Yes. Yes, we have no bananas.”
— Wellness International Network Ltd. v. Sharif (2015)