As we noted in Monday’s newsletter, we are expecting 20 more opinions in argued cases by early July. The court has indicated that one or more will come today, and we will be live blogging beginning at 9:30 a.m. EDT.
Plus, a reminder: If you’d like to attend our July 8 term-in-review event at Johns Hopkins University Bloomberg Center, 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 live taping of the Advisory Opinions podcast; and a discussion of the historical framework of birthright citizenship from Johns Hopkins professor Martha S. Jones.
At the Court
After any opinion announcements this morning, the justices will meet in a private conference to discuss cases and vote on petitions for review. Orders from today’s conference are expected on Monday at 9:30 a.m. EDT.
The Supreme Court will be closed tomorrow in recognition of Juneteenth. We will be sending an abridged version of this newsletter.
Morning Reads
How a Conservative Nonprofit Won a Huge Case Against Trump and Suffered for It
Lydia Wheeler, The Wall Street Journal (paywalled)
Liberty Justice Center “spent $3.5 million challenging the legality of President Trump’s global tariffs,” and, in February, secured a major Supreme Court win. But rather than receiving a surge in support as a result of its work on the tariff litigation, the conservative nonprofit has been navigating a variety of challenges, including losing some long-time conservative donors, according to The Wall Street Journal, which noted that the group “says it lost a little over 30% of its donors because of the case.” Still, the organization isn’t backing down from the tariff fight and is currently challenging new tariffs imposed after the Supreme Court’s ruling. “It’s certainly the most important work I’ve ever done and I think a lot of our team feels that way,” Sara Albrecht, Liberty Justice Center’s CEO, said.
How a Supreme Court case could affect military voting
Sarah D. Wire, USA Today
The Supreme Court is expected to rule soon in a case “on whether states can offer grace periods for when election officials receive ballots postmarked by Election Day.” A decision eliminating such grace periods “could make it more difficult for hundreds of thousands of military members stationed overseas or at bases far from home to vote,” according to USA Today. “In 2024, military and overseas ballots were rejected for lateness at more than eight times the rate of domestic mail ballots,” as reported by the Bipartisan Policy Center.
Georgia state House lawmakers will not redraw voting districts during special session
Dan Raby, CBS News
In May, "weeks after the Supreme Court issued its 6-3 ruling in Louisiana v. Callais," Georgia Gov. Brian Kemp called a special legislative session for state lawmakers to redraw Georgia's legislative maps, "saying the court's ruling made clear that Georgia would need new electoral maps before the 2028 presidential election," according to CBS News. But as that special session got underway on Wednesday, top Georgia lawmakers notified Kemp that they would not yet work on new maps, in part because they believe they need more time "to understand the full implications of the U.S. Supreme Court's decision." The lawmakers said they would instead "focus the session on tax relief and ratifying the state's gas tax suspension."
Collins does ‘not regret’ support for Kavanaugh but ‘disappointed’ with his landmark abortion ruling
Alexander Bolton, The Hill
As she continues to face pushback during her reelection campaign over her vote to confirm Justice Brett Kavanaugh, Sen. Susan Collins, a Republican from Maine, is drawing a distinction between her support for Kavanaugh’s nomination and her view on his vote to overturn Roe v. Wade in 2022, according to The Hill. “Collins told News Center Maine in a televised interview that she does not rue her support for Kavanaugh’s confirmation, arguing he was qualified to serve on the Supreme Court, but she disagreed with his decision to give states the power to set their own laws restricting abortion.” “I do not regret that vote. I do disagree with Justice Kavanaugh’s vote,” Collins said.
Louisiana watches closely as Supreme Court stops nitrogen execution in Alabama
Greg LaRose, Louisiana Illuminator
Last week, the Supreme Court declined to pause or vacate a lower court ruling barring Alabama from executing Jeffery Lee with nitrogen gas. The justices’ decision caught the attention of officials in Louisiana, the only other state that has carried out a nitrogen gas execution, according to the Louisiana Illuminator. Louisiana approved the execution method “in March 2024 because lethal injection drugs became scarce.” In a social media post, Louisiana Attorney General Liz Murrill described the delay in Lee’s execution as “a miscarriage of justice” and said Louisiana “will support Alabama in getting this matter quickly resolved.”
On Site
From the SCOTUSblog Team
Is the Supreme Court running behind?
When the justices take the bench today to issue opinions, the court will have 20 cases left to decide, with just under two weeks to go before the end of June. Amy explored how that compares to the past five terms.
Court News
Roy Moore files emergency application with Supreme Court on $8.2 million jury award
Roy Moore, the former chief justice of the Alabama Supreme Court, came to the U.S. Supreme Court on Tuesday, asking the justices to block a ruling by the U.S. Court of Appeals for the 11th Circuit from going into effect while he appeals that decision. If the lower court’s decision is not put on hold but he ultimately prevails, Moore told the justices, he may not be able to recover the $8.2 million that the jury awarded him.
Relist Watch
Bivens at the bedside
In his Relist Watch column, John Elwood highlighted two petitions for review that will be considered by the justices for a second time at today’s conference: Nielsen v. Watanabe and Mohan v. Watkins. Both petitions address what circumstances allow a prisoner to seek damages from prison officials.
Contributor Corner
Supreme Court may decide important case on immigration detention regarding attorneys’ fees
In his Immigration Matters column, César Cuauhtémoc García Hernández analyzed a petition for review asking the justices to decide whether attorneys who challenge the Department of Homeland Security’s decision to detain a migrant can recover fees from the government. If they cannot, “it will be much more difficult for migrants to find attorneys willing to bring lawsuits challenging the legal basis of their detention,” César contended.
A Closer Look
Pharms v. United States
In October 2014, the Supreme Court denied review in Jones v. United States, a case on “a judge’s power to impose a longer sentence by relying on conduct that the jury rejected as evidence of guilt,” as Lyle Denniston explained for SCOTUSblog. Lyle noted that this practice had long been the subject of debate, and that Justice Antonin Scalia was not happy with the court’s decision to turn down the case. “This has gone on long enough,” Scalia wrote in a dissent from the denial, which was joined by Justices Clarence Thomas and Ruth Bader Ginsburg.
Twelve years later, the court still hasn’t taken up the issue, although in 2023, four justices – Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – acknowledged its significance as they turned down several related petitions for review, signaling that they preferred to wait for the U.S. Sentencing Commission to address it. The next year, the commission did so, updating the federal sentencing guidelines in an attempt to limit judges’ authority to include acquitted conduct in their sentencing decisions. But the 2024 amendment did not end the practice of – or debate over – acquitted-conduct sentencing. This explains why the justices are again being asked to address it in a petition for review expected to be conferenced this week.
The instant petition centers on Keith Pharms, who in 2024 was convicted “of five criminal charges arising from his involvement in a shooting at a federal officer in the aftermath of a car theft and his subsequent conduct while in custody,” as the U.S. Court of the Appeals for the 11th Circuit explained when considering his case. One of those charges was “using a firearm during a crime of violence.” The jury convicted Pharms on this count, but it did not find that he had fired the weapon, which would have increased his minimum sentence.
Despite the jury’s decision, the district court judge treated Pharms as if he had been the shooter during sentencing, explaining that this conclusion was supported by a “preponderance of the evidence,” which is an evidence standard employed by judges during sentencing and which is a lower threshold than “beyond a reasonable doubt,” the standard that guides juries. Pharms was sentenced to 192 months in prison, reduced by his time served.
Pharms appealed to the 11th Circuit, contending that his sentence violated the Fifth and Sixth Amendments, which guarantee a right to due process and a right to a jury trial, respectively. Specifically, he asserted that acquitted-conduct sentencing deprived him of these rights by punishing him for conduct that was not proven beyond a reasonable doubt to a jury. The federal court of appeals rejected these arguments.
In his petition for review, Pharms emphasizes that justices “have repeatedly questioned the constitutionality of enhancing a criminal defendant’s sentence based on acquitted conduct” and urges the court to take up his case and “squarely address[]” whether acquitted-conduct sentencing violates the Fifth or Sixth Amendments. He also highlights a split between federal courts of appeals, which “uniformly have upheld” this sentencing practice, and state supreme courts, many of which “have held the practice unconstitutional.” “Indeed, if petitioner had been prosecuted in Georgia state court rather than federal court there, his sentence could not have been enhanced for conduct of which the jury had acquitted him,” according to the petition.
In the federal government’s response to Pharms’ petition, U.S. Solicitor General D. John Sauer asserts that the Supreme Court “has long upheld a district court’s authority to consider such conduct” proven “by a preponderance of the evidence” during the sentencing phase of a trial and asks the justices to deny review in Pharms’ case, as they have “recently and repeatedly” done with other petitions “raising similar questions.” If there is lingering confusion or concern surrounding acquitted conduct sentencing, he continues, it would be best left to Congress or the U.S. Sentencing Commission to address.
Additionally, Sauer, as Pharms did, points to the agreement between federal courts of appeals on this issue, but he presents it as evidence that the case is not worth the court’s time. “[U]niformity on the question presented is a reason to deny review, not to grant it,” Sauer writes.
Pharms v. United States is scheduled to be considered by the justices for the first time at their private conference on Thursday.
Disclosure: SCOTUSblog columnist John Elwood represents Keith Pharms. Elwood had no involvement with this Closer Look.
SCOTUS Quote
“The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books, and even to the burning of ‘witches.’”
— Justice Hugo Black in Beauharnais v. Illinois (1952)
