From time to time, we like to highlight surprising and/or amusing headlines we stumble on while preparing this newsletter (often having nothing to do with the Supreme Court). Here’s a favorite from last week: Posting Video of 10-Year-Old Hockey Player’s “Tantrum” Isn’t Intentional Infliction of Emotional Distress.
And remember to register for next week’s LinkedIn Live event on this term’s highest-profile cases, which is scheduled for Wednesday, May 20, at noon EDT. Amy will be in conversation with Briefly’s Adam Stofsky.
At the Court
Last week, in response to requests from Danco Laboratories and GenBioPro, Justice Samuel Alito temporarily paused a ruling by the U.S. Court of Appeals for the 5th Circuit reinstating the requirement that the abortion pill mifepristone be dispensed only in person. That pause will expire at 5 p.m. EDT on Thursday, so the court is expected to act soon.
On Monday, Virginia asked the court on its interim docket to reinstate its new congressional map. A response to that request is due on Thursday by 5 p.m. EDT.
The court has indicated that it may release opinions on Thursday at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.
Also, the justices will meet in a private conference on Thursday to discuss cases and vote on petitions for review. Orders from that conference are expected on Monday at 9:30 a.m. EDT.
Morning Reads
Tariff Refunds of $35.5 Billion Cleared for Importers So Far
Laura Curtis, Bloomberg (paywalled)
In a Tuesday filing, the Trump administration explained that it “is in the process of issuing more than $35.5 billion to importers who successfully filed for tariff refunds after the US Supreme Court found the president’s signature economic policy unlawful,” according to Bloomberg. “The payments are being processed through a new online government portal and will include interest on duties paid.” Bloomberg noted that “[p]ayments for some of the first refund requests started reaching importers early last week,” and that up to $166 billion could eventually be refunded.
US Appeals Court Halts Order Declaring Trump's Global 10% Tariff Illegal
Asad Hashim, AFP via Barron’s
On Tuesday, the U.S. Court of Appeals for the Federal Circuit “temporarily paused a ruling” from the U.S. Court of International Trade “declaring President Donald Trump’s global 10-percent tariffs illegal, granting a government request to suspend the decision pending appeal,” according to Barron’s. “In its motion for a stay, the Trump administration argued that the CIT’s decision should be stayed pending the full run of government appeals – up to the Supreme Court, if necessary. It argued that if it issued refunds on the 10-percent global tariff, only to have an appeals court uphold its position, it would be unable to pursue economic redress.” But on Tuesday, the Federal Circuit “only granted an administrative stay” which will be in place “while the court considers the motions for a stay pending appeal.” Trump imposed the tariffs at the center of the current dispute “in February, shortly after the Supreme Court struck down many of his global tariffs.”
Gov. Kay Ivey calls second Alabama primary election in wake of Supreme Court ruling
Mike Cason, AL.com
On Monday, the Supreme Court “lifted an injunction that had barred Alabama from using a congressional district map passed by the Legislature in 2023” on the ground that it likely violated Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting. In response to the Supreme Court’s decision, Alabama Gov. Kay Ivey “called a second primary election” for Aug. 11 that “will apply to congressional districts 1, 2, 6, and 7,” the four districts that have new boundaries under the map, according to AL.com. Voting in districts that are unaffected by the map change will go forward on May 19, as originally planned.
A Modest Uptick in Supreme Court Popularity
Ilya Somin, The Volokh Conspiracy, Reason
In a post for Reason’s Volokh Conspiracy blog, Ilya Somin highlighted a YouGov poll showing that the court’s approval rating has improved slightly in recent months. The poll, which was “conducted in early May, finds that 38% of Americans approve of the job the Supreme Court is doing, while 45% disapprove.” While those numbers “may not seem very impressive,” they are, as Somin noted, “a modest improvement from polls conducted in mid to late 2025.” Additionally, the court’s approval rating remains much higher than the approval ratings for “the other two branches of government, and that difference may provide some protection against political attacks on judicial independence.”
Why 5–4?
Jesse Wegman, Major Questions with Jesse Wegman
In a post for his Substack, Jesse Wegman explored “a potential Supreme Court reform that has not gotten as much attention as term limits, expansion, and ethics rules, but which may be as effective as any of them in putting the Court in its proper place in American democracy.” He referred to this reform as the “consensus requirement,” under which the court could not strike down an act of Congress unless seven or more of the nine justices supported the decision. “The argument in favor of a consensus (also called supermajority) requirement is straightforward: Certain decisions involve matters of sufficient gravity that they demand a higher bar be cleared before they are made,” Wegman wrote.
On Site
From the SCOTUSblog Team
True threats, James Comey, and the Supreme Court: an explainer
Two weeks ago, the Department of Justice announced that a federal grand jury in New Bern, North Carolina, had indicted former FBI Director James Comey for making threats against President Donald Trump. But to move forward, the government will need to show that Comey’s speech qualifies as a “true threat” – a category of speech that does not receive First Amendment protection. In this explainer, Alex explored what, exactly, makes something a true threat.
Contributor Corner
Fighting back after the gutting of the Voting Rights Act
In her Cases and Controversies column, Carolyn Shapiro reflected on what she views as the court’s “devastating opinion” in Louisiana v. Callais and outlined “one tactic that might ameliorate at least some of the harm” the decision “is already causing” – invocation of the guarantee clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”
Podcasts
Advisory Opinions
The TED Talk Heard ‘Round the World
Sarah Isgur and David French discuss the Virginia State Supreme Court striking down the state’s new congressional maps and Neal Katyal’s TED talk that we don’t want to talk about. Plus, David plays a fun constitutional “Would You Rather” game.
A Closer Look
The Supreme Court Advocacy Project
The office of the solicitor general argues on behalf of the government before the Supreme Court. As a Supreme Court watcher, it’s likely you’ve heard either of the solicitor general himself (D. John Sauer) or someone from his office (Principal Deputy Solicitor General Sarah Harris argued four cases this term, including United States v. Hemani, on prohibiting users of illegal drugs from possessing firearms).
But is there any government office to defend the interests of criminal defendants before the Supreme Court?
The answer, until now, has been no. At its biannual meeting in March, however, the Judicial Conference of the United States – the federal judiciary’s national policymaking body for federal courts – approved the “Supreme Court Advocacy Project” for the Defender Services program. The Defender Services Office supports the Criminal Justice Act, which in 1964 was “enacted to establish a comprehensive system for appointing and compensating lawyers to represent defendants financially unable to retain counsel in federal criminal proceedings.” The goal of the Supreme Court Advocacy Project, or SCAP, is to “improve the quality of representation for [Criminal Justice Act] clients before the Supreme Court.”
The initial staff count of SCAP will be four (three attorneys and one non-attorney in a supporting position). Ashley Robertson, a current lawyer in the SG’s office (and former law clerk to Justice Elena Kagan) will, as of March, serve as SCAP’s first director. The long-term plan for SCAP, per Robertson, is for “the office to become an independent, standalone entity” that would represent criminal defendants before the justices. (For those interested in signing up, the job listing for the director or staff attorney position describes responsibilities such as assisting counsel in drafting and editing cert petitions and briefs in opposition, coordinating amicus support, monitoring the Supreme Court docket, and advising litigation teams on the interests of criminal defendants.)
The idea did not emerge from nowhere. In a 2020 University of Pennsylvania Law Review article, law professors William Ortman and Dan Epps (a contributor to SCOTUSblog’s interim docket blog), proposed the idea of a “defender general” to represent “the collective interests of criminal defendants before the Supreme Court” given the “often [] stark contrast in the quality of representation” before the justices. As Ortman and Epps pointed out, while prosecutors are typically represented by experienced lawyers working within formal institutional structures (like the SG’s office), defendants often have lawyers with little or no Supreme Court experience.
That gap has not gone unnoticed by the justices themselves. Justice Sonia Sotomayor has called it a kind of malpractice when defense attorneys insist on arguing their own cases before the court (after all, who wouldn’t want to be able to say they argued in front of the Supreme Court?) rather than handing them off to experienced SCOTUS advocates. As Justice Elena Kagan said at a Justice Department event in 2014: “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.”
(At the same time, SCAP – at least in its current form – is not without its critics. At least one has argued that the new program risks creating another bureaucracy, and that the use of existing funding for SCAP may have been beyond the scope of existing appropriations.)
We’ll learn more about SCAP in the next few months as Robertson and several other members of it step into their roles.
SCOTUS Quote
MS. GILLEY: “Well, I believe that what Justice Rehnquist looked to was the text of –”
CHIEF JUSTICE ROBERTS: “He was the chief justice, by the way.”
MS. GILLEY: “I'm sorry. Chief Justice Rehnquist.”
CHIEF JUSTICE ROBERTS: “It matters to one of us.”
(Laughter.)
MS. GILLEY: “Yes, Your Honor.”
JUSTICE SCALIA: “That's okay.”
— Henderson v. United States (2012)