On this day in 2022, the court released Dobbs v. Jackson Women’s Health Organization, holding that the Constitution does not confer a right to abortion. A draft of the majority opinion had leaked approximately seven weeks earlier, prompting protests across the country.
At the Court
On Tuesday, the court released its opinions in five cases: Cisco Systems, Inc. v. Doe I, Exxon Mobil Corp. v. Corporación Cimex, S.A., Landor v. Louisiana Department of Corrections and Public Safety, Pung v. Isabella County, Michigan, and Blanche v. Lau.
- In Cisco, the court held that the Alien Tort Statute only allows foreigners to bring lawsuits in U.S. courts alleging serious violations of international law based on the small group of claims Congress likely had in mind when it passed the ATS. It also held that the Torture Victim Protection Act does not allow lawsuits for aiding and abetting torture. Justice Amy Coney Barrett wrote the majority opinion, and Justice Sonia Sotomayor wrote a dissenting opinion, joined in part by Justices Elena Kagan and Ketanji Brown Jackson.
- In Exxon Mobil, the court, by a vote of 6-3, held that the Helms-Burton Act trumps the sovereign immunity of Cuban agencies and instrumentalities, and thus plaintiffs who sue those agencies or instrumentalities under the act need not also satisfy one of the Foreign Sovereign Immunities Act’s enumerated exceptions. Justice Brett Kavanaugh wrote the majority opinion, and Kagan wrote a dissenting opinion, joined by Sotomayor and Jackson.
- In Landor, the court, also by a 6-3 vote, held that Damon Landor’s lawsuit against prison officials who shaved his head cannot proceed because state employees may not be held liable in their personal capacities under the Religious Land Use and Institutionalized Persons Act of 2000 unless they voluntarily and knowingly consented to answer such private suits. Justice Neil Gorsuch wrote the majority opinion, and Jackson wrote a dissenting opinion, joined by Kagan and Sotomayor.
- In Pung, the court unanimously held that the proper baseline for measuring “just compensation” following a fairly conducted tax sale is the auction sale price, not the property’s hypothetical fair market value. Justice Samuel Alito wrote for the court, and his opinion was joined in full by every justice except Justice Clarence Thomas, who joined it in part and wrote an opinion concurring in part and concurring in the judgment.
- In Lau, the court again split 6-3 in holding that federal immigration law does not require a border officer to have clear and convincing evidence that a lawful permanent resident has committed a crime involving moral turpitude before declining to admit that person into the country. Thomas wrote the majority opinion, and Jackson wrote a dissenting opinion, joined by Sotomayor and Kagan.
The court has indicated that it will next release opinions on Thursday at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30 a.m.
After opinion announcements on Thursday, the justices will meet in a private conference to discuss cases and vote on petitions for review.
Morning Reads
Former Oklahoma death row inmate has a new trial set for a 1997 killing of motel owner
Associated Press
Former Oklahoma death row inmate Richard Glossip returned to court on Tuesday, approximately 15 months after the Supreme Court overturned his conviction and one month after he was released from incarceration. “Glossip had been sentenced to death for the January 1997 killing in Oklahoma City of motel owner Barry Van Treese, his former boss,” after a trial that included testimony from Glossip’s co-defendant Justin Sneed, who “agreed to testify against Glossip to avoid the death penalty himself,” according to the Associated Press. In overturning Glossip’s conviction, the Supreme Court held “that prosecutors allowed Sneed to give testimony about his mental health history that they knew was false, and said it violated Glossip’s constitutional right to a fair trial.” On Tuesday, a state judge addressed a request from Glossip’s attorneys “to consider whether there is enough evidence to retry him,” and “ruled that a new trial would start Sept. 28.” The state “is not pursuing the death penalty again.”
A Former Reagan Official on an “Unprincipled” Supreme Court
Jesse Wegman, Major Questions with Jesse Wegman
For his Substack, Jesse Wegman interviewed Don Ayer, who clerked for Justice William Rehnquist when he was an associate justice and then went on to serve in the Reagan and George H.W. Bush administrations as principal deputy solicitor general and deputy attorney general, about his frustrations with the current court and which potential reforms might be most effective. Ayer contended that the 6-3 conservative supermajority has been “unprincipled” in its effort to overturn established precedents and has embraced originalism as “a sort of cudgel to be used selectively to support answers that otherwise defy common sense.” Ayer further argued that recent decisions overturning precedent have weakened trust in the government and suggested that term limits and “clear ethical rules that are independently enforceable by the judicial council or its designee” would help repair the damage.
Some senators want more grandstanding at the Supreme Court
The Washington Post Editorial Board (paywalled)
The Washington Post Editorial Board has come out against the bipartisan Cameras in the Courtroom Act, which would require the Supreme Court to televise its “open proceedings” and “which passed the Senate Judiciary Committee last week on a voice vote.” The board asserted that such a requirement would change the Supreme Court – and not for the better. “Just look at Congress. Members give speeches for the cameras and social media, rather than trying to persuade their colleagues.” With cameras in the courtroom, the “incentives for grandstanding – snappy sound bites, sick burns, witty repartee – would increase exponentially. The incentive for persuasion would decline.”
On Site
Opinion Analysis
Court rules former Louisiana inmate cannot sue prison officials in religious dispute over long hair
The court on Tuesday ruled in Landor v. Louisiana Department of Corrections that a Louisiana man cannot sue prison officials who shaved his head even after he showed them a copy of a court ruling that allowed him to keep his long hair for religious reasons. By a vote of 6-3, the justices agreed with the prison officials that a federal law intended to protect the religious rights of prisoners does not authorize Damon Landor’s lawsuit seeking damages from the officials.
Opinion Analysis
Supreme Court limits ability of foreigners to bring lawsuits for violations of international law
In a Tuesday ruling, the court made it far more difficult for foreigners to bring lawsuits in U.S. courts alleging serious violations of international law. In an opinion by Justice Amy Coney Barrett, the justices ruled that a 1789 law, the Alien Tort Statute, on which plaintiffs have relied to bring such cases, only allows lawsuits based on the very small group of such claims that Congress allowed for when it passed the law. The court also ruled that the Torture Victim Protection Act, a 1991 law that permits suits against individuals who subject others to torture while acting on behalf of a foreign government, does not allow lawsuits for aiding and abetting torture.
Opinion Analysis
Court rules for Exxon Mobil in Cuban confiscation case
The court ruled in Exxon Mobil v. Corporación Cimex that a lawsuit by Exxon Mobil against Cuban state-owned companies for the confiscation of assets owned by subsidiaries of the oil giant’s predecessor can go forward. Writing for the majority, Justice Brett Kavanaugh explained that the Helms-Burton Act cancels the immunity that the Cuban government and its companies would normally have, so that plaintiffs seeking to rely on that statute to sue them are not required to satisfy an exception to the Foreign Sovereign Immunities Act.
Opinion Analysis
Justices reject constitutional attack on foreclosure rules
Tuesday’s decision in Pung v. Isabella County squarely rejects an argument that longstanding use of tax foreclosure sales as a method to collect unpaid real-estate taxes violates the takings clause of the Fifth Amendment or the excessive fines clause of the Eighth Amendment.
Opinion Analysis
Court sides with government in dispute over rights of green card holders accused of committing a crime
The court in Blanche v. Lau cleared the way for immigration officers to more freely deny lawful permanent residents – also known as green card holders – admission into the U.S. By a vote of 6-3, the court, in an opinion from Justice Clarence Thomas, held that federal immigration law does not require border officers to have “clear and convincing evidence” that green card holders have committed a disqualifying crime before preventing them from reentering the country for an indefinite stay.
A Closer Look
Clerk to Justice?
Six of the nine current justices clerked at the Supreme Court before becoming justices, and three of those six (Chief Justice John Roberts, along with Justices Ketanji Brown Jackson and Brett Kavanaugh) succeeded the very justices whom they clerked for.
But let’s break that down a bit.
After graduating from Harvard Law School, Roberts first clerked for Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit (considered by some to be the greatest judge of his era). He then served as a clerk for (then associate) Justice William Rehnquist during the 1980-81 term. Approximately 25 years later, President George W. Bush nominated Roberts to fill the vacancy of retiring Justice Sandra Day O’Connor – but when Chief Justice Rehnquist died in September 2005, Bush withdrew that nomination and re-nominated Roberts to his seat – meaning Roberts succeeded his mentor.
Justice Elena Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit before serving as a clerk for Justice Thurgood Marshall during the 1987-88 term. Kagan has described Marshall as demanding a great deal from his clerks, but, according to her, he gave his time and knowledge generously to them in return. (Marshall’s nickname for her was “Shorty.”)
Justice Neil Gorsuch has the distinction on the court of having clerked for two Supreme Court justices. Although hired to clerk for Byron White, White retired in June 1993 and Gorsuch thus also clerked for Justice Anthony Kennedy – whom he came to (briefly) serve on the court with. (Gorsuch also clerked for Judge David B. Sentelle on the D.C. Circuit.)
Kavanaugh clerked for Judge Walter Stapleton of the U.S. Court of Appeals for the 3rd Circuit and for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. After this, he (like Gorsuch) clerked for Kennedy during the 1993-94 term. When Kavanaugh was confirmed to the Supreme Court in 2018, Kennedy thus became the first justice to have two former clerks on the court.
Justice Amy Coney Barrett clerked for Judge Laurence H. Silberman on the D.C. Circuit before doing so for Justice Antonin Scalia during the 1998-99 term. During her Scalia clerkship, Barrett recalled, the late justice would host a dinner at his home once during the year, a practice she now shares with her own clerks. Barrett’s fellow Scalia law clerks apparently called her “the Conenator” (a cross between her maiden name and “The Terminator” character) for “destroying flimsy legal arguments.”
Finally is Jackson, who served as a clerk for Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts and Judge Bruce M. Selya of the U.S. Court of Appeals for the 1st Circuit. She then clerked for Justice Stephen Breyer during the 1999-2000 term. Jackson has called her Breyer clerkship “an extraordinary gift,” and before assuming her spot on the bench, said she was “daunted by the prospect of having to follow in his footsteps.”
The clerk-to-justice pipeline wasn’t always a thing. Indeed, having clerked at the Supreme Court is a relatively recent, although by no means new, trend for justices. White was the first to have done so when he clerked for Chief Justice Fred Vinson in 1946. From there, Rehnquist clerked for Justice Robert Jackson; Justice John Paul Stevens clerked for Justice Wiley Rutledge; and Breyer clerked for Justice Arthur Goldberg. They were followed by the other six on the current bench.
Roberts is the first justice to have directly replaced his former mentor. But, as noted above, Gorsuch is the first justice to have served with the person he clerked for – and at Gorsuch’s swearing-in, Kennedy became the first sitting justice to swear in one of his former clerks to serve alongside him.
SCOTUS Quotes
“We recognize, as does the dissent … that [these types of] cases frequently involve heinous and inhumane acts. The political branches or other international actors may well provide redress. But we decline to distort the statutory text or the Constitution’s allocation of powers to enlist U. S. courts in that project.”
— Justice Amy Coney Barrett in Cisco Systems, Inc. v. Doe I (2026)
“The Court’s decision today is yet another notch in its belt, unabashedly remaking the law in its preferred image.”
— Justice Sonia Sotomayor, dissenting, in Cisco
