"The justices did find unanimity 45 percent of the time, up two points from last term. They joined together, for instance..."

"... to say a Texas man could not be prosecuted for violating a law banning drug users from gun possession merely because he frequently used marijuana, and they agreed that a New Jersey anti-abortion group could bring a challenge in federal court to government efforts to seek its donor list. There were also examples of ideologically diverse lineups during the term. In a 5-to-4 vote on Monday, Chief Justice Roberts and Justice Amy Coney Barrett joined the court’s three liberals in supporting Mississippi’s grace period for late-arriving mail-in ballots, rejecting a push by the Trump administration to invalidate a state law. Justice Barrett also joined Chief Justice Roberts’ majority opinion this week to uphold birthright citizenship on constitutional grounds. Mr. Trump appointed Justice Barrett to the court in his first term, and her tendency to occasionally rule against his priorities has drawn harsh criticism from the president’s allies. Justice Gorsuch, who has a libertarian streak, also aligned at times with his colleagues on the left, more often than he has in the past.... But even so, a conservative bloc routinely controlled the outcome in cases large and small, with the center of the bench shifting considerably to the right...."

From "Despite Some Losses for Trump, Supreme Court Delivers Enduring Conservative Wins/The justices pushed back on some of President Trump’s signature moves, but they also expanded presidential power and supplied victories on long-sought conservative goals" (NYT).

"[T]he court overruled its 91-year-old decision in Humphrey’s Executor v. United States... [M]ore broadly, Monday’s decision was a major victory for proponents of the 'unitary executive' theory..."

"... the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers. Writing for the majority, Chief Justice John Roberts contended that 'the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.'..."

I'm reading "Supreme Court allows Trump to fire FTC commissioner and overturns major restraint on presidential power" by Amy Howe at SCOTUSblog, writing about yesterday's Trump v. Slaughter.

"In a 36-page opinion... Roberts first emphasized that the Constitution gives the president '[t]he executive Power,' as well as the responsibility to 'take Care that the Laws be faithfully executed.' The Framers of the Constitution, Roberts explained, wanted to create a system in which the one person, the president, was in charge of the executive branch. The officials who work for him, Roberts continued, are there to help him, but the president must be able to fire them if they are not performing well – so that he can carry out his own job.

"Supreme Court says Rastafarian can’t sue prison officials over shorn dreadlocks."

WaPo reports. 

This is a complicated case, written by Justice Gorsuch, for a 6-person majority, in Landor v. Louisiana Department of Corrections and Public Safety. It's about limits on Congress's power to impose conditions as it exercises its Spending Power. The statute is the Religious Land Use and Institutionalized Persons Act, and I assume most of us feel empathy for a Rastafarian prisoner who experiences a routine prison haircutting. The federal statute is designed to relieve prisoners of substantial burdens on their religion (unless the strict scrutiny standard is met). The problem is the scope of Congress's power.

Let's look at the Gorsuch opinion:

"But to me, a question lingers: Why?"

Writes Justice Gorsuch, concurring, alone, in William Trevor Case v. Montana, issued this morning, which held that "police officers generally do not violate a person’s Fourth Amendment rights when they enter his house without a warrant, but with an 'objectively reasonable basis' for believing someone inside is in physical danger and in need of immediate aid."

Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH, J., dissenting). The answer, I believe, is the latter. 

"I’ll put my cards on the table," said Justice Gorsuch. "Maybe... there is no such thing in our constitutional order as a fourth branch of government...."

In the oral argument this morning in Trump v. Slaughter, Justice Gorsuch questioned Amit Agarwal, counsel for Rebecca Kelly Slaughter, the FTC commissioner fired by President Trump. This is the entire back-and-forth, centering on the idea of the President's duty to execute all the laws. All you lawyers can see where this is going: If the President has a duty, then he must have the power.

JUSTICE GORSUCH: You agree that [the President] has a duty to faithfully execute all the laws. 

MR. AGARWAL: Yes.

JUSTICE GORSUCH: Civil and criminal.

MR. AGARWAL: We agree that the Constitution imposes on the President a duty to faithfully execute the laws, absolutely.

JUSTICE GORSUCH: All the laws?

"Of all the genres of unsatisfying nonfiction, books by Supreme Court Justices may be at the top of the heap."

"One subset is the memoir that focusses on the Justice’s early life, ending before confirmation. Justice Sonia Sotomayor’s 'My Beloved World,' Justice Ketanji Brown Jackson’s 'Lovely One,' and Justice Clarence Thomas’s 'My Grandfather’s Son' are examples. These can be gripping narratives and helpful to understanding a Justice’s formative years, but by definition they omit what readers most want to know: what the Justice did on the Court and why she did it. Another category is the learned disquisition on the law, as in Justice Neil Gorsuch’s 'A Republic, If You Can Keep It' and Justice Stephen Breyer’s 'Reading the Constitution.' These, too, fall short of readers’ hopes, for the simple reason that the authors resist any temptation to rule and tell. They write about their understanding of the law and the judicial process, but when it comes to their dealings with colleagues they remain resolutely circumspect. Barrett’s book is a mashup of the two forms: memoir and personal reflection are interlaced with explanations of legal doctrine. (Her grandmother’s unwritten recipe for shrimp remoulade provides a jumping-off point for discussing the benefits of a written constitution: 'Unwritten constitutions, like unwritten recipes, can be hard to pin down.')"

Writes Ruth Marcus, in "How the Supreme Court Defines Liberty/Recent memoirs by the Justices reveal how a new vision of restraint has led to radical outcomes" (The New Yorker).

This definitely gets my "unread books" tag (though I did read, a blog about, "My Grandfather's Son"). 

Marcus gives the Justices credit for writing "about their understanding of the law," but do they? How could they really?

Here's my old post "What I really think about the Clarence Thomas book" (from October 2007). I sort of "live-blogged" my reading of that book, and along the way, I was "accused both of fawning over him and of obsessively hating him," but, I said:

"The anti [Obergefell] forces will get Thomas and probably Alito. Roberts was strongly against at the time but..."

"...has been careful to treat it as legitimate precedent since. Gorsuch usually sides with religious litigants but also wrote Bostock, the most important gay rights decision in years, and Roberts raised eyebrows by joining him. Most people who know Barrett and Kavanaugh believe them to have zero appetite for reopening this issue. Trump isn't pushing for it. Granting cert takes four votes, overturning a case five. I don't see [Kim] Davis getting up even to three on the question of whether to overturn Obergefell. Each time I write a version of this prediction I get called rude names, as if I were consciously misleading people for some fell purpose. But as someone with real rights of my own at stake, I'm just trying to give you my honest reading. We'll probably know within three months whether the Court will hear Davis's case and if so on what question presented. Save your anger till then."

Walter Olson, quoted by Ilya Somin, in "Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case/My Cato Institute colleague Walter Olson explains" (Reason).

Should we "save [our] anger" if we don't want Obergefell overruled? Even if that's unlikely, now might be a good time to demonstrate how much it would hurt, before things escalate.

Meanwhile, I'm interested in Olson's dipping into the archaic to write "I get called rude names, as if I were consciously misleading people for some fell purpose." Fell! Why not "evil" or "nefarious"?

One answer is that he was influenced by the last syllable of "Obergefell." I don't think one would do that consciously. 

I'd guess Olson felt motivated to sound deeply literary. Some historical examples of the adjectival "fell" from the OED):

1747 I will risque all consequences, said the fell wretch. S. Richardson, Clarissa

1812 And earth from fellest foemen purge. Lord Byron, Childe Harold

1813 His fell design. W. Scott, Rokeby

1847 Even the fell Furies are appeased. R. W. Emerson, Poems

Supreme Court upholds the TikTok ban.

Opinion here.

Per curiam. Sotomayor concurs, but let's read the Gorsuch opinion, concurring:

"Four years ago, Justice Neil M. Gorsuch wrote the majority opinion in the Supreme Court’s first case on transgender rights..."

"... ruling that a federal civil rights law protects gay and transgender workers from employment discrimination. But he was silent on Wednesday, the only member of the court to ask no questions. That made it harder to predict how the court will rule, though there is reason to think that the five other members of the court’s conservative wing were not inclined to strike down the Tennessee law before them or to instruct lower courts to subject it to demanding judicial scrutiny. At the same time, it would be a mistake to read too much into his silence or his 2020 majority opinion, which was tightly bound to the text of the law, Title VII of the Civil Rights Act of 1964. Justice Gorsuch is a committed textualist, meaning that he interprets the plain words of statutes without regard to their apparent purpose.... The case now before the justices does not turn on the Civil Rights Act but on the Constitution’s equal protection clause...."

From "Live Updates: Supreme Court Appears Inclined to Uphold Tennessee Law on Transgender Care/Assessing the court’s ultimate direction was complicated by the silence of one justice in the conservative majority, Neil M. Gorsuch, the author of a key case on employment discrimination. The court’s decision is expected by June" (NYT).

"The chief hasn't announced yet whether its the last day. We'll see if he says anything from the bench today."

From SCOTUSblog, as today's opinions are about to issue.

UPDATE: There are only 2 boxes, we're told, and that means a maximum of 4 opinions.

UPDATE 2: Grants Pass v. Johnson. Gorsuch. 6-3... the usual lineup. "The court holds that the enforcement of generally applicable laws regulating camping on public property does not constitute 'cruel and unusual punishment' barred by the Eighth Amendment."

UPDATE 3: Chevron is overruled! The Chief writes the opinion in Loper Bright Enterprises v Secretary of Commerce. "Chevron, Roberts explains, 'defies the command of' the Administrative Procedure Act, the law governing federal administrative agencies, 'that the reviewing court--not the agency whose action it reviews--is to decide all relevant questions of law and interpret ... statutory provisions. It requires a court to ignore, not follow, the reading the court would have reached had it exercised its independent judgment as required by the APA.'... Roberts notes that today's decision does 'not call into question prior cases that relied on the Chevron framework... including the Clean Air Act holding of Chevron itself...'"  From the Kagan dissent: "Congress knows that it does not--in fact cannot--write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court."

UPDATE 4: If there are 2 more cases, there are 2 more Roberts-written cases. There's only one more case. The last case today is Fischer. Another 6-3 case written by Roberts. SCOTUSblog writes: "This was a case about whether a federal law that makes it a crime to corruptly obstruct congressional inquiries and investigations can be used to prosecute participants in the Jan. 6, 2021, attacks on the U.S. Capitol. The question comes to the court in the case of a former Pennsylvania police officer who entered the Capitol on Jan. 6. ... The court holds that to prove a violation of the law, the government must show that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so."

UPDATE 5: The 6-3 in Fischer is not the usual 6-3. Barrett joins the dissenters and Jackson is in the majority. Jackson's concurrence refers to the "shocking circumstances" of January 6th.

UPDATE 6: Headline at The Washington Post: "Supreme Court says prosecutors improperly charged hundreds of Jan. 6 rioters/Supreme Court’s decision on obstruction charge will impact trials of hundreds of Jan. 6 rioters and, potentially, former president Donald Trump."

UPDATE 5: The Court announced that there will be one more opinion day, Monday.

New Supreme Court cases this morning.

Follow the live-blogging at SCOTUSblog, here.

UPDATE 1: "Justice Gorsuch has two opinions today. The first is Ohio v. EPA, the EPA 'good neighbor' policy case."

UPDATE 2: The second case is Harrington v. Purdue Pharma, a bankruptcy case: "[W]ord games cannot obsure the underlying reality... the Sacklers seek greater relief than a bankruptcy charge normally affords, for they hope to extinguish even claims for wrongful death and fraud, and they seek to do so without putting anything close to all their assets on the table." That's Gorsuch, writing for the majority, joined by Thomas, Alito, Barrett, and Jackson. An unusual grouping. The dissent is written by Kavanaugh, joined by Roberts, Sotomayor, and Kagan.

UPDATE 3: SEC v. Jarkesy. SCOTUSblog says: "The court framed the issue as whether the Seventh Amendment allows the SEC to compel Jarkesy to defend himself before the agency rather than before a jury in federal court. The court holds that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial." It's 6-3, and the grouping is the usual grouping. From the dissent, by Sotomayor: "Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity, known as a public right." Gorsuch writes a concurring opinion, joined by Thomas, to say that it's not just about the Seventh Amendment. Also at play are Article III and the Due Process Clause. He writes: "The new law gave the SEC's Commissioners — the same officials who authorized the suit against Mr. Jarkesy — the power to preside over his case and issue the judgement." Yes, the case went to an "administrative law judge," "But the title 'judge' in this context is not quite what it might seem."

UPDATE 4: Finally, it's the abortion case that got leaked yesterday, Moyle v. Idaho. As expected, the writ of certiorari is dismissed as improvidently granted, and there are various opinions. Jackson concurs in part and dissents in part. Kagan concurs, joined by Sotomayor and in part by Jackson. Barrett, joined by Roberts and Kavanaugh, concurring, "agree with the decision to dismiss it because of the extent to which, in their view, the case has changed since they agreed earlier this year to take it up. Moreover, they note, there is now a 'difficult and consequential argument' in the case about whether the constitution would allow Congress to require Medicare recipients to 'violate state criminal law.'" 

AND: In Moyle, Alito dissents, joined by Thomas and Gorsuch.

6 quotes from today's oral argument in Trump v. United States.

I listened live and took some handwritten notes, so I could find various things in the transcript. Here are the 6 quotes that made the cut for me. All but one are from the Justices.

1. Trump's lawyer, D. John Sauer, encourages the Court to see far beyond Trump to the true horror of criminally prosecuting ex-Presidents:

The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for... allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?

2. In a similar vein, from Justice Alito:

So what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?

3. Justice Gorsuch makes a brilliant suggestion. If Presidents didn't have immunity from prosecution, they could give themselves the equivalent by pardoning themselves on the way out. And note the reminder that Obama could be on the hook for those drone strike murders:

"Do you think that someone who is a drug addict is absolutely incapable of -- that all people who are drug addicts are absolutely incapable of refraining from using drugs?..."

"All right. Then compare that with a person who absolutely has no place to sleep in a particular jurisdiction. Does that person have any alternative other than sleeping outside?... They have... none. They have absolutely none. There's not a single place where they can sleep.... So the point is that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside."

Said Justice Alito, in yesterday's oral argument in City of Grants Pass v. Johnson. There's a precedent, Robinson v. California, that found it to be cruel and unusual punishment to make a crime of the "status" of drug addiction. The 9th Circuit said that the city — by prohibiting sleeping outdoors — had made a crime out of the status of homelessness.

For more detail, see the SCOTUSblog coverage: "Court divided over constitutionality of criminal penalties for homelessness."

"Would pulling a fire alarm before a vote qualify for 20 years in federal prison?"

From yesterday's argument in Fischer v. United States, the case about charging January 6th defendants with violating a federal statute that arose out of the Enron scandal and was aimed at the destruction of documents.

What fits the statute under the government's interpretation?

JUSTICE GORSUCH: Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the state of the union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?

The fire alarm scenario must allude to the Jamaal Bowman incident, but of course, the Solicitor General proceeds smoothly and professionally, and calls it a "hypothetical":

GENERAL PRELOGAR: There are multiple elements of the statute that I think might not be satisfied by those hypotheticals, and it relates to the point I was going to make to the Chief Justice about the breadth of this statute. The -- the kind of built-in limitations or the things that I think would potentially suggest that many of those things wouldn't be something the government could charge or prove

Judicial restraint rears its head at this morning's abortion-pill oral argument.

“We've had...a rash of universal injunctions... This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

— SCOTUS Justice Gorsuch hits recent mifepristone rulings pic.twitter.com/5yarbyQC5s

— The Recount (@therecount) March 26, 2024

"How many statutes on the books these days, many of which are hardly ever enforced. You’re saying they can all sit there unused except for one person..."

".... who alleges that ‘I was the only person in America who’s ever been prosecuted for this because I dared express a view protected by the First Amendment’ and that’s not actionable?"

Asked Neil Gorsuch, at oral argument yesterday, quoted in "Supreme Court debates whether Texas councilwoman who says her arrest was politically motivated can sue the mayor" (CNN).

The case is Gonzalez v. Trevino, and here's the full transcript of the argument. Here's the audio.

"The Court holds that the First Amendment bars Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees."

SCOTUSblog announces.

Here's the opinion.

It's a 6-3, conservative/liberal split. Gorsuch writes. No concurring opinions. One dissenting opinion, by Sotomayor.

From the Gorsuch opinion for the majority:

Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.

The business in question is a website design firm (owned by Lorie Smith) that offers customized "text, graphic arts, and videos to 'celebrate' and 'conve[y]' the 'details' of [a wedding couple's] 'unique love story.'"

Whatever happened to the affirmative action concept of "critical mass"?

From the majority opinion in the new case, Students for Fair Admission v. Harvard:

The principal dissent’s reliance on Fisher II is similarly mistaken. There, by a 4-to-3 vote, the Court upheld a “sui generis” race-based admissions program used by the University of Texas, 579 U. S., at 377, whose “goal” it was to enroll a “critical mass” of certain minority students, Fisher I, 570 U. S., at 297. But neither Harvard nor UNC claims to be using the critical mass concept—indeed, the universities admit they do not even know what it means. See 1 App. in No. 21–707, at 402 (“[N]o one has directed anybody to achieve a critical mass, and I’m not even sure we would know what it is.” (testimony of UNC administrator)); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from Harvard administrator).

But the dissenting opinions never use the term "critical mass."

The only other mention of "critical mass" is in the concurring opinion by Justice Gorsuch:

Following Bakke, this Court declared that judges may simply “defer” to a school’s assertion that “diversity is essential” to its “educational mission.” Grutter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this deference.... Only colleges and universities, the Court explained, “occupy a special niche in our constitutional tradition.” Grutter, 539 U. S., at 329. Yet even they (wielding their “special niche” authority) cannot simply assert an interest in diversity and discriminate as they please. Fisher, 579 U. S., at 381. Instead, they may consider race only as a “plus” factor for the purpose of “attaining a critical mass of underrepresented minority students” or “a diverse student body.” Grutter, 539 U. S., at 335–336 (internal quotation marks omitted).

So is "critical mass" something no one believes in anymore? Here's how I — as a lawprof teaching these cases — explained it a decade ago:

Watching the Supreme Court. [ADDED: Supreme Court makes a moderate, minimalist change to affirmative action doctrine.]

 At SCOTUSblog.

"We have the university cases."

"The court holds that Harvard and UNC's admissions programs violate the equal protection clause of the 14th Amendment."

The Chief Justice wrote the opinion. The question is how moderate/extreme is it. 

I'm just hanging on the SCOTUSblog feed.

Ah.. no... wait: Here's the opinion.

Excerpt from syllabus:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice. Pp. 39–40.

The decision must be somewhat moderate, I'm inferring, because there are concurring opinions from Thomas, Gorsuch, and Kavanaugh. 

The Chief quotes Grutter — "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today" — and adds:

If you're conversant with negative Commerce Clause doctrine — AKA the "dormant" Commerce Clause — then you know why the Supreme Court split the way it did.

The case that came out this morning is National Pork Producers Council v. Ross.

Gorsuch announces the judgment. Much of what he says is joined by the conservatives Thomas and Barrett and by the liberals Sotomayor and Kagan, and some of what he says is joined only by Thomas and Barrett. The Chief Justice concurred in part and dissented in part, and he was joined in that dissent by the conservatives Alito and Kavanaugh and also by the liberal Jackson. There are some additional opinions by Sotomayor, Barrett, and Kavanaugh.

The Commerce Clause — which empowers Congress — has been interpreted to bar the states from discriminating against interstate commerce and, more controversially, from putting too much of a burden on interstate commerce. The California law in question in the case forbids the sale, in California, of meat from pigs that have been raised, anywhere, in a manner California deems cruel. 

The split among the conservatives seems to be between those who favor judicial restraint and federalism and those who want more freedom from regulation.