FEED Validator

for Atom and RSS and KML

Congratulations!

This is a valid RSS feed.

Recommendations

This feed is valid, but interoperability with the widest range of feed readers could be improved by implementing the following recommendations.

line 30, column 0: Use of unknown namespace: com-wordpress:feed-additions:1 (11 occurrences) [help]
```
<site xmlns="com-wordpress:feed-additions:1">244088387</site>	<item>
```

line 910, column 0: content:encoded should not contain iframe tag [help]

<figure class="wp-block-embed is-type-video is-provider-youtube wp-block-emb ...

Source: https://feeds.feedburner.com/scotusblog/pFXs

<?xml version="1.0" encoding="UTF-8"?><rss version="2.0"
xmlns:content="http://purl.org/rss/1.0/modules/content/"
xmlns:wfw="http://wellformedweb.org/CommentAPI/"
xmlns:dc="http://purl.org/dc/elements/1.1/"
xmlns:atom="http://www.w3.org/2005/Atom"
xmlns:sy="http://purl.org/rss/1.0/modules/syndication/"
xmlns:slash="http://purl.org/rss/1.0/modules/slash/"
>
<channel>
<title>SCOTUSblog</title>
<atom:link href="https://www.scotusblog.com/feed/" rel="self" type="application/rss+xml" />
<link>https://www.scotusblog.com/</link>
<description>Independent News and Analysis on the U.S. Supreme Court</description>
<lastBuildDate>Thu, 06 Nov 2025 21:40:07 +0000</lastBuildDate>
<language>en-US</language>
<sy:updatePeriod>
hourly </sy:updatePeriod>
<sy:updateFrequency>
1 </sy:updateFrequency>
<generator>https://wordpress.org/?v=6.8.3</generator>
<image>
<url>https://www.scotusblog.com/wp-content/uploads/2024/02/cropped-App-logo-png-1.png?w=32</url>
<title>SCOTUSblog</title>
<link>https://www.scotusblog.com/</link>
<width>32</width>
<height>32</height>
</image>
<site xmlns="com-wordpress:feed-additions:1">244088387</site> <item>
<title>Supreme Court sides with Trump administration on sex designations on passports</title>
<link>https://www.scotusblog.com/2025/11/supreme-court-sides-with-trump-administration-on-sex-designations-on-passports/</link>
<dc:creator><![CDATA[Amy Howe]]></dc:creator>
<pubDate>Thu, 06 Nov 2025 21:38:03 +0000</pubDate>
<category><![CDATA[Court News]]></category>
<category><![CDATA[Emergency appeals and applications]]></category>
<category><![CDATA[Featured]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533788</guid>
<description><![CDATA[The Supreme Court on Thursday afternoon handed the Trump administration another victory on the justices’ interim docket. In a brief, unsigned opinion, the court granted the government’s request to temporarily put […]
The post <a href="https://www.scotusblog.com/2025/11/supreme-court-sides-with-trump-administration-on-sex-designations-on-passports/">Supreme Court sides with Trump administration on sex designations on passports</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
The Supreme Court on Thursday afternoon handed the Trump administration another victory on the justices’ interim docket. In a brief, unsigned <a href="https://www.supremecourt.gov/opinions/25pdf/25a319_i4dj.pdf">opinion</a>, the court granted the government’s request to temporarily put on hold rulings by a federal judge in Massachusetts that would have required the State Department to issue passports to transgender and nonbinary Americans that reflect the sex designation of their choosing. “Displaying passport holders’ sex at birth,” the majority said, “no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”

Justice Ketanji Brown Jackson dissented, in an opinion joined by Justices Sonia Sotomayor and Elena Kagan. She contended that the majority had “once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion,” she wrote, “I respectfully dissent.” 
U.S. District Judge Julia Kobick issued the <a href="https://www.courtlistener.com/docket/69623342/74/orr-v-trump/">orders</a> at the center of the case earlier this year in a lawsuit brought by seven individual transgender and nonbinary plaintiffs. They challenged an <a href="https://www.whitehouse.gov/presidential-actions/2025/01/defending-women-from-gender-ideology-extremism-and-restoring-biological-truth-to-the-federal-government/">executive order</a>, issued by President Donald Trump on Jan. 20, indicating that the federal government would only “recognize two sexes, male and female.” The order also instructed the State Department to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”
The policy was a reversal from one adopted during the Biden administration, which had permitted transgender people to receive passports that reflected their gender identity without providing any medical documentation and added a third gender marker – “X” – for nonbinary applicants.
The challengers went to federal court, where they alleged that the new policy violated their rights to equal treatment under the Constitution, their rights to international travel and informational privacy, and the federal law governing administrative agencies. 
Kobick initially barred the federal government from enforcing the new passport policy against six of the seven individual plaintiffs while the litigation continued. (Kobick concluded that the seventh plaintiff would not be harmed if the passport policy remained in place for now because that person’s passport is consistent with his gender identity and will not expire until 2028.) Approximately two months later, Kobick extended her order, prohibiting the government from enforcing the policy against a broader group of transgender and nonbinary people who have applied or would apply for a passport consistent with their gender identity.
The U.S. Court of Appeals for the 1st Circuit declined a request from the Trump administration to temporarily pause Kobick’s order. That prompted U.S. Solicitor General D. John Sauer to come to the Supreme Court on Sept. 19, <a href="https://www.supremecourt.gov/DocketPDF/25/25A319/375147/20250919104527186_Orr_Application_FINAL.pdf">asking</a> the justices to step in. Sauer told the court that Kobick’s order “injures the United States by compelling it to speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.” And, by contrast, he argued, there would be no harm to the challengers from putting Kobick’s order on hold while the litigation continues, because Kobick’s definition of the groups covered by her order does not require “either concrete plans to travel internationally or a diagnosis of gender dysphoria.”
Representing the challengers, lawyer Chase Strangio <a href="https://www.supremecourt.gov/DocketPDF/25/25A319/378822/20251006142503899_Trump%20v.%20Orr%20-%20Opposition%20to%20Stay%20Application.pdf">urged</a> the justices to leave Kobick’s order in place. The new passport policy, Strangio wrote, “puts transgender, nonbinary, and intersex people in potential danger whenever they use a passport.” Moreover, he contended, “the government has never explained how passport sex markers that align with gender identity, including the sex the person lives as and outwardly expresses, could possibly affect foreign relations—when the challenged policy undermines the very purpose of passports as identity documents that officials check against the bearer’s appearance.”
Nearly a month after the Trump administration filed its reply brief, the court issued a brief opinion granting the government’s request to pause Kobick’s order. Not only does the passport policy not violate the challengers’ right to equal treatment, the four-paragraph opinion explained, but the facts in the case did not show that the policy of requiring a passport to display the holder’s biological sex can only be explained by “a bare  . . . desire to harm a politically unpopular group” – the relatively rare scenario in which the Supreme Court has struck down a government policy under the least stringent constitutional standard, known as rational-basis review. The challengers are also not likely to prevail on their argument that the policy violates the federal law governing administrative agencies because it is “arbitrary and capricious” (that is, illogical or unreasonable), the court continued. In issuing the policy, the court suggested, the State Department was merely following the rules outlined in Trump’s executive order.
The Trump administration is thus “likely to succeed on the merits” of its defense against the challengers’ claims, the court wrote. And because Kobick’s order “enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document,” the court said, the government “will ‘suffer[] a form of irreparable injury’” if the order is not paused. 
Jackson countered that the court had asked the wrong questions in determining whether to grant the government’s request. “Our task in deciding stay applications,” she wrote, “is not simply to make a ‘back-of-the-napkin assessment of which party has the better legal argument.’ Rather the actual nub of the project … is to fairly determine whether the applicant’s showing justifies our extraordinary intervention.” Such a calculation, she said, requires the justices to “consider not only the applicant’s likelihood of success on the merits, but also whether the applicant will suffer irreparable harm absent emergency intervention, as well as the relative harm to the parties and the public interest in the grant or denial of a stay.”
In this case, Jackson continued, the government has argued only that, with Kobick’s order in place, “the President cannot, at least for now, enact his preferred policies regarding sex markers on U.S. passports.” But the government has not explained, she stressed, “why it faces harm unless the President’s chosen policy is implemented now. It suggests that there is an urgent foreign policy interest in dictating sex markers on passports, but does not elaborate as to what that interest might possibly be.”
By contrast, Jackson wrote, the challengers “have shown they will suffer concrete injuries if the Government’s Passport Policy is immediately enforced” – the inability to obtain passports with sex markers that match their gender identity. This can lead to significant psychological issues, Jackson said, as well as the possibility of “increased violence, harassment, and discrimination.” 
“In my view,” Jackson concluded, “the Court’s failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the Court’s duty to ensure that equitable standards apply equally to all litigants—to transgender people and the Government alike.”
The post <a href="https://www.scotusblog.com/2025/11/supreme-court-sides-with-trump-administration-on-sex-designations-on-passports/">Supreme Court sides with Trump administration on sex designations on passports</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533788</post-id> </item>
<item>
<title>Court to hear argument on ICE contractor’s right to immediate appeal</title>
<link>https://www.scotusblog.com/2025/11/court-to-hear-argument-on-ice-contractors-right-to-immediate-appeal/</link>
<dc:creator><![CDATA[Ronald Mann]]></dc:creator>
<pubDate>Thu, 06 Nov 2025 20:33:44 +0000</pubDate>
<category><![CDATA[Court News]]></category>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533782</guid>
<description><![CDATA[If you want more cases about government contractors even after reading the argument earlier this week in Hencely v. Fluor Corporation, then The GEO Group v. Menocal, to be argued on Monday, […]
The post <a href="https://www.scotusblog.com/2025/11/court-to-hear-argument-on-ice-contractors-right-to-immediate-appeal/">Court to hear argument on ICE contractor’s right to immediate appeal</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
If you want more cases about government contractors even after reading the argument earlier this week in <a href="https://www.scotusblog.com/cases/case-files/hencely-v-fluor-corporation/">Hencely v. Fluor Corporation</a>, then <a href="https://www.scotusblog.com/cases/case-files/the-geo-group-inc-v-menocal/">The GEO Group v. Menocal</a>, to be argued on Monday, Nov. 10, will be just the thing for you. The issue in GEO is whether a contractor facing a district court order that refuses to give the contractor immunity can appeal immediately instead of waiting for the end of proceedings in the trial court.

To give some context, as you may recall from the discussion of Hencely, government contractors often have a defense to suits challenging their activities if they can establish that their contract with the government required them to engage in the challenged conduct. In GEO, detainees at an ICE detention facility sued the contractor (GEO) contending that GEO’s operation of the facility involved forced, unpaid labor, violating various federal and state laws. After extensive briefing, the district court held that ICE’s arrangement with GEO did not protect it from the litigation.
Although the district court had not yet finished with the case – the detainees would still have to prove their case at a potential trial – GEO did not want to go to trial. So it appealed immediately, arguing that its claim of a defense based on its status as ICE’s contractor gave it a right to an immediate – “interlocutory” – appeal. When the appellate court refused to hear that appeal, the Supreme Court took up the case to decide whether contractors are entitled to that kind of immediate appeal.
GEO <a href="https://www.supremecourt.gov/DocketPDF/24/24-758/368554/20250731150752009_24-758%20Brief%20for%20Petitioner.pdf">paints</a> this as a standard immunity case, pointing to various areas in which government officials have a right to interlocutory appeal on the theory that the question of immunity is a “collateral order” (that is, it is separate from the primary cause of action) that can be appealed immediately without waiting for a final judgment from the trial court. For GEO, its “derivative sovereign immunity,” based on the company’s claim that it performed what the government contracted with it to do, should be no different. GEO argues vehemently that the costs and risks of a trial are so burdensome that it largely deprives GEO of the benefit of its defense if it has to wait to present this on appeal.
For their part, Alejandro Menocal (and the other detainees) <a href="https://www.supremecourt.gov/DocketPDF/24/24-758/374721/20250915201017854_Menocal.Response%20Brief.pdf">contend</a> that there is no such thing as “derivative sovereign immunity,” and that GEO’s claimed defense is no different from any other defense that a business might interpose in response to its allegedly unlawful conduct. There is no reason, the detainees argue, that the contractor can’t present that defense on appeal after a trial, just as it could present any other defense that the trial court rejected.
The answer to this case will come from the justices’ close reading of their cases about the extent to which a federal contract protects government contractors through the lens of the “collateral-order” doctrine. One tell-tale indicator is that even the government is unwilling to defend GEO’s right to an interlocutory appeal: rather, the government’s <a href="https://www.supremecourt.gov/DocketPDF/24/24-758/375567/20250922190811671_24-758%20bsacUS%20%20GEOGroup%20final.pdf">brief</a> argues that the lower court reached the right result.
As far as tea-leaf reading goes, my impression is that the justices have been relatively skeptical in recent years about allowing interlocutory appeals under the collateral-order doctrine, so my guess is the contractor will face some tough questioning at the argument. In the end, it is hard to imagine a majority of the justices giving the contractor more protection than the government thinks the contractor needs.
The post <a href="https://www.scotusblog.com/2025/11/court-to-hear-argument-on-ice-contractors-right-to-immediate-appeal/">Court to hear argument on ICE contractor’s right to immediate appeal</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533782</post-id> </item>
<item>
<title>Six significant cases the justices are deciding whether to hear</title>
<link>https://www.scotusblog.com/2025/11/six-significant-cases-the-justices-are-deciding-whether-to-hear/</link>
<dc:creator><![CDATA[Kelsey Dallas]]></dc:creator>
<pubDate>Thu, 06 Nov 2025 14:30:00 +0000</pubDate>
<category><![CDATA[Court Analysis]]></category>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Potential Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533754</guid>
<description><![CDATA[The justices returned to the courtroom on Monday for the start of the court’s November sitting. On Friday, they’ll return to their conference room for their first private conference since […]
The post <a href="https://www.scotusblog.com/2025/11/six-significant-cases-the-justices-are-deciding-whether-to-hear/">Six significant cases the justices are deciding whether to hear</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
The justices returned to the courtroom on Monday for the start of the court’s November sitting. On Friday, they’ll return to their conference room for their first private conference since Oct. 17 and consider several petitions for review awaiting action from the court. 
Here’s a brief overview of six notable petitions up for consideration over the next two weeks. 

Same-sex marriage
<a href="https://www.scotusblog.com/cases/case-files/davis-v-ermold/">Davis v. Ermold</a> is one of the most-discussed petitions of the 2025-26 term. Filed by Kim Davis, a former county clerk in Kentucky who in 2015 refused on religious grounds to issue a marriage license to a gay couple, the petition asks the court to overturn its <a href="https://www.scotusblog.com/cases/case-files/obergefell-v-hodges/">decision</a> recognizing a constitutional right to same-sex marriage. Davis contends that the decision “had no basis in the Constitution” and left her “with a choice between her religious beliefs and her job,” as <a href="https://www.scotusblog.com/2025/08/will-the-supreme-court-revisit-its-ruling-on-same-sex-marriage/">Amy Howe</a> previously reported.
This petition is scheduled to be considered for the first time at the Nov. 7 conference.
Asylum applications
In <a href="https://www.scotusblog.com/cases/case-files/noem-v-al-otro-lado/">Noem v. Al Otro Lado</a>, the Trump administration is asking the justices to determine at what point someone seeking protection from violence or discrimination in their home country “arrives in the United States” and is thus entitled to the opportunity to meet with an immigration officer and formally apply for asylum under the Immigration and Nationality Act. 
Multiple administrations have interpreted that phrase to mean that someone is physically in the United States, which is why they’ve addressed border surges by capping the number of asylum seekers who can enter the country. But the U.S. Court of Appeals for the 9th Circuit held that asylum seekers arrive for the purposes of the Immigration and Nationality Act when they present themselves “to an official at the border,” even if that meeting takes place in Mexico.
This petition is scheduled to be considered for the first time at the Nov. 7 conference.
Miranda warnings from child welfare workers
Nearly 60 years ago, the Supreme Court <a href="https://www.oyez.org/cases/1965/759">held</a> that suspects in police custody need to be advised of their right to remain silent and speak with an attorney when being interrogated. But do Miranda warnings also need to be offered anytime a child-protection caseworker speaks with a parent in police custody about issues that the caseworker may be required to report to the police? That’s the question before the court in <a href="https://www.scotusblog.com/cases/case-files/densmore-v-colorado/">Densmore v. Colorado</a>, a petition filed by two men who say comments they made to caseworkers without a Miranda warning helped lead to their convictions on murder charges.
In its <a href="https://www.scotusblog.com/wp-content/uploads/2025/10/20250610125530272_250609a-Appendix_DensmorevCo.pdf#page=3">ruling</a> against the men, the Colorado Supreme Court acknowledged that the U.S. Supreme Court has <a href="https://supreme.justia.com/cases/federal/us/391/1/">held</a> – in a case involving an IRS investigator – that you don’t have to be a law enforcement officer to engage in work that serves a “predominantly law enforcement purpose,” and therefore, that some non-officers may be required to issue Miranda warnings. But the Colorado Supreme Court determined that child-welfare caseworkers don’t always fit in that category, because their primary purpose in interviews often is working out a care plan for the suspect’s child, not furthering the case against the suspect. The need for a Miranda warning from caseworkers should be assessed on a case-by-case basis, the court concluded.
This petition is scheduled to be considered for the first time at the Nov. 7 conference.
Religion and COVID-19 vaccination
In <a href="https://www.scotusblog.com/cases/case-files/does-1-2-v-hochul/">Does 1-2 v. Hochul</a>, the court has been asked to return to a question that popped up across the country during the COVID-19 pandemic: What, if anything, do employers owe to workers fired because of religious objections to the COVID-19 vaccines? 
The dispute centers on a New York state mandate that required employees at hospitals and nursing homes to be vaccinated against COVID-19 if, once infected, they could expose patients, residents, or other employees to the virus. The mandate has since been repealed, but a group of unnamed workers who lost their jobs when they refused for religious reasons to be vaccinated are seeking money damages from their former employers. They contend that the employers violated a federal law on religious accommodations in the workplace.
This petition originally was considered during the Sept. 29 conference, and it was then <a href="https://www.scotusblog.com/faqs-announcements-of-orders-and-opinions/#relists_explained">relisted</a> for the two conferences in October. The justices will consider it again on Nov. 7. 
Gun bans for 18-to-20-year-olds 
The court is set to consider <a href="https://www.scotusblog.com/cases/case-files/west-virginia-citizens-defense-league-inc-v-bureau-of-alcohol-tobacco-firearms-and-explosives/">four</a> <a href="https://www.scotusblog.com/cases/case-files/mccoy-v-bureau-of-alcohol-tobacco-firearms-and-explosives/">petitions</a> on <a href="https://www.scotusblog.com/cases/case-files/paris-v-second-amendment-foundation/">gun</a> <a href="https://www.scotusblog.com/cases/case-files/national-rifle-association-v-glass/">rights</a> that essentially pose the same question: Do laws barring adults under age 21 from purchasing guns violate the Second Amendment? Such laws have been challenged in multiple states since 2022, when the court <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf">held</a> in New York State Rifle & Pistol Association v. Bruen that modern-day gun laws need historical analogues if they are to satisfy the Second Amendment.
These petitions are scheduled to be considered for the first time at the Nov. 14 conference. If the court takes up this issue, it will become the third gun rights question on this term’s oral arguments docket. The justices already have agreed to hear cases on a federal law that prohibits <a href="https://www.scotusblog.com/cases/case-files/united-states-v-hemani/">habitual drug users</a> from having a gun and a Hawaii law that prohibits concealed carry permit holders from bringing their guns on <a href="https://www.scotusblog.com/cases/case-files/wolford-v-lopez/">private property</a> without the property owner’s express permission.
Football game prayers
In <a href="https://www.scotusblog.com/cases/case-files/cambridge-christian-school-inc-v-florida-high-school-athletic-association-inc/">Cambridge Christian School v. Florida High School Athletic Association</a>, the court has been asked to consider whether a private Christian school in Florida should have been allowed to broadcast a brief pregame prayer over a loudspeaker before a championship football game in 2015. The Florida High School Athletic Association did not allow the communal prayer because it was concerned that such a broadcast at one of its events would violate the First Amendment’s establishment clause.
Several prominent religious freedom organizations – as well as former high school football coach Joseph Kennedy, who <a href="https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/">won</a> a similar First Amendment case in front of the Supreme Court in 2022 – have filed amicus, or friend-of-the-court, briefs in support of Cambridge Christian School’s petition. In its own <a href="https://www.supremecourt.gov/DocketPDF/24/24-1261/379531/20251014125206369_24-1261%20Brief%20in%20Opposition.pdf">filing</a>, the Florida High School Athletic Association urged the court not to take up the school’s “retrospective” claims, contending that the potential ruling would “have minimal impact on anyone else in Florida” because the state has now passed a law allowing all schools participating in FHSAA championship games “to make a pregame statement of their choosing, including a prayer.”
This petition is scheduled to be considered for the first time at the Nov. 14 conference.
Looking ahead
The Supreme Court is expected to add around 30 more cases to this term’s <a href="https://www.scotusblog.com/case-files/terms/ot2025/">oral argument docket</a> over the next few months. We likely will know if any of these disputes make the cut by the end of November. 
A shorter version of this piece previously appeared in the SCOTUStoday newsletter.
The post <a href="https://www.scotusblog.com/2025/11/six-significant-cases-the-justices-are-deciding-whether-to-hear/">Six significant cases the justices are deciding whether to hear</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533754</post-id> </item>
<item>
<title>SCOTUStoday for Thursday, November 6</title>
<link>https://www.scotusblog.com/2025/11/scotustoday-for-thursday-november-6/</link>
<dc:creator><![CDATA[Kelsey Dallas]]></dc:creator>
<pubDate>Thu, 06 Nov 2025 14:00:00 +0000</pubDate>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Newsletters]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533700</guid>
<description><![CDATA[The tariffs argument lasted approximately two hours and 39 minutes. That’s long, but nothing compared to Gibbons v. Ogden. On an entirely separate note, we are excited to announce that […]
The post <a href="https://www.scotusblog.com/2025/11/scotustoday-for-thursday-november-6/">SCOTUStoday for Thursday, November 6</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
The <a href="https://www.supremecourt.gov/oral_arguments/audio/2025/24-1287">tariffs argument</a> lasted approximately two hours and 39 minutes. That’s long, but nothing compared to <a href="https://www.npr.org/sections/itsallpolitics/2011/11/15/142363047/obamacare-will-rank-among-the-longest-supreme-court-arguments-ever#:~:text=Gibbons%20v.,20%20hours%20over%20five%20days.">Gibbons v. Ogden</a>.
On an entirely separate note, we are excited to announce that Advisory Opinions host and SCOTUSblog editor Sarah Isgur’s <a href="https://www.penguinrandomhouse.com/books/776620/last-branch-standing-by-sarah-isgur/">book</a> is now available for pre-sale. According to her publisher, the book is “a myth-busting glimpse into the inner workings of the Supreme Court, revealing what we get wrong about the Roberts Court, what the justices’ clerks gossip about, and how to fix a court in crisis.” It’s an explainer for non-lawyers with plenty of fun tidbits for lawyers, too, including John Jay’s head injury, why the end of the filibuster is bad for the judiciary (and law students!), and who on the court is watching this season of Slow Horses. You can order a copy <a href="https://www.penguinrandomhouse.com/books/776620/last-branch-standing-by-sarah-isgur/">here</a>.
<h3 class="wp-block-heading" id="h-scotus-quick-hits">SCOTUS Quick Hits</h3>
<ul class="wp-block-list">
<li>The court heard argument yesterday on <a href="https://www.scotusblog.com/cases/case-files/learning-resources-inc-v-trump/">Learning Resources, Inc. v. Trump</a>, on whether the <a href="https://www.law.cornell.edu/uscode/text/50/1702">International Emergency Economic Powers Act</a> authorizes the president to impose tariffs. For key takeaways, check out <a href="https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/">Amy Howe’s coverage</a> for SCOTUSblog, Advisory Opinions’ <a href="https://www.scotusblog.com/2025/10/oral-argument-live-blog-for-wednesday-november-5/">live broadcast</a> after oral arguments ended, and analyses from Amy and Zachary Shemtob <a href="https://www.c-span.org/program/call-in/supreme-court-trump-tariff-case-reaction-analysis/668161">on C-SPAN</a>.</li>
<li>On Friday, the justices will take part in a private conference and discuss cases and <a href="https://www.scotusblog.com/case-files/petitions-were-watching/">petitions for review</a>. One of those petitions is <a href="https://www.scotusblog.com/cases/case-files/davis-v-ermold/">Davis v. Ermold</a>, in which Kim Davis is challenging the court’s recognition of a constitutional right to same-sex marriage.</li>
<li>Additional briefs in <a href="https://www.scotusblog.com/cases/case-files/trump-v-illinois/">Trump v. Illinois</a>, on President Donald Trump’s authority to federalize and deploy the National Guard in Illinois, are due by Monday, Nov. 10. That’s also the due date for the response brief in <a href="https://www.scotusblog.com/cases/case-files/blanche-v-perlmutter/">Blanche v. Perlmutter</a>, on whether the Supreme Court should pause an order that temporarily reinstated the top U.S. copyright official after her firing earlier this year.</li>
</ul>
<h3 class="wp-block-heading" id="h-morning-reads">Morning Reads</h3>
<ul class="wp-block-list">
<li><a href="https://www.nytimes.com/2025/11/05/us/politics/trump-tariff-alternatives.html">Tariffs Are Here to Stay, Even if the Supreme Court Rules Against Trump</a> (Ana Swanson, The New York Times)(Paywall) — To impose the tariffs at issue in the Supreme Court case, President Donald Trump invoked a law granting the president emergency powers. If the court holds that such emergency powers can’t be used in that way, it will be a “severe setback” for Trump, but “the president has plenty of other ways to tax imports,” according to <a href="https://www.nytimes.com/2025/11/05/us/politics/trump-tariff-alternatives.html">The New York Times</a>. “Trade lawyers and government officials say the administration could look to other legal provisions to cobble together a system of tariffs that could be less flexible but just as consequential as the emergency powers levies.”</li>
<li><a href="https://www.washingtonpost.com/politics/2025/11/05/trump-tariffs-supreme-court/">Will the Supreme Court case on tariffs affect my wallet?</a> (Justin Jouvenal, The Washington Post)(Paywall) — Most of the analysis on the tariffs case has focused on what the court’s decision will mean for the Trump administration, the business community, and the country’s financial future, rather than individual consumers. <a href="https://www.washingtonpost.com/politics/2025/11/05/trump-tariffs-supreme-court/">The Washington Post</a> explored that latter angle on Wednesday in an explainer on the case, noting that the ruling will affect individual pocketbooks. “Overall, price increases caused by tariffs will cost an average household about $2,400 in 2025, the Budget Lab calculates.”</li>
<li><a href="https://thehill.com/regulation/court-battles/5589304-eric-holder-supreme-court-reform/">Holder pushes Democrats to consider reforming ‘broken’ Supreme Court</a> (Tara Suter, The Hill) — Former U.S. Attorney General Eric Holder reiterated his call for Supreme Court reform during a recent appearance on “The MeidasTouch Podcast,” according to <a href="https://thehill.com/regulation/court-battles/5589304-eric-holder-supreme-court-reform/">The Hill</a>. If Democrats control the House, Senate, and White House after the 2028 election, they should consider making changes, he said. “I think, you know — the reality is, it pains me to say this — I think the Supreme Court is a broken institution, and it’s something that has to be, I think, a part of the national conversation in ‘26 and in ‘28, ‘What are we going to do about the Supreme Court?’” Holder said.</li>
<li><a href="https://www.vox.com/politics/467392/supreme-court-landor-louisiana-corrections-rastafarian-religion">The most horrifying religion case to hit the Supreme Court in years is also one of the hardest</a> (Ian Millhiser, Vox) — When the court considers <a href="https://www.scotusblog.com/cases/case-files/landor-v-louisiana-department-of-corrections-and-public-safety/">Landor v. Louisiana Department of Corrections and Public Safety</a>, a case on whether an individual may sue a government official in his individual capacity under the Religious Land Use and Institutionalized Persons Act, it will confront the “muddled” landscape of religious liberty law, which features overlapping federal and state protections and at-times confusing political coalitions, according to Ian Millhiser of <a href="https://www.vox.com/politics/467392/supreme-court-landor-louisiana-corrections-rastafarian-religion">Vox</a>. </li>
<li><a href="https://reason.com/volokh/2025/11/04/the-shortest-scotus-oral-argument-in-the-modern-era/">The Shortest SCOTUS Oral Argument In The Modern Era?</a> (Josh Blackman, The Volokh Conspiracy, Reason) — In a post for <a href="https://reason.com/volokh/2025/11/04/the-shortest-scotus-oral-argument-in-the-modern-era/">The Volokh Conspiracy</a>, Josh Blackman shared what he observed while attending Tuesday’s arguments on <a href="https://www.scotusblog.com/cases/case-files/coney-island-auto-parts-unlimited-inc-v-burton/">Coney Island Auto Parts Unlimited v. Burton</a>, which lasted less than 40 minutes. The justices were considering a “fun, but nerdy” question about whether there is a time limit for setting aside a void judgment for lack of personal jurisdiction, and they found time for a shared laugh, but not many questions.</li>
</ul>
<h3 class="wp-block-heading" id="h-a-closer-look-coverage-of-the-tariffs-argument">A Closer Look: Coverage of the Tariffs Argument</h3>
Wednesday’s argument in Learning Resources, Inc. v. Trump was covered live by a great deal of outlets (including <a href="https://www.scotusblog.com/2025/10/oral-argument-live-blog-for-wednesday-november-5/">SCOTUSblog</a>) and analyzed afterward by even more. One can get a good idea of how these media outlets think it went for the Trump administration based on their headlines, several of which are highlighted below. As you can see, one word in particular really seemed to be on journalists’ and editors’ minds.
<a href="https://apnews.com/article/trump-tariffs-supreme-court-bc89f3a1f5fd66e5b59f6e5330a5c0ca">Associated Press</a>: Conservative Supreme Court justices appear skeptical of Trump’s sweeping unilateral tariffs
<a href="https://www.reuters.com/world/us/supreme-court-weighs-legality-tariffs-major-test-trumps-power-2025-11-05/">Reuters</a>: US Supreme Court casts doubt on legality of Trump’s global tariffs
<a href="https://www.wsj.com/livecoverage/supreme-court-tariffs-case-stock-market-11-05-2025">The Wall Street Journal</a>: Supreme Court Appears Skeptical of Trump’s Tariffs
<a href="https://www.nytimes.com/2025/11/05/us/politics/supreme-court-trump-tariffs.html">The New York Times</a>: Key Justices Cast a Skeptical Eye on Trump’s Tariffs
<a href="https://www.washingtonpost.com/politics/2025/11/05/tariffs-trump-supreme-court-arguments/">The Washington Post</a>: Supreme Court appears skeptical of legality of most of Trump’s tariffs
<a href="https://abcnews.go.com/Politics/supreme-court-hears-trump-tariffs-case-staggering-importance/story?id=126950904">ABC News</a>: Supreme Court hears Trump tariffs case, key justices appear skeptical of president’s power
<a href="https://www.washingtontimes.com/news/2025/nov/5/supreme-court-struggles-legality-trumps-tariffs-questions-authority/">The Washington Times</a>: Supreme Court struggles with legality of Trump’s tariffs, questions his authority to bypass Congress
<a href="https://www.politico.com/news/2025/11/05/supreme-court-tariffs-donald-trump-oral-arguments-00637544">Politico</a>: Justices appear skeptical of Trump’s broad tariffs
<a href="https://www.npr.org/2025/11/05/nx-s1-5599537/supreme-court-trump-tariffs">NPR</a>: Supreme Court put Trump tariffs on a high-fire grill, in bipartisan scrutiny
<a href="https://www.foxnews.com/politics/barrett-sotomayor-tag-team-interrogation-trump-lawyer-tariff-powers">Fox News</a>: Barrett and Sotomayor tag-team interrogation of Trump lawyer on tariff powers
<a href="https://www.vox.com/politics/467485/supreme-court-tariff-argument-trump-learning-resources-vos-selections">Vox</a>: The Supreme Court might actually stand up to Trump on tariffs
<h3 class="wp-block-heading" id="h-scotus-quote">SCOTUS Quote</h3>
JUSTICE ALITO: I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I — I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument.
(Laughter.)
MR. KATYAL: Heck, yes, Justice Alito.
— <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/24-1287_097c.pdf">Learning Resources, Inc. v. Trump</a>
<h3 class="wp-block-heading" id="h-on-site">On Site</h3>
<h4 class="wp-block-heading" id="h-from-amy-howe">From Amy Howe</h4>
<a href="https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/">Court Appears Dubious of Trump’s Tariffs</a>
The Supreme Court on Wednesday seemed skeptical of President Donald Trump’s authority to impose sweeping tariffs in a series of executive orders earlier this year. During more than two-and-a-half hours of oral arguments, a majority of the justices appeared to agree with the small businesses and states challenging the tariffs that they exceeded the powers given to the president under a federal law providing him the authority to regulate commerce during national emergencies created by foreign threats, according to Amy’s <a href="https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/">argument analysis</a>.
<h4 class="wp-block-heading" id="h-view-from-the-court">View from the Court</h4>
<a href="https://www.scotusblog.com/2025/11/trumps-tariffs-from-dollars-to-donuts/">Trump’s Tariffs: From Dollars to Donuts</a>
Read Mark Walsh’s <a href="https://www.scotusblog.com/2025/11/trumps-tariffs-from-dollars-to-donuts/">latest View from the Court column</a> to learn about the Trump administration officials, lawmakers, and celebrity comedian who attended Wednesday’s oral arguments.
<h4 class="wp-block-heading" id="h-relist-watch">Relist Watch</h4>
<a href="https://www.scotusblog.com/2025/11/the-meaning-of-election-day/">The Meaning of “Election Day”</a>
The Supreme Court is meeting in conference this Friday for the first time in three weeks. A lot of cases have built up during that time – 263 to be precise, almost twice as many cases as were at the last October conference. Only one of those cases has been relisted for the first time, though: <a href="https://www.scotusblog.com/cases/case-files/watson-v-republican-national-committee/">Watson v. Republican National Committee</a>, which asks the justices to decide what “<a href="https://www.law.cornell.edu/uscode/text/3/1">election day</a>” (or “<a href="https://www.law.cornell.edu/uscode/text/2/7">the day for the election</a>”) means. To learn more about Watson, read John Elwood’s <a href="https://www.scotusblog.com/2025/11/the-meaning-of-election-day/">latest Relist Watch column</a>.
The post <a href="https://www.scotusblog.com/2025/11/scotustoday-for-thursday-november-6/">SCOTUStoday for Thursday, November 6</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533700</post-id> </item>
<item>
<title>Trump’s tariffs: from dollars to donuts</title>
<link>https://www.scotusblog.com/2025/11/trumps-tariffs-from-dollars-to-donuts/</link>
<dc:creator><![CDATA[Mark Walsh]]></dc:creator>
<pubDate>Wed, 05 Nov 2025 23:48:52 +0000</pubDate>
<category><![CDATA[Court Analysis]]></category>
<category><![CDATA[Merits Cases]]></category>
<category><![CDATA[View from the Court]]></category>
<category><![CDATA[What's Happening Now]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533743</guid>
<description><![CDATA[Security around the U.S. Supreme Court building is amped up a bit this morning, almost as if somebody really important was planning to attend. President Donald Trump toyed with the […]
The post <a href="https://www.scotusblog.com/2025/11/trumps-tariffs-from-dollars-to-donuts/">Trump’s tariffs: from dollars to donuts</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
Security around the U.S. Supreme Court building is amped up a bit this morning, almost as if somebody really important was planning to attend. 

President Donald Trump toyed with the idea of showing up in the courtroom for the arguments over the legality of his tariffs in <a href="https://www.scotusblog.com/cases/case-files/learning-resources-inc-v-trump/">Learning Resources, Inc. v. Trump</a>. But he retreated from that on <a href="https://www.reuters.com/world/us/trump-says-he-will-not-attend-supreme-courts-oral-tariff-arguments-2025-11-02/">Sunday</a>, both in a conversation on Air Force One and in a post on his Truth Social page.
“I will not be going to the Court on Wednesday in that I do not want to distract from the importance of this Decision,” Trump wrote in the post. “It will be, in my opinion, one of the most important and consequential Decisions ever made by the United States Supreme Court.”
But some key members of his administration are here today. As reporters are filing into the courtroom, Secretary of Commerce Howard Lutnick, with an entourage of security and aides, passes through our line to enter the courtroom through another door. 
He is soon joined in the courtroom by Secretary of the Treasury Scott Bessent, who had <a href="https://www.nytimes.com/2025/11/04/us/politics/supreme-court-tariffs-bessent.html">told</a> Fox News Channel’s Jesse Watters on Monday, “I’m actually going to go and sit hopefully in the front row and listen, have a ringside seat.” 
Bessent and Lutnick are indeed in the front row, but of the public section, which is well short of ringside since it is behind the multiple rows of the bar section. U.S. Trade Representative Jamieson Greer, also a member of the president’s cabinet, joins them.
A row or two behind them is Elizabeth Prelogar, who was U.S. solicitor general under President Joe Biden. After a teaching stint at Harvard, she is now at Cooley, the law firm where she worked before joining the Biden administration. 
The center bench in the court’s public section, which is reserved for members of Congress or other dignitaries, is filling fast with several men with little lapel pins indicating they are members of the House. They include Rep. Jason Smith, Republican of Missouri, the chairman of the House Ways and Means Committee; and Rep. Richard Neal, Democrat of Massachusetts, the ranking member. 
(I would say that I also “spot” Reps. Suzanne Bonamici of Oregon and Greg Stanton of Arizona, but really I was able to grab one or two of the lapel pin-wearing members after the argument to ask who they were. There are a few other House members I can’t quite put my finger on.)
Sen. Amy Klobuchar, Democrat of Minnesota, arrives to join the House members on the center bench, which is now full. So when Sen. Ed Markey, Democrat of Massachusetts, arrives just minutes before the argument begins, his escort from the marshal’s office asks some spectators in the bench nearest to our press box to scrunch over a bit to make room for him. Luckily, Markey is still as slim and fit as when I first had occasion to cover him as a House member in the 1990s.
In contrast to his fellow members of Congress, though, who will stay for the duration, Markey gets up and leaves after 20 minutes.
There is one more familiar face in the public section, though he is way in the back and I might not have noticed him if some of my press colleagues had not been stirring a bit. John Mulaney, the comedian, is here today. My colleagues also inform me that Neal Katyal, who will be arguing this morning for the private small business owners who are challenging the tariffs, was a guest on Mulaney’s Netflix show, “<a href="https://latenighter.com/features/john-mulaney-everybodys-live-episode-4-squatters-review/">Everybody’s Live with John Mulaney</a>,” in April. And it turns out Mulaney had appeared on Katyal’s podcast, <a href="https://nealkatyal.substack.com/p/episode-5-john-mulaney">Courtside</a>, in 2023.
Speaking of Katyal, he arrives carrying a banker’s box of documents, in a cardboard box literally of the “Banker’s Box” brand, to the counsel table. With him is Pratik Shah, who is representing a different set of small business owners challenging the tariffs. As many now know, when the court turned down their specific proposal for divided time, Katyal won a <a href="https://www.scotusblog.com/2025/10/trumps-tariffs-face-supreme-court-scrutiny/">coin flip</a> with Shah to speak today for the two sets of small business plaintiffs.
They greet U.S. Solicitor General D. John Sauer, who will argue for the Trump administration, and Oregon Solicitor General Benjamin Gutman, who will argue for the 12 states that are also challenging the tariffs.
Some of the plaintiffs are here in the public gallery, including Rick Woldenberg, the CEO of Learning Resources and its sister company, hand2mind, both based in suburban Chicago; as well as Victor O. Schwartz of V.O.S. Selections, the wine importer that is the lead plaintiff in <a href="https://www.scotusblog.com/cases/case-files/trump-v-v-o-s-selections/">Trump v. V.O.S. Selections, Inc</a>.
All this talk of who was in the packed courtroom barely leaves room to discuss what went on in the two-hour, 40-minute argument. 
Sauer was sometimes animated in his defense of the president’s policies. At the outset, he informally quoted Trump’s rhetoric that the trade imbalance and fentanyl emergencies behind the tariffs “are country-killing and not sustainable, that they threaten the bedrock of our national and economic security, and that fixing them will make America strong, financially viable, and a respected country once again.”
Katyal uses many vivid historical references, including that “[t]ariffs are constitutionally special because our Founders feared revenue-raising, unlike embargoes. You know, there was no Boston embargo party, but there was certainly a Boston Tea Party.”
Referring to both some possible alternative grounds for imposing tariffs and the International Emergency Economic Powers Act, the 1977 federal law that Trump is trying to use, Katyal says, “Why would any president look to all of the different tariff statutes in Title 19 if you can just IEEPA them all, French Revolution them all.”
There are also mentions of King George III and Presidents George Washington, James Polk, William McKinley, Abraham Lincoln, and Richard Nixon, as well as more recent White House occupants. Also – pirates, in a question from Justice Neil Gorsuch.
Gorsuch tells Gutman that “the really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power to Congress, the power to reach into the pockets of the American people is just different and it’s been different since the founding and the navigation acts that were part of the spark of the American revolution, where Parliament asserted the power to tax to regulate commerce.”
Gorsuch says “We had a lot of pirates in America at the time. And Americans thought even Parliament couldn’t do that, that that had to be done locally through our elected representatives.”
Gutman has a moment when Justice Brett Kavanaugh, who with Justices Clarence Thomas and Samuel Alito seemed most likely to rule for the president, refers to the government’s “donut hole” argument. That centers on the view that under the challengers’ theory, the president could shut down trade or impose quotas on a country, but not “a 1% tariff.”
Gutman replies that because the argument centers on a different kind of power, “it’s not a donut hole; it’s a different kind of pastry.”
He doesn’t specify which kind, leaving us hungry for an answer.
The court’s answer in this big case could come any time before the end of the term, but some expect it to be sooner rather than later.
The post <a href="https://www.scotusblog.com/2025/11/trumps-tariffs-from-dollars-to-donuts/">Trump’s tariffs: from dollars to donuts</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533743</post-id> </item>
<item>
<title>Court appears dubious of Trump’s tariffs</title>
<link>https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/</link>
<dc:creator><![CDATA[Amy Howe]]></dc:creator>
<pubDate>Wed, 05 Nov 2025 23:29:57 +0000</pubDate>
<category><![CDATA[Court News]]></category>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533734</guid>
<description><![CDATA[Updated on Nov. 6 at 3:37 p.m. The Supreme Court on Wednesday seemed skeptical of President Donald Trump’s authority to impose sweeping tariffs in a series of executive orders earlier […]
The post <a href="https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/">Court appears dubious of Trump’s tariffs</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
Updated on Nov. 6 at 3:37 p.m.
The Supreme Court on Wednesday seemed skeptical of President Donald Trump’s authority to impose sweeping tariffs in a series of executive orders earlier this year. During more than two-and-a-half hours of oral arguments, a majority of the justices appeared to agree with the small businesses and states challenging the tariffs that they exceeded the powers given to the president under a federal law providing him the authority to regulate commerce during national emergencies created by foreign threats.

The law at the center of the case is the <a href="https://www.congress.gov/crs-product/R45618">International Emergency Economic Powers Act</a>. Enacted in 1977, the president can invoke it “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States,” if he declares a national emergency “with respect to such threat.” Under <a href="https://www.law.cornell.edu/uscode/text/50/1702">Section 1702</a> of the law, when there is a national emergency, the president may “regulate … importation or exportation” of “property in which any foreign country or a national thereof has any interest.”
Relying on IEEPA, Trump issued a series of executive orders, beginning in February, that imposed two sets of tariffs. One set, often referred to as the “trafficking” tariffs, targeted products from China, Canada, and Mexico, which, Trump says, have not done enough to stop the flow of fentanyl into the U.S. A second set, known as the “reciprocal” tariffs, imposed an initial tariff of 10% on imports from almost all countries and even higher tariffs on products from dozens of countries. In imposing the reciprocal tariffs, Trump <a href="https://www.whitehouse.gov/presidential-actions/2025/07/further-modifying-the-reciprocal-tariff-rates/">pointed to</a> large trade deficits as an “unusual and extraordinary threat to the national security and economy of the United States.”
The <a href="https://www.scotusblog.com/cases/case-files/learning-resources-inc-v-trump/">dispute</a> before the court on Wednesday stems from three challenges to the tariffs. Two different groups of small businesses, alleging that they face serious economic harm from the tariffs, filed lawsuits in the U.S. District Court for the District of Columbia and the U.S. Court of International Trade. A group of 12 states, led by Oregon, also brought a lawsuit in the Court of International Trade. The states’ lawsuit was joined with the case brought there by the small businesses.
The challengers contended that Trump did not have the power under IEEPA to impose the tariffs. The lower courts agreed, and in September the Supreme Court agreed to take up the dispute and fast-track it. 
Representing the Trump administration, U.S. Solicitor General D. John Sauer began by emphasizing the basis for the president’s decision to impose the tariffs. He said that Trump had “determined that our exploding trade deficits had brought us to the brink of an economic and national security catastrophe,” and “that the traffic of fentanyl and other opioids into our country has created a public health crisis, taking hundreds of thousands of American lives.” Sauer told the justices that IEEPA “confers major powers to address major problems on the President, who is perhaps the most major actor in the realm of foreign affairs.” “The phrase ‘regulate … importation,’” he added, “plainly embraces tariffs, which are among the most traditional and direct methods of regulating importation.”
Neal Katyal, representing the small businesses, countered that the decision “comes down to common sense. It’s simply implausible,” he said, “that in enacting IEEPA Congress handed the President the power to overhaul the entire tariff system and the American economy in the process” – as evidenced by the fact that no other president in nearly 50 years “has ever tried to impose tariffs” relying on that law. 
Indeed, Katyal insisted, “Congress knows exactly how to delegate its tariff powers. Every time for 238 years, it’s done so explicitly, always with real limits.” And if Trump prevails in this case, Katyal cautioned, “another president could declare a climate emergency and impose huge tariffs without fines or without floors or ceilings.”
Sauer faced a barrage of questions from the court’s liberal justices. Justice Elena Kagan, for example, emphasized that Congress – not the president – had “the power to impose taxes, the power to regulate foreign commerce.” 
Sauer countered that the president’s authority under IEEPA came from what he described as “two layers”: the president’s broad constitutional powers over foreign policy and foreign relations, “and layered on top of that is a sweeping delegation of authority from Congress.” Those two layers combined, he said, reflected a recognition that the president has “inherent powers to address international emergencies,” and IEEPA gave him the “tools” to do so. Sauer also insisted that the president, in imposing the tariffs, was not exercising a power to tax; instead, he said, the tariffs were simply “regulatory.”
Justice Sonia Sotomayor was unconvinced by the latter argument. “It’s a congressional power, not a presidential power, to tax,” she told Sauer. “And you want to say tariffs are not taxes, but that’s exactly what they are. They’re generating money from American citizens, revenue.”
Justice Ketanji Brown Jackson pointed to what she described as the purpose of IEEPA, noting that the law “was designed and intended to limit presidential authority, that Congress was concerned about how presidents had been using the authority under the predecessor statute,” the Trading with the Enemy Act. “So it seems a little inconsistent,” she said, “to say that we have to interpret a statute that was designed to constrain presidential authority consistent with an understanding that Congress wanted the President to have essentially unlimited authority.”
Additional skepticism came from Justice Neil Gorsuch, who raised two related objections to the powers that Trump is claiming. Gorsuch asked Sauer, on Trump’s theory, “what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, [or] declare war to the President?” And a few minutes later, Gorsuch suggested that one problem with reading a law like IEEPA to give the president broad powers would be that it would create a “one-way ratchet toward the gradual but continual accretion of power in the executive branch” because, once the president had such powers, he could veto any effort by Congress to take them back.
Some of the other conservative justices joined Gorsuch in voicing skepticism. Chief Justice John Roberts, for example, suggested that Trump’s claim of power under IEEPA might violate the “major questions” doctrine – the idea that if Congress wants to grant power to make decisions of vast economic or political significance it must say so clearly. “No one has argued that” the phrase “regulate … importation” gives the president the power to impose tariffs “until this particular case,” Roberts observed. Moreover, he added, “Congress uses” the specific term “tariffs in other provisions but not here.” “And yet,” Roberts said, “the justification is being used for a power to impose tariffs on any product from any country … in any amount for any length of time.”
Sauer countered that “the point of the statute is to confer major powers to address major questions, which are emergencies” – suggesting that the “major questions” doctrine doesn’t apply. The major questions doctrine is a principle that the executive branch of government cannot act on a major question of economic or political significance without clear guidance from Congress. 
Gorsuch echoed Roberts’ concerns about the application of the “major questions” doctrine, asking Sauer whether a president could “impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change.” 
Sauer indicated that the Trump administration would “obviously” say that climate change is a “hoax,” but that another president would be able to do so.
Justice Amy Coney Barrett asked Sauer to point to other places in federal law “or any other time in history” where Congress used the phrase “regulate … importation” to give the president the power to impose tariffs. She also pushed back against Sauer’s suggestion that the other verbs in the provision authorizing the president to “regulate … importation” were “capacious,” and therefore should be read broadly. “Because, to me,” she said, “things like ‘nullify’ and ‘void’ have definite meanings.”
But Barrett was also skeptical at times of the challengers’ arguments. Along with Justice Brett Kavanaugh, she pressed Benjamin Gutman, the solicitor general of Oregon, who represented the group of 12 states, about whether IEEPA on the one hand could give the president very broad powers – for example, allowing him to shut down all trade with another country – but on the other would not allow him to take the much smaller step, in her view, of imposing tariffs. Such a paradox, Kavanaugh suggested, created an “odd donut hole” in IEEPA.
Gutman later responded both that IEEPA gives the president “a range of tools that are more calibrated” than simply imposing a “complete embargo.” Moreover, he added, other trade laws could allow the president to impose tariffs in such a situation.
Kavanaugh also pushed back against the challengers’ emphasis on the absence of the words “tariffs” or “duties” from IEEPA. He pointed to <a href="https://supreme.justia.com/cases/federal/us/426/548/">Federal Energy Administration v. Algonquin SNG,</a> a 1976 ruling by the court holding that a federal trade law giving the president the power to “adjust imports” allowed him to impose a licensing-fee scheme on imports of petroleum and petroleum products without mentioning that term.
Sauer pressed this point as well, telling the justices that in Algonquin the court “directly addressed and rejected the argument that the D.C. Circuit had accepted in that case, which is that when Congress wants to delegate the authority to tariff, it uses a consistently explicit and well-defined approach, which is to use these magic words, tariff, tax, impose, and so forth.” 
A few justices also focused on the portion of IEEPA that gives the president the power to “regulate … importation” by, among other things, “licenses” – which, Gorsuch suggested, might be “economically identical to a tariff.”
Barrett had a similar question, asking Katyal whether the president could “regulate commerce under IEEPA by using a licensing fee.” 
Katyal distinguished between a licensing fee and a license. The latter, he said, would be permissible, while the former would not. “[N]o president,” Katyal stressed, “has ever charged, to my knowledge, fees under” IEEPA and TWEA “for the licenses.” 
Barrett asked Katyal to address what would happen if the challengers prevailed and the tariffs were deemed invalid. In particular, she expressed concern that the process of providing reimbursements for the tariffs that had already been paid would be “a complete mess.”
Katyal stressed that there is a “whole specialized body of trade law” to deal with reimbursements, although he acknowledged that the process is “a very complicated thing.” But he added that the prospect that the reimbursement process could be messy “isn’t a reason [not] to do something.” And he offered the justices several options to take the sting out of the process, noting that they could (for example) put their decision on hold to let Congress step in or rule that their decision would only affect tariffs going forward. “There’s lots of possibilities,” he concluded.
Justice Samuel Alito also seemed sympathetic to the administration’s arguments, telling Katyal that statutes that confer emergency powers are often phrased quite broadly. 
Katyal resisted that suggestion. Citing Justice Robert Jackson, he countered that “when you’re in an emergency situation, the statutes actually have to speak with more precision. The public needs to know because emergencies beget emergencies.” 
And much like Barrett and Kavanaugh, Alito pressed Katyal about how IEEPA would operate in an emergency, describing a situation in which there is “an imminent threat of war with a very powerful enemy whose economy was heavily dependent on U.S. trade. Could a President under this provision impose a tariff as a way of trying to stave off that war, or would you say no, the President lacks that power under this” law? Alito appeared to believe that the president would have that power. But it was not clear whether Alito had four other votes on his side.
The Trump administration and the challengers have both asked the court to move quickly in deciding the case, but there is no way to know exactly when that will be. 

The post <a href="https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/">Court appears dubious of Trump’s tariffs</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533734</post-id> </item>
<item>
<title>Court debates a time limit on challenging void judgments</title>
<link>https://www.scotusblog.com/2025/11/court-debates-a-time-limit-on-challenging-void-judgments/</link>
<dc:creator><![CDATA[Kelsey Dallas]]></dc:creator>
<pubDate>Wed, 05 Nov 2025 20:00:40 +0000</pubDate>
<category><![CDATA[Court News]]></category>
<category><![CDATA[Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533720</guid>
<description><![CDATA[On Tuesday, the Supreme Court considered whether it’s possible to run out of time to challenge a judgment that never should have been issued.  The dispute in Coney Island Auto Parts Unlimited, […]
The post <a href="https://www.scotusblog.com/2025/11/court-debates-a-time-limit-on-challenging-void-judgments/">Court debates a time limit on challenging void judgments</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
On Tuesday, the Supreme Court considered whether it’s possible to run out of time to challenge a judgment that never should have been issued. 

The dispute in <a href="https://www.scotusblog.com/cases/case-files/coney-island-auto-parts-unlimited-inc-v-burton/">Coney Island Auto Parts Unlimited, Inc. v. Burtonarose</a> arose after Vista-Pro Automotive, LLC began bankruptcy proceedings in Tennessee in November 2014. As part of the bankruptcy process, Vista-Pro’s creditors in early 2015 filed separate lawsuits against companies with unpaid invoices, including Coney Island Auto Parts Unlimited. When Coney Island failed to respond, the Tennessee bankruptcy court issued a default judgment, ordering the company to pay nearly $50,000 to Vista-Pro’s creditors.
In early 2016, the Tennessee bankruptcy court appointed Jeanne Ann Burton to serve as trustee for Vista-Pro, which, by that point, was no longer in business. Burton “began working to tie up loose ends and collect obligations owed to the estate,” as she noted in her <a href="https://www.supremecourt.gov/DocketPDF/24/24-808/375151/20250919105222250_Burton%20-%20Respondent%20Brief.pdf">brief</a> to the Supreme Court, but Coney Island did not respond until 2021, after Burton had registered the Tennessee bankruptcy court’s judgment in New York and got a hold placed on the company’s bank account.
Coney Island initiated legal action in a New York bankruptcy court, alleging that the 2015 complaint was served improperly and that, for that reason, the Tennessee bankruptcy court did not have the power – known as jurisdiction – to issue a default judgment against it. The New York court declined to intervene and so did a U.S. district court, holding that Coney Island needed to seek relief directly from the Tennessee bankruptcy court.
In July 2022, Coney Island filed a motion with the Tennessee bankruptcy court seeking to have the judgment against it vacated. That court <a href="https://www.supremecourt.gov/DocketPDF/24/24-808/332663/20250123121951788_CORRECTED%20Application%20for%20Writ%20of%20Certiorari.pdf#page=109">denied the motion</a>, explaining that the seven-year gap between the default judgment and Coney Island’s motion violated the “reasonable time” standard in <a href="https://www.law.cornell.edu/rules/frcp/rule_60">Federal Rule of Civil Procedure 60</a>, which the U.S. Court of Appeals for the 6th Circuit has said applies to motions to vacate void judgments. “Even if Coney Island can succeed in showing that the judgment is otherwise void due to improper service, its request to set aside the judgment must be denied based solely on the timeliness problem,” the Tennessee bankruptcy court said. A district court and the 6th Circuit later upheld this decision.
During Tuesday’s <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/24-808_k53l.pdf">oral arguments</a>, which lasted less than 40 minutes, the justices reflected on what’s at stake in the case and how Rule 60 compares to other procedural rules. While several justices seemed interested in giving litigants who are subject to a potentially void default judgment plenty of time to challenge it, some noted that allowing unlimited time for such a challenge could be unfair to other parties to the suit or just plain “strange,” as Justice Samuel Alito put it.
Alluding to Coney Island’s claim that imposing a time limit would allow a void judgment to “spring to life” after a reasonable time had passed, Justice Ketanji Brown Jackson stated that there’s a difference between resuscitating a void judgment and imposing a “procedural limitation in terms of time.” Such rules “really don’t speak to the issue of whether or not it’s actually void,” she said. Instead, they speak to how long you have to ask a court to review the judgment. Without such a time limit, the litigant that benefited from the judgment could have their lives or work “upended at any time,” Jackson added.
In response, Daniel Ginzburg, who represented Coney Island, reiterated that “if the judgment is void from the get-go … then there cannot be a time limit.” Congress couldn’t impose one even if it wanted to, he later told Justice Sonia Sotomayor, because doing so would violate the Constitution’s due process clause. 
In a move that may have signaled his support for Coney Island’s position, Alito invited Ginzburg to share what other federal courts of appeals and legal commentators have said about applying Rule 60’s “reasonable time” standard to judgments that were void “ab initio,” or from the beginning. “I think they have almost universally … held that … the reasonable time limitation does not apply to a void judgment in the pure sense of the word,” Ginzburg responded. 
Alito later asked Lisa Blatt, who represented Burton, to account for that situation. She acknowledged that Ginzburg’s answer was correct, but she contended that, in the rulings at issue, several courts of appeals acknowledged that “they’re not following the literal text.” Such decisions are “not consistent with the Court’s modern approach” to statutory interpretation, Blatt said.
Blatt added that it would not be unheard of for the court to side against all those courts of appeals because “just last term you ruled against a case I argued when all the courts had gone our way,” prompting a burst of laughter in the courtroom. 
Although clearly amused by that response, Alito continued pressing Blatt by pointing to a <a href="https://www.supremecourt.gov/opinions/24pdf/23-1002_1p24.pdf">decision</a> from last term in which the court held that when a judgment “is void ab initio,” it should be treated “as if it never existed.” “[D]oesn’t that lead to the conclusion that was drawn by all these courts of appeals?,” he asked. 
Blatt contended that it doesn’t. When determining what amount of time is a “reasonable time,” a court could consider factors that led to the long delay, but it shouldn’t automatically treat judgments thought to be “void ab initio” differently than other potentially void judgments, she said. 
Blatt built on this answer in responses to questions from Justice Elena Kagan. She wouldn’t accept that responding in a reasonable amount of time could mean responding at any time, but she would accept that a court could interpret “reasonable time” to mean quite a lot of time when a case involves people who are “unsophisticated” in matters of law and didn’t have the resources to hire a lawyer or didn’t realize they should. She also accepted that it would make sense for the clock to start ticking once someone tries to enforce a judgment, rather than when the judgment is issued.
Based on Tuesday’s arguments, it seemed as if a majority of justices are open to applying the “reasonable time” standard but making the actual time limit dependent on the kinds of factors that Blatt discussed. It also seemed as if the court won’t need until the end of the term in late June or early July to issue its decision.
The post <a href="https://www.scotusblog.com/2025/11/court-debates-a-time-limit-on-challenging-void-judgments/">Court debates a time limit on challenging void judgments</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533720</post-id> </item>
<item>
<title>Justices make short work of procedural problems in litigation about tainted baby food</title>
<link>https://www.scotusblog.com/2025/11/justices-make-short-work-of-procedural-problems-in-litigation-about-tainted-baby-food/</link>
<dc:creator><![CDATA[Ronald Mann]]></dc:creator>
<pubDate>Wed, 05 Nov 2025 19:43:44 +0000</pubDate>
<category><![CDATA[Court News]]></category>
<category><![CDATA[Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533713</guid>
<description><![CDATA[Professor Ronald Mann previews Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., which is scheduled for argument on February 28. 
The post <a href="https://www.scotusblog.com/2025/11/justices-make-short-work-of-procedural-problems-in-litigation-about-tainted-baby-food/">Justices make short work of procedural problems in litigation about tainted baby food</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[The justices did not have a lot to say on Tuesday morning when they heard from the lawyers in <a href="https://www.scotusblog.com/cases/case-files/the-hain-celestial-group-inc-v-palmquist/">The Hain Celestial Group v Palmquist</a>, as the entire <a href="https://www.supremecourt.gov/oral_arguments/audio/2025/24-724">argument</a> occupied less than 45 minutes. The consistent tone of the justices’ comments suggests that the justices will affirm the decision of the lower court.

Hain is a case about litigation strategy. It started when a mother (Sarah Palmquist) who lives in Texas believed that toxic metal in baby food had harmed her child. The attorneys that she consulted formulated a lawsuit that would take place in the Texas state courts, reflecting the general view that state courts are more favorable to plaintiffs in this kind of litigation than federal courts (especially in Texas). Not only did they file the suit in a state court (rather than a federal court), but they also sued two different entities: the manufacturer (The Hain Celestial Group), which is based in Delaware; and the grocer from whom she bought the baby food (Whole Foods), which is based in Texas. If she had sued only Hain, it could have transferred the case to federal court under the rules for federal “diversity” jurisdiction, which apply to cases in which the litigants are from different states. The inclusion of the Texas company (Whole Foods) as a second defendant in the litigation eliminated diversity, so the case should have stayed in state court.
The case is before the Supreme Court because Hain transferred the case to federal court anyway and persuaded the federal trial court that the lawsuit against Whole Foods (the Texas company) was so feeble that the court should dismiss Whole Foods from the litigation. With Whole Foods dismissed, the trial court proceeded with a trial involving diverse parties: Palmquist (the Texan) and Hain (from Delaware). At that trial, Hain prevailed, with the trial court rejecting Palmquist’s claims that problems with the baby food harmed her child.
But when the case went up on appeal to the U.S. Court of Appeals for the 5th Circuit (the federal appeals court for Texas), that court decided that it was a mistake to dismiss Whole Foods from the litigation. With Whole Foods back in the case, the parties were no longer diverse, so the 5th Circuit threw out the trial court’s verdict and sent the case back to the state courts to give Palmquist a chance at a trial against both defendants. 
The question before the Supreme Court is whether the 5th Circuit got it right. Pretty much everything that was said in the short argument on Tuesday suggests that the Supreme Court is going to agree with the 5th Circuit.
The basic problem for Hain is that the justices – or at least those who had much to say – seem to hold two opinions that are fatal to the manufacturer’s case: First, that it is legitimate to structure the case so that it would stay in state court; and second, that it is unfair to deny the mother the chance to have the trial she wanted, in a state court against her two chosen defendants.
Things started off badly for Sarah Harrington (arguing for the Hain) when Justice Sonia Sotomayor complained that Harrington was “ignoring” that “this plaintiff wanted to be in state court,” and that the improper removal “deprived [her] permanently of [her] tactical opportunity to try this in state court.” When Harrington argued that this shouldn’t really count as prejudicial, Sotomayor interjected that “[p]arties don’t fight removal simply because they want to. They see tactical advantages in remaining in one forum versus another.”
When Sotomayor finished, Justices Amy Coney Barrett and Neil Gorsuch piled on, both commenting on the perceived “unfairness” of the district court’s treatment of Palmquist. For Gorsuch, courts should do something “about the fact that the problem here was created by your client through an improper removal? I mean, in terms of fairness, … your hands aren’t exactly clean here. … [T]he plaintiff’s choice of forum was effectively denied through an improper removal … by your client.”
At that point, Justice Elena Kagan joined the conversation, pressing the point that the plaintiff (the mother in this case) typically is regarded as “the master of her complaint.” For Kagan, Palmquist “clearly structured a suit in order to bring it in state court,” and she joined these two parties perfectly legitimately, in order to have the suit in state court, rather than in federal court. … And the effect of this district court misjudgment was … that the suit was tried in the wrong place from the plaintiff’s point of view. And the plaintiff’s point of view is the thing that should matter because the plaintiff is the master of her complaint.
Probably the most telling thing about the argument is that the justices had little or nothing to say to Russell Post (the attorney representing the mother). As a matter of practice, justices that are expecting – or seriously considering – voting against counsel typically ask questions to see if there is anything on that side of the case that they are missing. When the bench asks almost nothing – as they did here – it pretty strongly suggests a settled determination to rule in favor of the mother. With none of the justices standing up for that side at the argument, the result could come even before the turn of the year.
The post <a href="https://www.scotusblog.com/2025/11/justices-make-short-work-of-procedural-problems-in-litigation-about-tainted-baby-food/">Justices make short work of procedural problems in litigation about tainted baby food</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533713</post-id> </item>
<item>
<title>Advisory Opinions live broadcast: Trump’s Tariff Showdown</title>
<link>https://www.scotusblog.com/2025/11/advisory-opinions-live-broadcast-trumps-tariff-showdown/</link>
<dc:creator><![CDATA[SCOTUSblog]]></dc:creator>
<pubDate>Wed, 05 Nov 2025 17:56:44 +0000</pubDate>
<category><![CDATA[Court Analysis]]></category>
<category><![CDATA[Merits Cases]]></category>
<category><![CDATA[Uncategorized]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533583</guid>
<description><![CDATA[Oral arguments in the Supreme Court’s tariffs case have concluded, but the conversation isn’t over. Listen now to a special live broadcast of the Advisory Opinions podcast to reflect on […]
The post <a href="https://www.scotusblog.com/2025/11/advisory-opinions-live-broadcast-trumps-tariff-showdown/">Advisory Opinions live broadcast: Trump’s Tariff Showdown</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
Oral arguments in the Supreme Court’s <a href="https://www.scotusblog.com/cases/case-files/learning-resources-inc-v-trump/">tariffs case</a> have concluded, but the conversation isn’t over. <a href="https://www.youtube.com/watch?v=99BS7tc5KVw">Listen now</a> to a special live broadcast of the Advisory Opinions podcast to reflect on what the justices said and what could happen next.
Advisory Opinions host Sarah Isgur is joined by SCOTUSblog’s Amy Howe, David French, Roman Martinez, and David Lat. 
<figure class="wp-block-embed is-type-video is-provider-youtube wp-block-embed-youtube wp-embed-aspect-16-9 wp-has-aspect-ratio"><div class="wp-block-embed__wrapper">
<iframe title="Trump's Tariff Showdown" width="500" height="281" src="https://www.youtube.com/embed/99BS7tc5KVw?feature=oembed" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" referrerpolicy="strict-origin-when-cross-origin" allowfullscreen></iframe>
</div></figure>
The post <a href="https://www.scotusblog.com/2025/11/advisory-opinions-live-broadcast-trumps-tariff-showdown/">Advisory Opinions live broadcast: Trump’s Tariff Showdown</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533583</post-id> </item>
<item>
<title>Court leans against applying fugitive tolling in federal supervised release</title>
<link>https://www.scotusblog.com/2025/11/court-leans-against-applying-fugitive-tolling-in-federal-supervised-release/</link>
<dc:creator><![CDATA[Richard Cooke]]></dc:creator>
<pubDate>Wed, 05 Nov 2025 14:09:34 +0000</pubDate>
<category><![CDATA[Court News]]></category>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=533697</guid>
<description><![CDATA[The Supreme Court heard argument on Monday in Rico v. United States about whether defendants who flee from their probation officers’ supervision during their term of supervised release (the conditions one must follow after […]
The post <a href="https://www.scotusblog.com/2025/11/court-leans-against-applying-fugitive-tolling-in-federal-supervised-release/">Court leans against applying fugitive tolling in federal supervised release</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
The Supreme Court heard <a href="https://www.supremecourt.gov/oral_arguments/audio/2025/24-1056">argument</a> on Monday in <a href="https://www.scotusblog.com/cases/case-files/rico-v-united-states/">Rico v. United States</a> about whether defendants who flee from their probation officers’ supervision during their term of supervised release (the conditions one must follow after being released from incarceration) can claim that the term of supervision continued and then expired when they were a fugitive. If the term of supervision can expire while a defendant is a fugitive, and a doctrine called fugitive tolling does not apply to prevent that expiration, then a court would lack the power to issue any warrant or summons for new violations of the conditions of supervision after the term’s expiration. When the new violations are themselves new crimes, and not a more technical violation like failing to submit to a drug test, the defendant can be prosecuted separately for those new crimes. But without fugitive tolling, the district court would lack the authority to revoke supervised release for crimes discovered after the term of supervision ended.

If this isn’t confusing enough, in Rico’s case, fugitive tolling was not needed to enable the district judge to revoke her supervised release and instead simply affected what punishment she should receive. That added complexity ultimately highlighted a diminished practical significance of the court’s ruling, as reflected in the justices’ questions. 
Fugitive tolling is shaped by one central statutory provision, <a href="https://www.law.cornell.edu/uscode/text/18/3583">18 U.S.C. § 3583(i)</a>. Section 3583(i), titled “Delayed Revocation,” says that, if a court issues a warrant or summons for violations of supervised release before the term of supervision expires, then the court will continue to have the power to revoke the defendant’s term of supervision and impose both a prison term and a further period of supervised release for those violations. Consequently, under Section 3583(i), if a defendant becomes a fugitive while on supervised release, and the probation officer files a petition to revoke supervised release before the term ends, fugitive tolling is unnecessary to revoke the defendant’s term of supervision. Section 3583(i) gives the court authority to revoke supervision because the defendant became a fugitive, and a court would not have to rely on any further conduct by the defendant, such as the commission of a new crime, to revoke supervised release. And when the court turns to the appropriate sentence for the revocation, it could simply take into account all of the defendant’s conduct, including new crimes committed after the expiration of the term of supervised release.
That practical reality led to a question from Justice Samuel Alito early in the oral argument that underscored just how little is at stake in typical cases about whether fugitive tolling applies to a term of supervised release. Alito asked Rico’s counsel, Adam Unikowsky, whether “what she did after the expiration” of her term of supervised release in committing new crimes was “any less relevant” to the sentencing determination “than what she did before the expiration of” her term of supervision. Alito indicated that all of the defendant’s conduct seemed relevant to choosing a sentence, and if that is correct, then in Rico’s case, the sole difference that fugitive tolling would make is in determining her sentencing guidelines range. Unikowsky agreed.
To understand Alito’s point about the sentencing guidelines range, which advises judges on how much punishment a defendant should receive, it is helpful to know how it is determined for a violation of supervised release. Under those guidelines, fleeing from supervision counts as a Grade C violation, the least serious grade of supervised release violation and results, for Rico, in an advisory guideline range of 8 to 14 months of imprisonment given her criminal history. But if the fugitive tolling doctrine allows a court to treat her crimes while a fugitive as also counting as violations of supervised release, in addition to her absconding, then Rico would have Grade A violations. The guidelines treat the additional crimes as more serious, resulting in an advisory guideline range of 33 to 36 months of imprisonment.
The court in Rico’s case ended up imposing a sentence of 16 months, slightly above the Grade C range and well below the Grade A range. Consequently, although it is obvious that the court understood it was not obliged to impose a sentence within the sentencing guidelines range, Rico’s argument is that without fugitive tolling, her guidelines range would have been lower, and that might have affected what sentence the judge thought was appropriate. 
At the oral argument both Unikowsky and the lawyer for the government, Joshua Handell, pointed out that there are other, unusual scenarios, not presented by Rico’s case, where the lack of a fugitive tolling doctrine could affect more than just the advisory guidelines range. If no warrant or summons were issued before the defendant’s term of supervision expired, the availability of fugitive tolling for the term of supervised release in that scenario would make the difference on whether the court could revoke the term of supervision at all. Section 3583(i)’s requirements would not be satisfied, since the term of supervision would have expired.
But Justice Neil Gorsuch highlighted that these other scenarios are unusual and typically involve a defendant who flees near the end of a term of supervision, without detection, before the term of supervision expires. The stakes from these unusual scenarios appeared small.
Raising an issue distinct from when crimes by a fugitive count as violations of supervised release, Justice Ketanji Brown Jackson noted that a defendant who flees from supervision cannot be said to have received “credit” for the time spent as a fugitive. Under Section 3583(h), when a court revokes supervision, the court may impose a term of imprisonment as well as a new term of supervised release to follow, with the caveat that the new term of supervision must be reduced by the length of the term of imprisonment that the court imposed. That caveat, while preventing supervision from effectively lasting forever for repeat offenders of the terms of supervised release, does not meaningfully translate into a “credit” for being a fugitive.
In an argument where practical considerations loomed large, the justices also engaged with the parties’ technical arguments about the application of the fugitive-tolling doctrine. For example, the government invoked what Unikowsky acknowledged was an “intuitive” argument that a defendant who is a fugitive is not serving “supervised” release and should not be allowed to treat the clock of “supervision” as running. But perhaps in part because of the muted practical consequences of rejecting that point, it appears that the justices may find countervailing considerations more persuasive, such as Unikowsky’s argument that the government’s theory requires accepting both that the term of supervision is tolled while the defendant is a fugitive and at the same time that crimes the defendant commits as a fugitive violate the term of supervised release.
The post <a href="https://www.scotusblog.com/2025/11/court-leans-against-applying-fugitive-tolling-in-federal-supervised-release/">Court leans against applying fugitive tolling in federal supervised release</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">533697</post-id> </item>
</channel>
</rss>

If you would like to create a banner that links to this page (i.e. this validation result), do the following:

Download the "valid RSS" banner.
Upload the image to your own server. (This step is important. Please do not link directly to the image on this server.)
Add this HTML to your page (change the image src attribute if necessary):

<a href="http://www.feedvalidator.org/check.cgi?url=https%3A//feeds.feedburner.com/scotusblog/pFXs"><img src="valid-rss-rogers.png" alt="[Valid RSS]" title="Validate my RSS feed" /></a>

If you would like to create a text link instead, here is the URL you can use:

http://www.feedvalidator.org/check.cgi?url=https%3A//feeds.feedburner.com/scotusblog/pFXs

Home · About · News · Docs · Terms