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<title>Judicial Deference?</title>
<link>https://www.scotusblog.com/2025/07/judicial-deference/</link>
<dc:creator><![CDATA[Erwin Chemerinsky]]></dc:creator>
<pubDate>Tue, 15 Jul 2025 15:41:41 +0000</pubDate>
<category><![CDATA[Courtly Observations]]></category>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Recurring Columns]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530148</guid>
<description><![CDATA[Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives. […]
The post <a href="https://www.scotusblog.com/2025/07/judicial-deference/">Judicial Deference?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
<a href="https://www.scotusblog.com/category/courtly-observations/">Courtly Observations</a> is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.
I teach my students that a central issue in constitutional law is when courts should defer to the actions of the government. I thought of this question as I read two cases from the end of the term that raised “culture war” issues: <a href="https://www.scotusblog.com/cases/case-files/united-states-v-skrmetti/">United States v. Skrmetti</a> and <a href="https://www.scotusblog.com/cases/case-files/mahmoud-v-taylor/">Mahmoud v. Taylor</a>.  Although the court tries to provide facially plausible reasoning for its controversial rulings in each case, it is clear that the court in fact chooses when to defer to the government – and when not to defer – simply based on the justices’ own conservative or liberal value judgments about the issues.

In United States v. Skrmetti, the Supreme Court upheld the Tennessee law prohibiting gender affirming care for transgender youth. Chief Justice John Roberts wrote for the 6-3 majority and stressed the need for the court to defer to the judgment of the Tennessee legislature in deciding this contentious issue. He concluded his opinion by saying that the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”
By contrast, in Mahmoud v. Taylor, the Supreme Court, again 6-3, found that the Montgomery County Board of Education violated parents’ free exercise of religion to deny them notice and the ability to opt their children out of exposure to material that they find objectionable on religious grounds. Strikingly, the court’s majority gave no deference at all to the elected school board that chose the curriculum. Traditionally, this has been an area of great judicial deference to educators.
Why did the conservative justices defer in the former case, but not the latter? Correspondingly, why did the liberal justices defer in Mahmoud, but not Skrmetti? Both involved provisions in the text of the Constitution: the equal protection clause in Skrmetti and the free exercise clause in Mahmoud. Nor did the majority try to defend its ruling on originalist grounds, perhaps given the difficulties of parsing out the original meaning of the Constitution with regard to discrimination against transgender individuals or as to public schools’ choice of material for their curriculum.
The superficial answer to explain the results is that the court used the rational basis review in Skrmetti (that is, whether the state legislature’s decision bore a rational relationship to a reasonable state interest), but strict scrutiny in Mahmoud (that is, whether the school board could prove its actions were “narrowly tailored” to further a “compelling state interest” as least restrictively as possible). But that explanation just begs the question. Of course, if it is strict scrutiny, the court does not defer to the state, while rational basis review is all about deference. These cases – and others this term such as <a href="https://www.scotusblog.com/cases/case-files/free-speech-coalition-inc-v-paxton/">Free Speech Coalition v. Paxton</a>, <a href="https://www.scotusblog.com/cases/case-files/catholic-charities-bureau-inc-v-wisconsin-labor-industry-review-commission/">Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission</a>, and <a href="https://www.scotusblog.com/cases/case-files/tiktok-inc-v-garland/">Tik Tok, Inc. v. Garland</a> – show, again, at least superficially, the continued great importance of the level of scrutiny in the court’s analysis.
But the court chooses the level of scrutiny based on whether it wants to defer. In Skrmetti, the conservative majority made clear that it wanted to defer to the Tennessee legislature, so it naturally chose rational basis review. In Mahmoud, the majority did not want to defer and so used strict scrutiny. In other words, the level of scrutiny got them to the result they wanted.
Or compare two cases from more than a decade ago. On Tuesday, June 25, 2013, the Supreme Court decided <a href="https://www.scotusblog.com/cases/case-files/shelby-county-v-holder/">Shelby County v. Holder</a>, where it declared unconstitutional the “preclearance” requirement under of the Voting Rights Act. This provision required jurisdictions with a prior history of race discrimination in voting to get preapproval before significant changes in their election systems. Chief Justice John Roberts wrote the majority opinion, and was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The court said that Congress had not relied on recent data in extending the preclearance requirement. More importantly, the court said that requiring only some jurisdictions to obtain preclearance violated the principle of equal state sovereignty, that Congress must treat all states the same.
Justice Ruth Bader Ginsburg wrote one of her most iconic dissents, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. She expressed the need for great deference to Congress in its judgment, supported by a voluminous legislative history, that preclearance remained essential to combating race discrimination in voting.
The very next day, Wednesday, June 26, the court decided <a href="https://www.scotusblog.com/cases/case-files/windsor-v-united-states-2/">United States v. Windsor</a> and declared unconstitutional a provision of the federal Defense of Marriage Act which said that for purposes of federal law marriage had to be between a man and a woman. Justice Kennedy wrote the opinion for the court finding the provision to violate equal protection. The four dissenters from the day before in Shelby County – Ginsburg, Breyer, Sotomayor, and Kagan – joined Justice Kennedy in the majority.
Chief Justice Roberts wrote a dissenting opinion, as did Justices Scalia and Thomas, with Justice Alito joining them in dissent. The dissenters stressed the need for deference to Congress and would have upheld the discriminatory provision of the Defense of Marriage Act.
So on Tuesday, the conservative justices rejected deference to Congress, while the liberals urged it. And on Wednesday, the liberals rejected deference to Congress, while the conservatives embraced it. Only Justice Kennedy was in the majority in both cases.
The lesson from these cases – like Skrmetti and Mahmoud – is that sometimes conservative justices want to defer to the political process and sometimes liberal justices want to defer. They just disagree about when.
We should not believe that this is in any way about judicial methodology. That explains the outcome in none of these cases. For all the attention paid to constitutional theory in the last sixty years, it has nothing to do with these decisions. Rather, the results are entirely about the values and views of the justices. Skrmetti and Mahmoud only can be understood as the justices, whether liberal or conservative, taking sides in the culture wars. The opinions they wrote provide justifications for their positions for the parties, for the public, for lower courts, and for the future. But it is just very smart justices and law clerks developing arguments, post hoc, to support their conclusions.
This is certainly not a new or original insight. Many have expressed this in one way or another. Thirty-six years ago, <a href="https://www.jstor.org/stable/1341408">in writing about October Term 1988 for the Harvard Foreword</a>, I concluded: “In other words, constitutional law, now and always, is about values . . . Ultimately, the decisions must be defended or criticized for the value choices the Court made. There is nothing else.”
And yet, as I have read and listened to discussions of the court’s decisions in cases like Skrmetti and Mahmoud, there is the attempt to make them seem based on something other than how the justices have chosen sides in the divisive issues of the culture wars. If Hillary Clinton had won in 2016 and picked three justices, rather than Donald Trump, these cases, as well as a host of others, would have surely been decided differently.
We all know this. We should stop pretending otherwise.
The post <a href="https://www.scotusblog.com/2025/07/judicial-deference/">Judicial Deference?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">530148</post-id> </item>
<item>
<title>The Ten Commandments return to classrooms: What will the Supreme Court do?</title>
<link>https://www.scotusblog.com/2025/07/the-ten-commandments-return-to-classrooms-what-will-the-supreme-court-do/</link>
<dc:creator><![CDATA[Kelsey Dallas]]></dc:creator>
<pubDate>Tue, 15 Jul 2025 13:25:01 +0000</pubDate>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Potential Merits Cases]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530140</guid>
<description><![CDATA[Texas recently became the third state in two years, following Louisiana and Arkansas, to pass a law requiring Ten Commandments displays in public school classrooms. Soon after — like the […]
The post <a href="https://www.scotusblog.com/2025/07/the-ten-commandments-return-to-classrooms-what-will-the-supreme-court-do/">The Ten Commandments return to classrooms: What will the Supreme Court do?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
Texas recently became the third state in two years, following Louisiana and Arkansas, to pass <a href="https://capitol.texas.gov/tlodocs/89R/billtext/pdf/SB00010F.pdf#navpanes=0">a law</a> requiring Ten Commandments displays in public school classrooms. Soon after — like the other states that had passed such a law — it was sued over this policy.

Like the complaints filed already in Louisiana and Arkansas, <a href="https://assets.aclu.org/live/uploads/2025/07/Texas-Ten-Commandments-Complaint-FILED.pdf">the lawsuit</a> against Texas’ Ten Commandments statute was brought by a group of families from multiple religious backgrounds who believe that the law violates the First Amendment. According to the families, students in classrooms with the Ten Commandments posters “will be forcibly subjected to scriptural dictates, day in and day out,” a situation that violates “the fundamental religious-freedom principles that animated the Founding of our nation.”
The Texas challengers, as well as the families in Arkansas and Louisiana, drew on a case from 1980, <a href="https://supreme.justia.com/cases/federal/us/449/39/">Stone v. Graham</a>, in which the Supreme Court ruled, in an unsigned decision, that a Kentucky statute requiring a copy of the Ten Commandments to be hung in every public school classroom violated the establishment clause.
Since the current battles would seem resolved by Stone, it may appear puzzling why the three states bothered passing their Ten Commandments laws in the first place, let alone defending them in court. But the foundations for that previous ruling have cracked, and it’s unclear what today’s court will do given the changed landscape.  
The 5-4 opinion in Stone v. Graham centered on what’s known as the Lemon test, which came from a 1971 ruling, <a href="https://supreme.justia.com/cases/federal/us/403/602/">Lemon v. Kurtzman</a>, which considered how to determine whether a state statute violates the establishment clause.
In that case, the court outlined a three-part test. First, a statute had to be found to have a secular purpose. Second, the statute could not promote or restrict religious beliefs or practices. And third, the statute could not foster excessive church-state entanglement (an admittedly nebulous standard).
In Stone, the majority determined Kentucky’s law violated the first prong, since the “preeminent purpose of posting the Ten Commandments” was “plainly religious in nature,” even if Kentucky lawmakers claimed they were celebrating the Ten Commandments’ historical, rather than religious, value.  
As the court wrote: “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular material, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.”
In the 45 years since that decision was released, the content of the Ten Commandments (obviously) hasn’t changed, but the Supreme Court’s approach to the establishment clause has.
In the 2022 case of <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Kennedy v. Bremerton School District</a>, the court ruled that a school district in Washington state had violated the First Amendment rights of a football coach when it suspended him for praying on the field after games, often with students. In reaching that conclusion, the majority rejected the school district’s contention that it had to suspend him to avoid violating the establishment clause. In a 6-3 opinion, the court officially <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">cast aside the Lemon test</a> (once described by Justice Antonin Scalia as resembling <a href="https://www.law.cornell.edu/supct/html/91-2024.ZC.html">“some ghoul in a late night horror movie”</a>) and instructed judges to consider history and “the understanding of the Founding Fathers” when weighing establishment clause questions, instead of balancing the interests in play as prescribed by the Lemon test.
Since Stone relied on the Lemon test, and the Lemon test has now been essentially abrogated, it is uncertain what the Supreme Court will do if and when it weighs in on these latest challenges to displaying the Ten Commandments in public school classrooms.
Nevertheless, the lower courts have offered some possible clues. For example, in a <a href="https://becketnewsite.s3.amazonaws.com/20250623094526/Roake-v-Brumley-Opinion.pdf">June ruling</a>, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit (perhaps the most conservative circuit court in the country) upheld a district court order putting the Louisiana’s Ten Commandments law on hold. The 5th Circuit made clear that, although the Stone ruling had been undermined, “it is the Supreme Court’s ‘prerogative alone to overrule one of its precedents.’”
State officials subsequently filed a<a href="https://becketnewsite.s3.amazonaws.com/20250626145142/Roake-En-Banc-Petition.pdf"> petition</a> for the full 5th Circuit to rehear the case, arguing that the panel had wrongly subjected Louisiana’s law “to a Lemon analysis.” Louisiana officials further pointed to a conflict among the lower courts over how to assess potential establishment clause violations now that the Lemon test has been officially discarded in hopes of convincing the 5th Circuit to grant rehearing. This request is still pending.
Proponents of Ten Commandments in public schools are optimistic that, with the Lemon test relegated to the dustbin of history, their cause may well prevail. And this optimism feels especially reasonable if the court decides to adopt the reasoning of one of the two other Supreme Court rulings on the Ten Commandments, which were released on the same day in 2005.
In <a href="https://supreme.justia.com/cases/federal/us/545/844/">McCreary County v. ACLU of Kentucky</a>, decided 5-4 in an opinion written by Justice David Souter, the court barred two counties in Kentucky from displaying the Ten Commandments in their courthouses in an opinion that featured the same kind of purpose-focused analysis used in Lemon and Stone. Specifically, the court determined that these displays did not serve a primarily secular purpose (even if government officials said they did) and defended the use of the Lemon test in such establishment clause cases.
With the Lemon test now dead, the reasoning in McCreary County would appear to be so as well. Thus, today’s court is more likely to draw on the other 2005 case, <a href="https://supreme.justia.com/cases/federal/us/545/677/">Van Orden v. Perry</a>, in which a majority of the justices, after openly setting aside the Lemon test, allowed a Ten Commandments display at the Texas State Capitol to remain standing precisely because they felt it appropriately acknowledged the Ten Commandments’ historical significance to the United States.
The court, in an opinion by then-Chief Justice William Rehnquist, acknowledged that “the Ten Commandments are religious—they were so viewed at their inception and so remain. The monument, therefore, has religious significance. … But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”
In his <a href="https://supreme.justia.com/cases/federal/us/545/677/">concurring opinion</a>, Justice Stephen Breyer wrote that the display of the Ten Commandments in public schools must clear a higher legal bar “given the impressionability of the young,” but said that the establishment clause does not justify a blanket ban on such displays in public spaces.
“To reach a contrary conclusion here, based primarily upon the religious nature of the tablets’ text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions,” he wrote.
So where does this leave us? Given the 6-3 conservative majority, along with the death of the Lemon test, it seems entirely possible that the court could uphold the legality of the Ten Commandments in public schools. At the same time, the more cautious jurisprudence of Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett may result in a narrower holding, although it is difficult to imagine what such a holding might entail. In any event, one thing is clear: the outcome of these cases is certainly not set in stone.
The post <a href="https://www.scotusblog.com/2025/07/the-ten-commandments-return-to-classrooms-what-will-the-supreme-court-do/">The Ten Commandments return to classrooms: What will the Supreme Court do?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">530140</post-id> </item>
<item>
<title>The morning read for Tuesday, July 15</title>
<link>https://www.scotusblog.com/2025/07/the-morning-read-for-tuesday-july-15/</link>
<dc:creator><![CDATA[Zachary Shemtob]]></dc:creator>
<pubDate>Tue, 15 Jul 2025 13:00:00 +0000</pubDate>
<category><![CDATA[Round-up]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530136</guid>
<description><![CDATA[Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Tuesday morning read:
The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-tuesday-july-15/">The morning read for Tuesday, July 15</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Tuesday morning read:
<ul class="wp-block-list">
<li><a href="https://www.cnn.com/2025/07/14/health/hhs-layoffs-supreme-court">HHS carries out mass firings across health agencies after Supreme Court decision</a> (Rene Marsh, Meg Tirrell, and Tami Luhby, CNN) </li>
<li><a href="https://www.lawfaremedia.org/article/what-to-make-of-the-justice-department-s-denaturalization-initiative">What to Make of the Justice Department’s Denaturalization Initiative</a> (Eric Columbus, Lawfare)</li>
<li><a href="https://www.foxnews.com/politics/doj-rejects-ghislaine-maxwells-appeal-scotus-response">DOJ rejects Ghislaine Maxwell’s appeal in SCOTUS response</a> (Ashley Oliver, Fox News)</li>
<li><a href="https://theweek.com/politics/supreme-court-ceding-power-trump">Supreme Court: Ceding more power to Trump?</a> (The Week) </li>
<li><a href="https://www.vox.com/scotus/419751/supreme-court-mcmahon-new-york-trump-mass-firings-education">The Supreme Court just handed Trump the biggest victory of his second term, in McMahon v. New York</a> (Ian Millhiser, Vox) </li>
</ul>





The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-tuesday-july-15/">The morning read for Tuesday, July 15</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">530136</post-id> </item>
<item>
<title>Supreme Court clears the way for Trump administration to massively reduce the size of the Department of Education</title>
<link>https://www.scotusblog.com/2025/07/supreme-court-clears-the-way-for-trump-administration-to-massively-reduce-the-size-of-the-department-of-education/</link>
<dc:creator><![CDATA[Amy Howe]]></dc:creator>
<pubDate>Mon, 14 Jul 2025 20:26:32 +0000</pubDate>
<category><![CDATA[Emergency appeals and applications]]></category>
<category><![CDATA[Featured]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530129</guid>
<description><![CDATA[The Supreme Court on Monday granted the Trump administration’s request to temporarily pause an order by a federal judge in Massachusetts that would require the Department of Education to reinstate […]
The post <a href="https://www.scotusblog.com/2025/07/supreme-court-clears-the-way-for-trump-administration-to-massively-reduce-the-size-of-the-department-of-education/">Supreme Court clears the way for Trump administration to massively reduce the size of the Department of Education</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
The Supreme Court on Monday granted the Trump administration’s request to temporarily pause an order by a federal judge in Massachusetts that would require the Department of Education to reinstate nearly 1,400 employees who were fired earlier this year as part of the department’s efforts to reduce the size of its workforce. <a href="https://www.supremecourt.gov/opinions/24pdf/24a1203_pol1.pdf">In a brief unsigned ruling</a>, the justices blocked the order issued in May by U.S. District Judge Myong Joun, who had concluded that the Trump administration’s “true intention is to effectively dismantle the Department” even though in his view it lacked the power to do so.

Justice Sonia Sotomayor dissented, in a 19-page opinion that was joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor called the court’s decision “indefensible,” writing that it “hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority,” she said, “is either willfully blind to the implications of its ruling or naïve, but either way the threat to our Constitution’s separation of powers is grave.”
The court’s order came in a dispute that began shortly after the department’s <a href="https://www.ed.gov/about/news/press-release/us-department-of-education-initiates-reduction-force">March 11 announcement</a> of a reduction in force involving 1,378 employees. Secretary of Education Linda McMahon said in a press release that the RIF “reflects the Department of Education’s commitment to efficiency, accountability, and ensuring that resources are directed where they matter most: to students, parents, and teachers.”
In an <a href="https://www.federalregister.gov/documents/2025/03/25/2025-05213/improving-education-outcomes-by-empowering-parents-states-and-communities">executive order</a> issued nine days later, President Donald Trump instructed McMahon to “take all necessary steps to facilitate the closure” of the department. On March 21, he announced that programs for students with special needs and the federal student loan portfolio would be transferred from the Department of Education to the Department of Health and Human Services and the Small Business Administration, respectively.
The plaintiffs – a group of 19 states led by New York, as well as the District of Columbia, two public school districts, and teachers’ unions – went to federal court in Massachusetts, arguing that the RIF violated both the Constitution and the federal laws governing administrative agencies.
On May 22, Joun barred the Trump administration from implementing the RIF announced on March 11, ordered the department to bring back any employees who had been terminated as a result of that RIF, and prohibited the government from moving the student loans and special needs programs to other agencies within the government. Joun wrote that the “massive” RIFS have “made it effectively impossible for the Department to carry out” its obligations under federal law.
The Trump administration came to the Supreme Court on June 6, asking the justices to intervene and put Joun’s order on hold. U.S. Solicitor General D. John Sauer <a href="https://www.scotusblog.com/2025/06/trump-asks-supreme-court-to-pause-order-reinstating-department-of-education-employees/">contended</a> that Joun “is attempting to prevent” the department “from restructuring its workforce, despite lacking” the power to do so “several times over.” And more broadly, Sauer argued, Joun’s order “epitomizes many of the same errors in recent district-court injunctions usurping control of the federal workforce.”
The school districts and unions <a href="https://www.scotusblog.com/2025/06/groups-urge-supreme-court-to-leave-order-in-place-reinstating-department-of-education-employees/">countered</a> that “[i]f the dismantling of the Department is allowed to go forward now” “it will be effectively impossible to undo much of the damage caused.” But if the government eventually prevails, they emphasized, it can “put its plans into operation merely slightly later than otherwise.”
The states added that although the department is allowed to reduce the number of employees in its workforce “if such reduction does not prevent the Department from performing its statutory duties,” it cannot “curtail all relief to the States without identifying any alternative approach to the States’ injuries,” which include the decreased “ability of public colleges and universities to meet enrollment goals and provide academic programs” as a result of major cuts in the department staff who “review the certification and recertification of higher education institutions for federal student aid.”
Nearly one month later, the court finally acted on the Trump administration’s request, issuing a brief unsigned order that did not provide any explanation for the majority’s decision.
In her dissent, Sotomayor emphasized that, until this year, “Presidents have recognized they lack the unilateral authority to eradicate a Department that Congress has tasked with fulfilling statutory duties.” But President Donald Trump, she said, “has made clear that he intends to close the Department without Congress’s involvement.”
In its briefs at the Supreme Court, Sotomayor continued, “the Government does not defend the lawfulness of its actions” but instead “presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief” – none of which, she said, “justifies this Court’s intervention.”
Putting Joun’s order on hold, Sotomayor contended, “will unleash untold harm, delaying or denying educational opportunities and leaving students to suffer from discrimination, sexual assault, and other civil rights violations without the federal resources Congress intended. The majority apparently deems it more important to free the Government from paying employees it had no right to fire than to avert these very real harms while the litigation continues.”
The post <a href="https://www.scotusblog.com/2025/07/supreme-court-clears-the-way-for-trump-administration-to-massively-reduce-the-size-of-the-department-of-education/">Supreme Court clears the way for Trump administration to massively reduce the size of the Department of Education</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">530129</post-id> </item>
<item>
<title>Expertise after Chevron: A potentially pyrrhic victory on executive control over preventive care</title>
<link>https://www.scotusblog.com/2025/07/expertise-after-chevron-a-potentially-pyrrhic-victory-on-executive-control-over-preventive-care/</link>
<dc:creator><![CDATA[Abbe R. Gluck]]></dc:creator>
<pubDate>Mon, 14 Jul 2025 14:17:43 +0000</pubDate>
<category><![CDATA[Featured]]></category>
<category><![CDATA[Term in Review]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530117</guid>
<description><![CDATA[This is part of SCOTUSblog’s term in review series, in which scholars analyze some of the most significant cases of the 2024-25 Supreme Court term. With so much going on, […]
The post <a href="https://www.scotusblog.com/2025/07/expertise-after-chevron-a-potentially-pyrrhic-victory-on-executive-control-over-preventive-care/">Expertise after Chevron: A potentially pyrrhic victory on executive control over preventive care</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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This is part of SCOTUSblog’s <a href="https://www.scotusblog.com/category/term-in-review/">term in review</a> series, in which scholars analyze some of the most significant cases of the 2024-25 Supreme Court term. 
With so much going on, it might have been easy to miss that the Affordable Care Act made its eighth major trip to the Supreme Court this term. At issue were the cost-free preventive services that the ACA guarantees to more than 150 million Americans buying health insurance in the market or from their employer. Once again, the ACA proved resilient and survived the challenge, but the latest win is a potentially pyrrhic one for those who prefer that medical decisions remain in the hands of experts, not politicians.

The case, <a href="https://www.supremecourt.gov/opinions/24pdf/24-316_869d.pdf">Kennedy v. Braidwood Management</a>, turned on a combination of constitutional analysis, statutory interpretation, and the broader question of how the court will grapple with questions of expertise in the wake of its 2024 decision overruling Chevron v. Natural Resources Defense Council, the key agency-deference case of the modern era.
As an initial matter, contrary to some commentary, the battle at the Supreme Court was not about PrEP, the HIV-preventing medication, nor was its potential impact limited to those at risk for HIV. Rather, the case was about coverage of some 200 services ranging from vaccines to heart medication, cancer and diabetes screening, and more – and so implicated the health care of people of all ages and walks of life.
To be sure, the case did begin as an attack on one medication for one demographic. It was brought by religious individuals and businesses who objected to their health plans covering PrEP. (They argued that providing coverage implied approval of same-sex sexual activity.) The district court ruled for the plaintiffs on their religious freedom claims, but that portion of the case was not appealed. As a result, it’s for another day how the Supreme Court will balance such claims against the ACA’s core philosophy that everyone deserves coverage, no matter your age, gender, predisposition to disease, or how you spend your time. The ACA largely did away with a long history of discrimination in health care based on identity, and its guarantee of free access (i.e., no out-of-pocket expense) to preventive care was part of that.
The question before the court was much broader – namely, the legitimacy of the entire apparatus for how the ACA’s preventive care services are approved by scientific experts. The specific challenge was under the Constitution’s appointments clause: Were the members of one of the three entities charged with deciding which preventive services have bases in evidence – a task force that had approved dozens of services since the ACA’s enactment in 2010 – “principal officers” of the United States who should have been confirmed by the Senate? The Biden administration had argued that the HHS secretary has ultimate control over whether to appoint and fire the task force members and also when, if ever, to implement their recommendations, and so they were only “inferior officers.” The Trump administration took up the same argument, and that’s what carried the day.
But this winning strategy was a calculated risk from the perspective of health policy. By doubling down on the secretary’s control in order to protect the preventive care structure from possible constitutional invalidity, the Biden administration’s litigating position constructed the pedestal on which the current HHS secretary, Robert F. Kennedy, Jr. – known for his controversial views on many aspects of health policy, including vaccines – now stands. Indeed, just prior to the Braidwood decision, Secretary Kennedy fired all 17 members of the advisory council charged with making determinations about vaccine coverage. And Justice Brett Kavanaugh’s ensuing opinion for the court, joined by all but Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, repeatedly emphasized that the secretary’s power to hire and fire at will “provides the Secretary with a means of ensuring that no recommendation that he disapproves will take effect.”
The critical question now is thus one about deference to scientific expertise, and how the court now sees that question after <a href="https://www.scotusblog.com/2024/06/supreme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/">overruling</a> Chevron last year. Even as Braidwood gives the secretary such control, will rational, evidence-based decision-making still be required? Just days ago, right after Braidwood came down, Secretary Kennedy postponed a long-scheduled meeting of the task force at issue in the case – which, among other things, had on its agenda preventive services for heart disease – the same action he took before he fired all the members of the vaccine task force, prompting fears this one will be next.
The ACA <a href="https://www.law.cornell.edu/uscode/text/42/299b-4">requires</a> that task force members and their recommendations be “independent and, to the extent practicable, not subject to political pressure.” Yet Kavanaugh’s opinion interprets this language to mean only that “Task Force members must not be unduly influenced by their outside affiliations” with universities and other employers, and says nothing about their need to exercise independent, evidence-based scientific judgment in selecting the services to be covered, consistent with both the ACA’s directive and the requirement of reasoned decision-making under the Administrative Procedure Act.
At a moment when the recently passed budget legislation is predicted to cause some 17 million people to lose their health insurance over the next decade, the opinion thus offers both relief and anxiety. There’s relief because access to preventive care is preserved, but also anxiety because it is not clear on what basis that care could be taken away in the future, and whether political preferences will be given more weight than scientific evidence. 
Any decisions without scientific bases seem likely to face challenges as arbitrary and capricious under the APA. Indeed, one such challenge – to the newly constituted vaccine committees’ recommendation that the COVID-19 vaccine for healthy children and healthy pregnant women be removed from the CDC-recommended immunization schedules – <a href="https://downloads.aap.org/AAP/PDF/FiledSuit.pdf?_gl=1*d9u6yb*_ga*MzQ4MDI4MjI0LjE3NTE5MTMxMTI.*_ga_FD9D3XZVQQ*czE3NTE5MTMxMTIkbzEkZzAkdDE3NTE5MTMxMTIkajYwJGwwJGgw">was just filed</a>.
For statutory interpretation aficionados, the opinion also offers a window onto Kavanaugh’s preferred approach as well as an early glimpse of how the court is going to engage with agency expertise in the post-Chevron era. Kavanaugh’s opinion heavily relies on one of his favorite interpretive presumptions – namely, the idea that when Congress illustrates elsewhere in the U.S. Code that it knows how to make something explicit, courts should not infer the same thing elsewhere – to justify the secretary’s at-will removal power. Kavanaugh notes that Congress has been explicit when it wishes to limit removal power to for-cause and references a need for “very clear and explicit language.” It’s always worth pausing to note when the court implies that special “magic words” are required for Congress to do something, because it almost always makes that something harder (here, limiting executive control over agency officials).
Kavanaugh also relies on the canon of constitutional avoidance to construe the ACA’s requirement of independence as not undermining the secretary’s authority, and even utilizes both dictionaries from the 19th century and legislative history from 1966 (yes, some textualists still cite legislative history!) to connect the secretary’s power to “convene” the task force to his power to appoint (a point strengthened by yet another reference to the “Congress-has-shown-us-it-knows-how-to-do-this explicitly” canon). In other words, a little something for everyone.
Finally, for good measure, the opinion concludes with a touch of implicit Skidmore deference, the pre-Chevron deference regime under which courts give weight to agency interpretations, especially consistent ones, but only to the extent they have the “power to persuade.” Citing <a href="https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf">Loper Bright Enterprises v. Raimondo</a>, the decision that overruled Chevron, Justice Kavanaugh noted, “the Executive Branch’s actions for the last 26 years … have reflected that straightforward interpretation of the statute—without any apparent objection from Congress … to ‘convene’ the Task Force to include the power to appoint the Task Force members. That considered and consistent Executive Branch practice … buttresses the ordinary meaning and natural interpretation of the term ‘convene’ in the statute.”
This methodology thus follows a trend that has emerged in several other cases this term as the court resets after Loper Bright: The court now insists, in what many view as a revival of Skidmore, that it is construing the statute independently but looks to a consistent agency interpretation as evidence of the correctness of that interpretation. 
In short, Braidwood is an opinion that, to the relief of many, saves the ACA once again. But it leaves open critical questions about the future of respect for scientific expertise and how those questions will inevitably be litigated.
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The post <a href="https://www.scotusblog.com/2025/07/expertise-after-chevron-a-potentially-pyrrhic-victory-on-executive-control-over-preventive-care/">Expertise after Chevron: A potentially pyrrhic victory on executive control over preventive care</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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<post-id xmlns="com-wordpress:feed-additions:1">530117</post-id> </item>
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<title>The morning read for Monday, July 14</title>
<link>https://www.scotusblog.com/2025/07/the-morning-read-for-monday-july-14/</link>
<dc:creator><![CDATA[Zachary Shemtob]]></dc:creator>
<pubDate>Mon, 14 Jul 2025 13:00:00 +0000</pubDate>
<category><![CDATA[Round-up]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530114</guid>
<description><![CDATA[Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Monday morning read:
The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-monday-july-14/">The morning read for Monday, July 14</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Monday morning read:
<ul class="wp-block-list">
<li><a href="https://www.axios.com/2025/07/13/federal-workers-rif">Federal workers face mass firings this summer after Supreme Court ruling</a> (Emily Peck, Axios) </li>
<li><a href="https://www.usatoday.com/story/news/politics/2025/07/11/supreme-court-decisions-conservatives-liberal/84535774007/">How some Supreme Court decisions fractured the conservative supermajority</a> (Maureen Groppe, USA Today) </li>
<li><a href="https://abcnews.go.com/US/wireStory/muslim-inmate-won-us-supreme-court-beard-case-123691239">Muslim inmate who won US Supreme Court beard case claims retaliatory transfer by Arkansas officials</a> (Andrew DeMillo, ABC News) </li>
<li><a href="https://www.nationalreview.com/2025/07/supreme-court-reiterates-judges-dont-run-the-executive-branch/">Supreme Court Reiterates: Judges Don’t Run the Executive Branch</a> (Andrew C. McCarthy, National Review) </li>
<li><a href="https://www.nytimes.com/2025/07/12/us/politics/birthright-citizenship-class-action.html">Trump’s Birthright Citizenship Ban Faces New Peril: Class Actions</a> (Adam Liptak, The New York Times) </li>
</ul>



The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-monday-july-14/">The morning read for Monday, July 14</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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<post-id xmlns="com-wordpress:feed-additions:1">530114</post-id> </item>
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<title>Federal employees urge Supreme Court to keep order in place preventing their firing</title>
<link>https://www.scotusblog.com/2025/07/federal-employees-urge-supreme-court-to-keep-order-in-place-preventing-their-firing/</link>
<dc:creator><![CDATA[Amy Howe]]></dc:creator>
<pubDate>Fri, 11 Jul 2025 20:33:20 +0000</pubDate>
<category><![CDATA[Emergency appeals and applications]]></category>
<category><![CDATA[Featured]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530102</guid>
<description><![CDATA[Three members of the Consumer Product Safety Commission who were fired by President Donald Trump in May urged the Supreme Court on Friday to leave in place an order by […]
The post <a href="https://www.scotusblog.com/2025/07/federal-employees-urge-supreme-court-to-keep-order-in-place-preventing-their-firing/">Federal employees urge Supreme Court to keep order in place preventing their firing</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
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Three members of the Consumer Product Safety Commission who were fired by President Donald Trump in May <a href="https://www.supremecourt.gov/DocketPDF/25/25A11/365025/20250711145833614_2025.7.11%20Opposition%20to%20Stay%20Application.pdf">urged</a> the Supreme Court on Friday to leave in place an order by a federal judge in Maryland that required the Trump administration to reinstate them to their jobs. Mary Boyle, Alexander Hoehn-Saric, and Richard Trumka, all of whom were appointed to the commission by then-President Joe Biden, told the justices that although the federal government attempted “to paint a picture of chaos at the agency” in its own Supreme Court filing, it instead “simply describe[d] the Commissioners performing official functions that the district court held they were lawfully entitled to perform and, in some instances, undoing actions that the CPSC unlawfully took without a quorum.”

Established more than a half-century ago, the CPSC <a href="https://www.cpsc.gov/About-CPSC">describes its mission</a> as working “to save lives and keep families safe by reducing the unreasonable risk of injuries associated with consumer products.” It has five commissioners, no more than three of whom “may be affiliated with the same political party,” and the president can remove a commissioner only “for neglect of duty or malfeasance in office but for no other cause.”
On May 8, Boyle and Trumka received emails from the White House informing them that they had been fired. Hoehn-Saric learned the next day from the CPSC chair, Peter Feldman, that he would also be fired.
At <a href="https://rollcall.com/factbase/trump/transcript/donald-trump-press-conference-briefing-karoline-leavitt-may-9-2025/">a White House briefing</a> on May 9, press secretary Karoline Leavitt responded to questions about the firings by telling reporters that Trump “has the right to fire people within the executive branch. It’s a pretty simple answer.”
The three commissioners went to federal court, where they argued that Trump’s attempt to fire them without good cause violated the law.
U.S. District Judge Matthew Maddox agreed and ordered the Trump administration to reinstate them. He relied on the Supreme Court’s 1935 decision in <a href="https://supreme.justia.com/cases/federal/us/295/602/">Humphrey’s Executor</a>, which carved out an exception to the general principle that the president can fire subordinates for any reason and held that Congress can create independent, multi-member regulatory agencies whose commissioners can only be removed for cause.
After the U.S. Court of Appeals for the 4th Circuit rejected the government’s request to temporarily freeze Maddox’s order, U.S. Solicitor General D. John Sauer came to the Supreme Court on July 2, asking the justices to intervene. He argued that a ruling by the Supreme Court in late May allowing Trump to fire members of two other multi-member agencies, the National Labor Relations Board and the Merit Systems Protection Board, should govern this case and permit the CPSC firings, as well. Maddox’s ruling, Sauer contended, “has sown chaos and dysfunction at the Consumer Product Safety Commission.”
Sauer also sought an administrative stay – that is, an order from the Supreme Court pausing Maddox’s order while the justices considered the administration’s bid to freeze it going forward. The justices have not acted on that request.
In their filing on Friday afternoon, the three commissioners told the justices that the relief that the government seeks – clearing the way for the Trump administration to remove them – would “disrupt the status quo.” They noted that they served in their jobs for four months without any complaints before Trump attempted to fire them, and that they have been back at work since June 13, but the government did not come to the Supreme Court for nearly two weeks after the 4th Circuit declined to act on its request for an administrative stay. That “lack of urgency reflects,” they concluded, the government’s “lack of irreparable harm” from leaving them in their jobs.
The commissioners also resisted the government’s efforts to rely on the court’s rulings in the cases involving members of the NLRB and the MSPB. In this case, they stressed, Maddox ruled that the “structure and function” of the CPSC “‘closely resemble[]’ those of the agency described in Humphrey’s Executor and that the CPSC’s statutory tenure protections, like those upheld in Humphrey’s Executor, “are accordingly constitutional” – the same conclusion, they observed, reached by the U.S. Courts of Appeals for the 5th and 10th Circuits.
Finally, the commissioners urged the justices to deny the Trump administration’s request to grant review of Maddox’s ruling before the 4th Circuit has a chance to weigh in. Emphasizing that such grants are “extremely rare,” the commissioners reiterated that the court had declined a similar appeal in the cases involving the NLRB and MSPB commissioners. “The only subsequent development that the government identifies,” they wrote, “is that courts have continued to resolve challenges to allegedly unlawful terminations on the basis of existing law.”
The post <a href="https://www.scotusblog.com/2025/07/federal-employees-urge-supreme-court-to-keep-order-in-place-preventing-their-firing/">Federal employees urge Supreme Court to keep order in place preventing their firing</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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<post-id xmlns="com-wordpress:feed-additions:1">530102</post-id> </item>
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<title>The morning read for Friday, July 11</title>
<link>https://www.scotusblog.com/2025/07/the-morning-read-for-friday-july-11/</link>
<dc:creator><![CDATA[Zachary Shemtob]]></dc:creator>
<pubDate>Fri, 11 Jul 2025 13:00:00 +0000</pubDate>
<category><![CDATA[Round-up]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530100</guid>
<description><![CDATA[Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Friday morning read:
The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-friday-july-11/">The morning read for Friday, July 11</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
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Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Friday morning read:
<ul class="wp-block-list">
<li><a href="https://www.cnn.com/2025/07/10/politics/birthright-citizenship-hearing-rhode-island">Federal judge issues new nationwide block against Trump’s order seeking to end birthright citizenship</a> (Devan Cole and John Fritze, CNN)</li>
<li><a href="https://www.cbsnews.com/news/supreme-court-justice-ketanji-brown-jackson-state-of-democracy/">Supreme Court Justice Ketanji Brown Jackson says she worries about state of democracy</a> (Jan Crawford and Caitlin Yilek, CBS News)</li>
<li><a href="https://www.deseret.com/politics/2025/07/10/mike-lee-urges-supreme-court-hear-religious-freedom-football-case/">Mike Lee wants Supreme Court to take case involving prayer at a high school football game</a> (Lauren Irwin, Deseret News) </li>
<li><a href="https://www.nationalreview.com/bench-memos/defense-of-the-constitution-and-judicial-modesty-win-the-term/">Defense of the Constitution and Judicial Modesty Win the Term</a> (Carrie Campbell Severino, National Review) </li>
<li><a href="https://slate.com/news-and-politics/2025/07/greatest-supreme-court-justice-essay-no-kings.html">A Supreme Court Justice Wrote the Greatest “No Kings” Essay in History</a> (Gerard N. Magliocca, Slate) </li>
</ul>



The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-friday-july-11/">The morning read for Friday, July 11</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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<post-id xmlns="com-wordpress:feed-additions:1">530100</post-id> </item>
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<title>Whose irreparable harm?</title>
<link>https://www.scotusblog.com/2025/07/whose-irreparable-harm/</link>
<dc:creator><![CDATA[Carolyn Shapiro]]></dc:creator>
<pubDate>Thu, 10 Jul 2025 13:35:05 +0000</pubDate>
<category><![CDATA[Cases and Controversies]]></category>
<category><![CDATA[Recurring Columns]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530092</guid>
<description><![CDATA[Cases and Controversies is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and […]
The post <a href="https://www.scotusblog.com/2025/07/whose-irreparable-harm/">Whose irreparable harm?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
<a href="https://www.scotusblog.com/category/cases-and-controversies/">Cases and Controversies</a> is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and on our constitutional democracy more generally.
Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.
In <a href="https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf">Trump v. CASA</a>, the Supreme Court announced that federal courts do not have the authority, under the Judiciary Act of 1789, to issue injunctions that prevent defendants from engaging in actions related to non-parties, even if those actions are illegal or unconstitutional. As <a href="https://www.scotusblog.com/2025/07/trump-v-casa-and-the-future-of-the-universal-injunction/">others have</a> <a href="https://www.stevevladeck.com/p/162-what-does-the-birthright-citizenship">pointed out</a>, the practical consequences of the holding are unclear. The court described several mechanisms that might lead to comparably broad injunctive relief, including class actions, cases seeking to “set aside agency action” under the Administrative Procedure Act, and court orders that provide relief to third parties as an incidental but necessary part of providing “complete relief” to the plaintiffs. So litigation will continue along these fronts, including in the birthright citizenship cases themselves. (The lower courts all found that the <a href="https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/">executive order</a> purporting to narrow birthright citizenship was likely unconstitutional, holdings that the Supreme Court did not address.)

But I have seen little written on the majority opinion’s discussion of what the government must show to obtain a stay of an injunction. Alarmingly, the CASA opinion seems to confirm what <a href="https://www.supremecourt.gov/opinions/24pdf/24a1063_6j37.pdf">Justice Ketanji Brown Jackson</a> <a href="https://www.supremecourt.gov/opinions/24pdf/24a1079_p86b.pdf">has been warning</a>: that the court is holding the government to a different, and much more lenient, standard from all other litigants (including past administrations) who seek a stay of an injunction or judgment, <a href="https://www.scotusblog.com/case-files/emergency/emergency-docket-2024/">whose applications are routinely denied by the court</a>.
As the Supreme Court described in <a href="https://supreme.justia.com/cases/federal/us/556/418/">Nken v. Holder</a>, when deciding whether to grant a stay, courts should consider: “(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” These factors parallel what plaintiffs must show for an injunction to be issued in the first place, including that they will suffer irreparable harm – harm that cannot be remedied by money damages after the fact. The injunction is supposed to preclude that harm while the merits of the case are litigated. And the trial court, just like the Supreme Court, must consider the interests of the opposing party and the public interest more broadly. In all of the cases in which the government is seeking emergency stays, the lower courts have found that these factors favor the plaintiffs.
In the CASA majority opinion, the court provided more explanation than it has in any other case in which it has granted stays sought by the government. Yet Justice Amy Coney Barrett limited consideration of the first prong – the government’s likelihood of success on the merits – to whether it was likely to succeed in showing that universal injunctions are improper. The court simply did not discuss the underlying issue – whether the president can unilaterally announce a new and restricted understanding of birthright citizenship. The court also concluded that because it was remanding for the lower courts to determine the appropriate scope of the injunctions for the plaintiffs to obtain complete relief, the plaintiffs, by definition, would not be harmed by the stay it was issuing. That was the extent of its discussion of the third factor. (The third factor is sometimes called the “balance of equities,” and it can also incorporate factors like the parties’ conduct in the litigation.) Nor did the court expressly consider “where the public interest lies.”
Most notably, however, Barrett disposed of the government’s burden to show irreparable harm in just a couple of sentences: “When a federal court enters a universal injunction against the Government, it ‘improper[ly] intrudes’ on ‘a coordinate branch of the Government’ and prevents the Government from enforcing its policies against nonparties. … That is enough to justify interim relief.”
This logic suggests (although does not say explicitly) that any injunction against the government imposes irreparable harm if it “prevents the Government from enforcing its policies.” Or as Justice Sonia Sotomayor put it, “that the President is harmed, irreparably, whenever he cannot do something he wants to do…”
I am aware of no precedent, however, that supports a conclusion that an injunction that might be overbroad or improper in some way necessarily imposes irreparable harm on the government, which would essentially collapse the irreparable harm inquiry into likelihood of success on the merits. Certainly that is not what the precedent quoted in CASA stands for. The primary case on which the CASA majority relied here is a 1993 <a href="https://www.supremecourt.gov/opinions/in-chambers.aspx">in-chambers opinion</a> by Justice Sandra Day O’Connor with the unwieldy name of <a href="https://supreme.justia.com/cases/federal/us/510/1301/">INS v. Legalization Assistance Project of Los Angeles County Federation of Labor</a>. In that case, O’Connor granted a stay of an injunction imposing limitations and requirements on the government’s implementation of the Immigration Reform and Control Act of 1986. O’Connor determined that the government would likely succeed in showing that the plaintiffs did not have a legal right to sue, known as standing, thus meeting the first Nken prong of likelihood of success on the merits.
But that conclusion alone was not the only reason O’Connor found irreparable harm. She also expressly discussed the “considerable administrative burden” the injunction would impose. As she described it, the injunction “requir[ed] the INS to … identify and adjudicate legalization applications filed by certain classes of immigrants, and temporarily grant certain classes of immigrants stays of deportation and employment authorization.” In contrast, the injunctions in the birthright citizenship cases required the government to do … nothing.
The Supreme Court has never before cited INS in a majority opinion, much less relied on it for such a sweeping position. Before CASA, individual justices had cited INS only four times – in <a href="https://scholar.google.com/scholar_case?case=16024986318091286372&hl=en&as_sdt=6&as_vis=1&oi=scholarr">two</a> <a href="https://supreme.justia.com/cases/federal/us/510/1315/">in-chambers</a> opinions and in one <a href="https://www.supremecourt.gov/opinions/19pdf/20a18_f2qg.pdf">concurrence</a> to and one <a href="https://www.courtlistener.com/opinion/9194647/united-states-v-oakland-cannabis-buyers-cooperative/">dissent</a> from the granting of a stay. Every one of those opinions discussed some kind of harm beyond the restraint on a defendant, governmental or otherwise.
The same is true of the other cases on which the CASA majority relied. In <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep567/usrep567opinion/usrep567opinion.pdf">Maryland v. King</a>, for example, the Maryland high court overturned a rape conviction and held that routinely collecting DNA from those charged with violent crimes violated the Fourth Amendment. Chief Justice John Roberts, in chambers, granted a stay of that judgment. As the CASA majority noted, the chief justice said that “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury,” – but he also discussed specific, “ongoing and concrete harm to Maryland’s law enforcement and public safety interests.” Likewise, in <a href="https://supreme.justia.com/cases/federal/us/424/1301/">Coleman v. Paccar Inc.</a>, Chief Justice William Rehnquist considered the specific harms arising from the delay in implementing a new automobile safety regulation.
The CASA majority’s reliance on <a href="https://supreme.justia.com/cases/federal/us/582/16-1436/#tab-opinion-3752813">Trump v. International Refugee Assistance Project</a> was particularly misplaced. In that case, the first Trump administration asked the court to stay two injunctions of its travel ban on people from several Muslim countries. The court granted partial stays, noting that the government pointed to specific harms, including being unable “to prevent potentially dangerous individuals from entering the United States” and an increased administrative burden on the government if it had to evaluate whether information provided by other countries was adequate without the ban in place.
IRAP also shows just how far the court has moved from the other Nken factors, especially the balance of equities and the public interest. In IRAP, the court narrowed the injunctions so that the travel ban would apply only “to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” In so doing, it expressly balanced the government’s asserted interests with those of the plaintiffs and others like them, and it allowed the injunctions to protect all individuals with the requisite relationships.
So it is puzzling that CASA never addressed the public interest or balance of equities, even as it cited the very page of IRAP that explains that “[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Unlike the Court in IRAP, the CASA majority did not, for example, consider the harms to third parties, like infants who could become stateless and deportable at birth. And because the court refused to engage with the underlying merits of the executive order, it could not meaningfully consider the balance of equities.
One can defend the majority opinion in CASA for not discussing the balance of equities and public interest on the ground that the court remanded for the lower courts to take account of such considerations in crafting new injunctions. But that defense does not apply to CASA’s handling of irreparable harm. In CASA, the court appears to be relying on a new standard for emergency relief for the government, which it also seems to have applied in many of its recent (and largely unexplained) orders on the shadow docket – including, just this week, <a href="https://www.supremecourt.gov/opinions/24pdf/24a1174_h3ci.pdf">Trump v. AFGE</a>.
As Jackson <a href="https://www.supremecourt.gov/opinions/24pdf/24a1063_6j37.pdf">warned</a>, the court in CASA and in other shadow docket cases is “send[ing the] troubling message … that although other stay applicants must point to more than the annoyance of compliance with lower court orders they don’t like, the Government can approach the courtroom bar with nothing more than that and obtain relief from this Court nevertheless.” And it is doing so without actually owning up to it. If the traditional factors to obtain a stay do not apply to the Trump administration, the least the court could do would be to say so and tell us why.

The post <a href="https://www.scotusblog.com/2025/07/whose-irreparable-harm/">Whose irreparable harm?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
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<post-id xmlns="com-wordpress:feed-additions:1">530092</post-id> </item>
<item>
<title>The morning read for Thursday, July 10</title>
<link>https://www.scotusblog.com/2025/07/the-morning-read-for-thursday-july-10/</link>
<dc:creator><![CDATA[Zachary Shemtob]]></dc:creator>
<pubDate>Thu, 10 Jul 2025 13:00:00 +0000</pubDate>
<category><![CDATA[Round-up]]></category>
<guid isPermaLink="false">https://www.scotusblog.com/?p=530088</guid>
<description><![CDATA[Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Thursday morning read:
The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-thursday-july-10/">The morning read for Thursday, July 10</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></description>
<content:encoded><![CDATA[
Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Thursday morning read:
<ul class="wp-block-list">
<li><a href="https://www.politico.com/newsletters/west-wing-playbook-remaking-government/2025/07/09/sprawling-anxiety-hits-federal-workers-00445511">Anxiety floods federal workforce</a> (Erin Schumaker, Ben Johansen, Sophia Cai, and Irie Sentner, Politico) </li>
<li><a href="https://www.cbsnews.com/news/supreme-court-emergency-docket-trump-appeals/">After term jammed with Trump’s appeals, Supreme Court’s emergency docket may stay hot</a> (Melissa Quinn, CBS News) </li>
<li><a href="https://nypost.com/2025/07/09/opinion/supreme-court-ruling-on-trumps-large-scale-firings-is-a-win-for-common-sense-and-democracy/">Supreme Court ruling on Trump’s ‘large-scale’ firings is a win for common sense — and democracy</a> (Editorial Board, The New York Post) </li>
<li><a href="https://www.courthousenews.com/scotus-the-highest-and-only-court/">SCOTUS: The highest (and only) court</a> (Kelsey Reichmann, Courthouse News Service)</li>
<li><a href="https://www.newsweek.com/supreme-court-can-save-womens-sports-opinion-2095572">The Supreme Court Can Save Women’s Sports</a> (Suzanne Beecher, Newsweek) </li>
</ul>



The post <a href="https://www.scotusblog.com/2025/07/the-morning-read-for-thursday-july-10/">The morning read for Thursday, July 10</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.
]]></content:encoded>
<post-id xmlns="com-wordpress:feed-additions:1">530088</post-id> </item>
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