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SCOTUStoday for Thursday, February 5
As we’ve noted many times before, we read a lot of news stories in the process of preparing this newsletter. But we’ve perhaps never seen a headline as memorable as this one: Educator Who Read ‘I Need a New Butt!’ to Students Wins Job Back in Court.
SCOTUS Quick Hits
On Thursday, the Supreme Court denied a request from a group of California Republicans to block the state from using its new map in this year’s elections. There were no public dissents from the court’s ruling. For more on the case, see the On Site section below.
Chief Justice John Roberts is expected to be at George Washington University Law School today to judge the final round of the Van Vleck Constitutional Law Moot Court Competition.
The court could rule at any time on an interim docket case on California’s policies for parental notification when public school students choose to use different pronouns or a different gender identity.
The court has not yet indicated when it will next release opinions. If the court follows its typical pattern, the earliest the next opinion day may be is Friday, Feb. 20, when the justices are next scheduled to be in the courtroom.
The court will next hear arguments on Monday, Feb. 23, the first day of its February sitting.
Morning Reads
First Circuit conflicted about deportations to ‘third-party’ countries (Thomas F. Harrison, Courthouse News Service) — A panel of the U.S. Court of Appeals for the 1st Circuit “telegraphed Tuesday that it’s inclined to give four immigrants additional safeguards against ‘third-country’ deportations,” but signaled that it’s unlikely to extend those protections to all similarly situated immigrants, according to Courthouse News Service. During the argument, the panel wrestled with the Supreme Court’s June decision to pause a district court order preventing immigrants from being deported to “third countries,” that is, countries not specifically identified on their removal orders, without first ensuring that they would not face torture there. “[T]he First Circuit judges repeatedly expressed concern that the immigrants weren’t being given adequate due process. But they also felt constrained by the Supreme Court’s order. … [T]he judges seemed to settle on a narrow jurisdictional argument that would allow them to affirm the injunction for the four individual plaintiffs but not for all other immigrants as a class.”
Judge seems skeptical of legal justification for Pentagon’s punishment of Sen. Mark Kelly (Michael Kunzelman, Associated Press) — U.S. District Judge Richard Leon said on Tuesday “that he knows of no U.S. Supreme Court precedent to justify the Pentagon’s censuring of a sitting U.S. senator who joined a videotaped plea for troops to resist unlawful orders from the Trump administration,” according to the Associated Press. Leon is considering Sen. Mark Kelly’s claim “that Pentagon officials violated his First Amendment free speech rights.” During Tuesday’s hearing, a government attorney “argued that Congress decided that retired military service members are subject to the same Uniform Code of Military Justice that applies to active-duty troops,” while Kelly’s lawyers said that “they aren’t aware of any ruling to support the notion that military retirees have ‘diminished speech rights.'”
Trump’s new ammo to toss hush money case conviction (Zach Schonfeld and Ella Lee, The Hill) — U.S. District Judge Alvin Hellerstein heard argument on Wednesday on President Donald Trump’s effort to move a case on hush money allegations made against him from New York state court to federal court. In state court, a “jury found Trump guilty of 34 counts of falsifying business records when he repaid his then-fixer, Michael Cohen, for a $130,000 hush money payment he made to adult film actress Stormy Daniels before the 2016 election to keep her quiet about a years-old alleged affair with Trump. Trump denies any affair,” according to The Hill. Hellerstein has already twice denied Trump’s push to move the case, but in November, the U.S. Court of Appeals for the 2nd Circuit instructed him to reconsider because it felt he had “bypassed important issues,” such as whether certain evidence used in the trial should have been treated as part of protected official acts. Trump contends that “the verdict was tainted by jurors seeing evidence protected by the Supreme Court’s subsequent presidential immunity ruling and prosecutors’ theory of the case was preempted by federal election law.”
A Legal Tool for Holding ICE Agents to Account, Hiding in Plain Sight (Adam Liptak, The New York Times)(Paywall) — The nationwide debate over the actions of Immigration and Customs Enforcement agents in Minneapolis and other cities has put a spotlight on “a 1987 law review article by a young law professor named Akhil Reed Amar,” according to The New York Times. In the article, Amar, now a leading constitutional scholar and SCOTUSblog contributor, contended “that state legislatures can authorize lawsuits against federal officials for violating the Constitution.” Although states such as California, Maine, Massachusetts, and New Jersey “have enacted laws along the lines that Professor Amar proposed,” these laws are “largely untested.” In an interview with the Times, Amar stood by the idea that “states can provide remedies against federal officials when federal officials violate federal constitutional rights.”
Can AI Argue a Supreme Court Case Better Than a Human Lawyer? (Paul Detrick, Bloomberg Law) — In a new video project, Bloomberg Law explored how lawyers are using generative artificial intelligence and how such AI tools “could shape the future of legal advocacy.” The video features Adam Unikowsky, a partner at Jenner & Block who has experimented with using AI to test his own oral argument skills. Specifically, Unikowsky “fed briefs from one of his [Supreme Court] cases into a large language model and asked the AI to respond to the justices’ questions.” In the video and on his Substack, Unikowsky praised the computer’s performance.
A Closer Look: Taylor v. Singleton
In June 2024, the Supreme Court issued a major ruling on homelessness in a case that asked whether an Oregon city’s restrictions on public camping violate the Eighth Amendment’s ban on cruel and unusual punishment. A 6-3 court held that certain restrictions are permissible where they criminalize behaviors, such as camping, rather than the status of being homeless, and added that the Eighth Amendment generally has been understood to apply to methods of punishment, rather than restrictions on conduct. Writing for the majority, Justice Neil Gorsuch emphasized that homelessness is a challenging and complex issue, and that camping bans are just one of many tools that cities use to address it.
Now, the court has an opportunity to weigh in on a different policy response to homelessness in a case that centers on the First Amendment, rather than the Eighth. In Taylor v. Singleton, the justices have been asked to overturn a decision from the U.S. Court of Appeals for the 11th Circuit holding that Alabama statutes prohibiting “a person … from ‘stand[ing] on a highway’ to ‘solicit[] employment, business, or contributions from the occupant of any vehicle’ unless otherwise authorized” and from “[l]oiter[ing], remain[ing], or wander[ing] about in a public place for the purpose of begging” violate free speech.
Hal Taylor, secretary of the Alabama Law Enforcement Agency, contended in his petition for review that the 11th Circuit’s decision is out-of-step with history and tradition. “Begging was not constitutionally protected at the founding; rather, it was widely criminalized,” he wrote. For that reason, Taylor continued, it’s fair to conclude that begging is among the categories of speech that are “fully outside the protection of the First Amendment,” such as “child pornography.”
The Supreme Court has never before directly addressed whether begging is protected by the First Amendment. According to Taylor, now is the right time to do so, however, because (among other reasons) absent Supreme Court intervention, cities will lose a tool they have come to rely on to promote public safety while working to reduce homelessness.
Jonathan Singleton, who brought the class-action lawsuit against Alabama’s statutes and who is described in court filings as a homeless resident of Montgomery, Alabama who “holds signs in public soliciting help,” initially waived his right to respond to the petition. But in November, the court called for a response. In his brief, Singleton contended that there is not disagreement between the federal courts of appeals or state supreme courts over this issue, a factor that the Supreme Court often looks for when deciding whether to take up a case. “The Eleventh Circuit’s rejection of Petitioner’s argument is consistent with established precedent in every circuit and state supreme court that has considered the issue,” he wrote.
And the Supreme Court itself, Singleton continued, has held that “charitable appeals for funds” are a protected form a speech in a decision striking down certain restrictions on door-to-door or on-the-street requests for donations. “That is precisely the speech that the challenged statutes prohibit,” he wrote.
This petition for review is scheduled to be considered by the justices for the first time at their private conference on Friday, Feb. 20.
SCOTUS Quote
“Judges do not sit on cushions of down while administering the supreme law of the land in this court.”
— Justice Henry Baldwin in Ex parte Crane
On Site
From the SCOTUSblog Team
Supreme Court allows California to use congressional map benefitting Democrats
The Supreme Court on Wednesday afternoon cleared the way for California to use a new congressional map intended to give Democrats five additional seats in the U.S. House of Representatives. In a one-sentence order, the justices turned down a request from a group of California Republicans that would have required the state to continue to use the map in place for the last several federal elections in the state while their challenge to the map moves forward.
There was a surge in executions in 2025. Here’s how the Supreme Court responded.
Forty-seven people were put to death in the United States in 2025, the highest annual execution total since 2009. Several factors led to the surge, including the Trump administration’s embrace of the death penalty, a marked increase in executions in Florida, and the end of some state-level death penalty moratoriums. The Supreme Court also played a role by denying every request to postpone an execution that it fielded in 2025. Here’s a brief overview of those decisions and a look at what may be ahead for the court.
SCOTUS Outside Opinions
The Black Codes must not define America’s fundamental freedoms
In a column for SCOTUSblog, Pete Patterson revisited the oral argument in Wolford v. Lopez, during which Justice Ketanji Brown Jackson questioned whether objections to using Black Codes (laws passed in southern states after the Civil War to prevent newly freed persons from possessing firearms) in order to defend modern gun restrictions signal a problem with the court’s Second Amendment precedent. Patterson contended that “rejecting reliance on the Black Codes is not only consistent with analyzing the history behind a law – it is demanded by it.”
The post SCOTUStoday for Thursday, February 5 appeared first on SCOTUSblog.
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