It is the true definition of love.Read more

The gentle breeze moves across the American flags. The flags ripple, and for a moment the field becomes more than a display. It becomes a reminder that freedom is not free.Read more

It’s summer, it’s hot and the cool blue waters of the Kern River may look inviting, but local officials have a simple message: Stay out, stay alive.Read more

State Sen. Melissa Hurtado, D-Bakersfield, had two jobs to do at a news conference at Meadows Field Airport on Friday.Read more

Yesterday’s decision in M&K Employee Solutions v. Trustees of the IAM National Pension Fund was pretty much exactly what you would have expected given the argument: a brisk rejection of the idea that the Employee Retirement Income Security Act of 1974 obligates actuaries to use out-of-date assumptions when they work on pension plans.The case involves a multiemployer pension plan, a common arrangement in which a group of employers in a particular industry band together, collectively agreeing to provide specifically defined benefits to all covered employees. A natural question under those arrangements is what happens when one employer decides to leave the group. Under ERISA, the departing employer must make a payment to the plan equal to the employer’s share of any benefits attributable to past work that are unfunded, based on an actuary’s calculation “as of” the “measurement date,” the last day of the year before the employer withdraws.Because the calculation necessarily is made after the date of the employer’s withdrawal, but “as of” the “measurement date” in the preceding year, the statute contemplates a gap between the state of contributions and obligations that set the departing employer’s responsibility and the date on which the responsibility is calculated. The issue in this case is whether the background economic assumptions – in particular the discount rate of interest that is crucial to the amount of liability – are supposed to be accurate on the date of calculation or based on assumptions the actuary was using during the preceding year (before the employer withdrew). The question often matters a lot. In this case, for example, the departing employer owed more than three times as much under the interest rate that was current on the date the actuary made the calculation as it would have owed under an interest rate set the previous year.Justice Ketanji Brown Jackson’s brisk opinion for a unanimous court is squarely on the side of accuracy as of the date that the actuary in fact makes the calculation. Jackson’s take on the statute is that the requirement to make the calculation “as of” the measurement date “means two things. First, the hard data about the plan that feeds the … calculation must be fixed on the measurement date. Second, … the actual … calculation can be performed after the measurement date.” For her, “the key question is whether actuarial assumptions [like the proper discount rate] are akin to the facts about the plan that must be fixed on the measurement date, or whether they are a part of the … calculation itself and can therefore be selected after the measurement date.”Once she has posed that as the question for decision, the case is pretty much over. Jackson explains that “actuarial assumptions … are not factual inputs. Instead, they are predictive judgments about a plan’s anticipated future performance—tools actuaries use to calculate the plan’s [unfunded future obligations].” In practice, she points out, “actuarial assumptions are adopted for the purpose of a particular calculation or measurement; they are not generally ‘in effect’” for some particular time period. In short, “[b]ecause actuarial assumptions are tools used to calculate [unfunded future obligations] rather than hard data about the plan, they cannot be ‘frozen’ on the measurement date.” Thus, Jackson concludes, the statutory “as of” requirement only “sets the reference point for the factual inputs into the … calculation. It has no bearing on when actuaries must select the tools, including assumptions, they use to calculate a plan’s [unfunded future obligations].”Jackson buttresses her conclusion by pointing out that the statute requires only that the actuary’s assumptions must be “reasonable,” “tak[e] into account the experience of the plan and reasonable expectations,” and “offer the actuary’s best estimate of anticipated [future] experience under the plan.” It did not, though, directly specify that actuaries should select assumptions as of any particular date. For other calculations under the statute, in contrast, Congress did much more to specify the relevant assumptions. Congress’ failure to specify the relevant assumptions here, Jackson “presume[s,] is intentional.”In the grand scheme of ERISA litigation, I doubt this will be an important decision. The justices needed to decide it because courts in New York were applying a contrary rule, but it seems unlikely to shed light on the general provisions governing plan administration that spark the great bulk of ERISA litigation.Read more

Last month, The New York Times published a major scoop: the inside story of the Supreme Court’s 2016 order blocking then-President Barack Obama’s Clean Power Plan, an environmental initiative intended to address climate change, on its interim docket.In the story, Jodi Kantor and Adam Liptak suggested that the order “marks the birth … of the court’s modern ‘shadow docket,’ the secretive track that the Supreme Court has since used to make many major decisions.” But Kantor and Liptak’s story was notable for another reason: it relied on a series of confidential internal memos that the Times had obtained from an undisclosed source. This was a rare leak from an institution that prides itself on keeping its internal workings out of the public eye – and has mostly, but not entirely, succeeded.Perhaps the leak that will come to most readers’ minds was also one of the most significant leaks in Supreme Court history. On May 2, 2022, Politico reporters Josh Gerstein and Alexander Ward published what they described as a draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization that would overturn the constitutional right to an abortion recognized in Roe v. Wade.The Supreme Court confirmed that the draft opinion was authentic and announced that the court’s marshal, Gail Curley, would lead an investigation into the leak. In January 2023, however, the court released a report in which it revealed that Curley’s team had “to date been unable to identify a person responsible” for the leak “by a preponderance of the evidence.”The draft opinion itself sparked protests around the country, including at the Supreme Court building and some justices’ houses. Justice Brett Kavanaugh was also the target of an attempted assassination in June 2022. The would-be assassin, who cited the leak of the draft opinion as a motive, pleaded guilty last year and was sentenced to eight years in a federal prison.Although the Dobbs leak was one of the most dramatic leaks in Supreme Court history, leaks of confidential information (without confidential documents accompanying that information) have been significantly more common – if not commonplace – for more than a century.Some of these leaks occurred before the decisions involved were released. Shortly after the Dobbs leak, for example, law professor Jonathan Peters noted that in the 1850s, the New York Tribune revealed the outcome of the Supreme Court’s decision in a dispute between Pennsylvania and the Wheeling & Belmont Bridge Company not once but twice – in 1852 and then again when the case came back to the court in 1854.In 2002, John Owens, now a judge on the U.S. Court of Appeals for the 9th Circuit, recounted the story of Ashton Embry, a former law clerk to Justice Joseph McKenna who was indicted in 1920 on charges that he had leaked the results of the Supreme Court’s decision in a case involving Southern Pacific Railroad to investors, who made money by selling the company’s stock before the decision was released. Embry’s indictment was dismissed nearly a decade later.Although the draft opinion itself was not leaked in Roe, there were two different leaks disclosing the machinations behind the scenes, and ultimately the results, in that case. The first leak, Peters noted, was an unsigned 1972 article in The Washington Post that described the “internal court struggle over” the case, including the results of the initial vote and efforts by then-Chief Justice Warren Burger to delay the court’s decision. The story also discussed the substance of several private notes and memoranda exchanged among the justices, although it did not publish the notes and memoranda themselves.And in 1973, a law clerk revealed the results of the decision to a reporter for Time magazine, giving him the information “on background” to use after the opinion was released. But the opinion was delayed, and Time instead published the story shortly before the opinion announcement on Jan. 22, 1973. According to Peters, the incident led to Burger’s creation of what became known as the “20-second rule” for law clerks: any law clerk seen talking to a reporter would be automatically fired within 20 seconds.Court insiders have also disclosed confidential information to reporters after decisions have already been released, often shedding new light on the court’s decision-making process even if the results in a particular case are already public. In 1979, journalists Bob Woodward and Scott Armstrong published The Brethren, a detailed, behind-the-scenes look at the first few years of Warren Burger’s tenure as the court’s chief justice. Closed Chambers, published in 1998 by Edward Lazarus, pulled back the curtain on his year as a law clerk to Justice Harry Blackmun.And in October 2004, law clerks who were working at the court when the justices issued their 5-4 decision in Bush v. Gore, which ended the presidential election recount in Florida and allowed for the victory of George W. Bush, spoke with reporters for Vanity Fair. The clerks, who were not identified, offered a detailed look behind the scenes of the court’s handling of the litigation and criticized the court’s decision as driven by partisanship on the part of the court’s conservative justices; the article, and the clerks’ decision to speak with Vanity Fair, in turn drew criticism from other former law clerks and judges. Eight years later, Jan Crawford of CBS News broke the story of an about-face by Chief Justice John Roberts on the validity of the Affordable Care Act’s individual mandate, which required nearly everyone in the United States to buy health insurance or pay a penalty. Roberts, Crawford wrote, “initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, … but later changed his position and formed an alliance with liberals to uphold the bulk of the law.” Crawford attributed her reporting to “two sources with specific knowledge of the deliberations.”In 2019, CNN’s Joan Biskupic reported that Roberts had changed his vote in the challenge to the inclusion of a question about citizenship on the 2020 census, ultimately agreeing with the court’s (then) four Democratic appointees that there was “a significant mismatch between the decision the Secretary made and the rationale he provided.” Much like Crawford, Biskupic wrote that her information came from “sources familiar with the private Supreme Court deliberations.”Just over a year and a half after the leak of the draft opinion in Dobbs, Kantor and Liptak reported on the “inside story” of the Dobbs decision. Among the many details revealed for the first time in their story was that Justice Amy Coney Barrett, who eventually joined Alito’s opinion overturning Roe, at one point voted against taking the case. Moreover, they wrote, although the justices agreed in early January 2021 to grant review, the court delayed its announcement that it would hear oral argument in the case until May, at Kavanaugh’s suggestion.In 2024, Kantor and Liptak pulled back the curtain on yet another set of proceedings at the court that had already concluded, this time involving (among others) the court’s decision granting President Donald Trump broad immunity from criminal prosecution for his acts as president. Roberts, Kantor and Liptak reported, had sent his colleagues “a confidential memo that radiated frustration and certainty.” “He wrote,” they continued, “not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it.”In a recent appearance on Fox News Sunday to promote his new children’s book, Justice Neil Gorsuch criticized the recent spate of leaks, saying that the court needs to be able to “leave room for candid conversations and deliberations with one another.” But with the current divisions on the court, and the aggressive efforts by outlets like The New York Times to uncover more information about what is going on behind the scenes, we may well see even more leaks in the years to come.Read more

A programming note: We are observing Memorial Day on Monday, so you will next receive the SCOTUStoday newsletter on Tuesday.At the CourtOn Thursday, the Supreme Court released its decisions in Havana Docks Corporation v. Royal Caribbean Cruises and M&K Employee Solutions v. Trustees of the IAM National Pension Fund. It also dismissed Hamm v. Smith as improvidently granted.In Havana, the court, by a vote of 8-1, ruled in favor of a U.S. business that, in a lawsuit against several cruise lines, is seeking to recover for its losses under a 1996 law that targets the Cuban regime. Justice Clarence Thomas wrote the majority opinion, and Justice Elena Kagan penned a rare solo dissent.In M&K, a unanimous court held that ERISA provisions governing the calculation of withdrawal liability from an underfunded multiemployer pension plan do not require that actuaries use assumptions adopted prior to the measurement date. Justice Ketanji Brown Jackson authored the opinion of the court.In Hamm, the court considered how and whether to assess a claim under Atkins v. Virginia (which prohibited the execution of people who are intellectually disabled) when a defendant has taken multiple IQ tests. The vote was effectively 5-4, with Justices Thomas, Samuel Alito, and Neil Gorsuch and Chief Justice John Roberts opposing the decision to dismiss the case as improvidently granted.After the opinion announcements, the justices met in a private conference to discuss cases and vote on petitions for review. Orders from Thursday’s conference are expected on Tuesday at 9:30 a.m. EDT.Also on Thursday, the court denied three additional requests for a stay of execution from Tony Carruthers, whose previous request was denied on Tuesday. Tennessee began his execution, but called it off after officials failed to find a vein.The court also denied two requests for a stay of execution from Richard Knight, who was sentenced to death in 2006. Knight was executed in Florida hours later.The court has indicated that it may announce opinions on Thursday, May 28, at 10 a.m. EDT. We will be live blogging that morning beginning at 9:30.Morning ReadsHouse Democrats take on the Supreme Court shadow docketBenjamin S. Weiss, Courthouse News ServiceOn Thursday, Rep. Jamie Raskin, a Democrat from Maryland, “unveiled a package of legislation he said would shine a spotlight on the Supreme Court’s shadow docket and demystify the justices’ secretive and often unexplained emergency orders,” according to Courthouse News Service. The legislation “would attempt to address the opaque nature of the shadow docket by requiring the Supreme Court to issue public legal justification for orders issued from the emergency pool within seven days.” “Courts don’t lose authority when they explain themselves – that’s where their legitimacy comes from,” Raskin said to Courthouse News Service.Trump fires warning shot at SCOTUS as major citizenship showdown looms: ‘It will be a disaster’Ashley J. DiMella, Fox NewsSpeaking Thursday from the Oval Office, President Donald Trump predicted a loss for his administration in the Supreme Court’s birthright citizenship case, which addresses his “January 2025 executive order seeking to limit automatic citizenship for some children born in the U.S.” Such a ruling “would be a disgrace,” the president said, adding that the justices will “probably rule against me because they seem to like doing that.” “You know, frankly, I’m not happy with some of the decisions,” Trump said.Gun activists ask Supreme Court to block Maryland’s ban on firearms at ‘sensitive places’Stephen Dinan, The Washington TimesIn a petition for review filed this week, a “coalition of gun-rights groups has asked the Supreme Court to step in and block a Maryland law that bars even concealed-carry permit holders from carrying firearms at ‘sensitive places’ such as state parks, museums and mass transit,” according to The Washington Times. The groups contend that “the heart of the Second Amendment’s right to bear arms is personal protection” and that “states can abridge that right in locations only when the state itself provides armed guards and screening, such as a courthouse.”An Early Look at Scalia-Ginsburg FriendshipEd Whelan, Confirmation TalesIn a post for his Substack, Ed Whelan revisited “the remarkable story” of how Patrick Schiltz, who is now chief judge for the U.S. District Court for the District of Minnesota, came to clerk for then-Judge Antonin Scalia, which involved a “non-interview interview” and a competing offer from then-Judge Ruth Bader Ginsburg. Schiltz told Whelan that, upon learning of Ginsburg’s offer, Scalia “spoke highly of her, and told me I could not go wrong” with either job. When Schiltz told Scalia that he “wanted to clerk for him” but was worried about insulting Ginsburg, Scalia helped him deliver the news. “He picked up the phone, called Judge Ginsburg, and said: ‘Ruth, I’ve got Patrick Schiltz in my office. I told him that he can’t leave until he accepts my offer. He has a plane to catch, so he accepted. Blame me,’” Schiltz recalled, adding that he “could hear her on the other line telling Judge Scalia that she thought” Scalia and Schiltz “were a great match.”On SiteFrom the SCOTUSblog TeamCourt sidesteps death-row IQ dispute The Supreme Court on Thursday left in place a ruling by a federal appeals court in favor of an Alabama man who has been on that state’s death row for more than two decades. In a one-sentence, unsigned order, the court dismissed Alabama’s petition for review in Hamm v. Smith as “improvidently granted” – that is, without deciding it. That order leaves undisturbed a ruling holding that Joseph Smith is intellectually disabled and therefore cannot be executed.Opinion AnalysisCourt rules against cruise lines in Cuban confiscation caseMore than 65 years after the confiscation by Cuba’s communist government of assets owned by U.S. businesses there, the Supreme Court on Thursday ruled in favor of a U.S. business that is seeking to recover for its losses under a 1996 law that targets the Cuban regime. By a vote of 8-1, the justices ruled that Havana Docks, a U.S. company that before 1960 had owned a right to use and operate the docks in the port of Havana, is potentially entitled to receive hundreds of millions of dollars for the use of the port by cruise lines between 2016 and 2019, even if the company’s control of the docks would have expired in 2004.From the SCOTUSblog TeamCourt puts off deciding whether to consider $5 million verdict against Trump – yet againA high-profile petition for review from President Donald Trump asking the court to review the $5 million jury verdict against him in a sexual abuse and defamation case filed by journalist E. Jean Carroll has been fully briefed since January. It was originally scheduled for a February conference, but the justices have rescheduled it 11 times this winter and spring. There is no way to know what is going on behind the scenes, but the delay may be related to a separate defamation case involving Carroll.PodcastsAdvisory OpinionsAll the Things Wrong with Trump’s Billion-Dollar FundSarah Isgur and David French analyze President Donald Trump’s $1.776 billion “anti-weaponization” fund through the lens of three legal “buckets,” and talk about how federal appropriations work and the Obama-era case that hangs over this legal issue.A Closer LookJustice Ketanji Brown Jackson speaks Coverage of Justice Ketanji Brown Jackson’s Monday night remarks in Washington primarily focused on her critiques of the court’s decision to immediately finalize its ruling in the Louisiana redistricting case and her concerns about the court appearing partisan in an election year. And while those may have been the most newsworthy things she said, Jackson also spoke on her upbringing in Miami, the “crazy” environment that came with her Supreme Court appointment, and why she believes Justice Stephen Breyer offered her a clerkship.The conversation, moderated by U.S. District Judge Richard Gergel at the American Law Institute’s annual meeting, opened with Jackson reading from the preface of Lovely One, her memoir published in 2024.From there, Jackson walked the audience through her family’s story (“a family of strivers,” she called them) with the help of a slideshow of photographs, pausing on images of her grandparents, who migrated from Georgia to Miami in 1939 in search of greater opportunity. Jackson explained that her grandfather started a gardening business and put all five of his children through college. “He knew that that was going to be the key,” Jackson said, “Making that investment in education was going to be the way in which our family would be able to survive and improve.” She also described how her aunt, who was working as a missionary in West Africa when Jackson was born, sent a list of African names to her mother, from which her mother chose the name Ketanji Onyika, meaning “lovely one.”Jackson then explained that, while she was still a child, her father made a mid-career change from teaching history in D.C. to attending the University of Miami Law School. “I actually never thought you could do anything other than be a lawyer,” Jackson said. “Because that’s what I knew, you know, when you grow up on the campus of a law school, education becomes what you know, law became what I was interested in from that young.”Prompted by Gergel, Jackson added that her father eventually became the lawyer for the school board for the Dade County Public School district, and that is what she and Breyer connected over during her clerkship interview. “I am to this day convinced I got the interview or got the job with Justice Breyer because Justice Breyer’s father was the lawyer for the school board in San Francisco. And he was so excited when he heard that, he thought he had something in common with me.”Jackson also shared a story from her memoir about a defining moment in high school, when a store clerk followed her around a shop while her white classmates moved freely. She described going home to her grandmother, who urged her not to let it define her. “And don’t let them get inside you,” her grandmother told her.When asked what life had been like since her nomination to the court, Jackson said that “it’s only been four years that I’ve been on the court and it’s like overnight your life changes. … You go from being a relatively anonymous judge in the world to being someone that people recognize.”When the conversation turned to the court’s emergency docket – a concern Jackson has raised before, including during a lecture at Yale Law School earlier this year – she reprised her criticism of the court increasingly intervening in cases still pending before lower courts, often without full briefing or argument. She proposed two remedies: a threshold requirement of genuine urgency before intervention, and a reordering of the factors the court applies, putting irreparable harm ahead of likelihood of success on the merits.Perhaps her most pointed comments came when Gergel raised Louisiana v. Callais, the Voting Rights Act case. Jackson talked about dissenting from the court’s decision to shorten its standard 32-day waiting period before finalizing the ruling, and said the court had deviated from that practice over a party’s objection only two or three times in roughly 25 years. As USA Today reported, Jackson said the court has “to be really, really careful in this environment when we’re dealing with issues that have a political overlay,” and that “public confidence is really all the judiciary has.”Asked finally about her many dissents, Jackson said that she agreed with her colleague Justice Ruth Bader Ginsburg, who “said that dissents are really written for a future age, that they lay down a marker for the future.” “Dissents, I think, are one of the most extraordinary aspects of the American legal tradition, because they actually embody one of our core values, the idea of freedom of expression and tolerance of minority views,” Jackson added. “This is something that is integral to who we are as Americans, and we have a practice that allows for that.”SCOTUS QuoteJUSTICE SCALIA: “What is the ambiguity we are talking about?”MR. HALLWARD-DRIEMEIER: “Well, the ambiguity – I actually think there is no ambiguity because –”JUSTICE SCALIA: “What is the non-ambiguity we are talking about?”— Executive Benefits Insurance Agency v. Arkison  (2014)Read more