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CalPERS on Tuesday gave up a seven-year legal battle to claw back hundreds of thousands of dollars from four pensioners who the fund accused of breaking the rules about working after retirement.Read more

Families will soon start moving into the new Auburn Vista Apartments in northeast Bakersfield after local officials celebrated the project’s completion with a ribbon-cutting Wednesday.Read more

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not reflect the official opinions of SCOTUSblog. In Chiles v. Salazar, the Supreme Court held that Colorado’s law prohibiting licensed counselors from seeking to change the sexual orientation or gender identity of minors was subject to strict First Amendment scrutiny – a victory for opponents of the law. The statute, the court held, was protected speech, and discriminated based on viewpoint by allowing the counselors to engage in therapies that affirmed specific sexual orientations and gender identities, but not speech that sought to change them. Perhaps most surprisingly, despite its politically contentious nature, Chiles was an 8-1 decision, with the senior justices on the liberal wing of the court – Justices Sonia Sotomayor and Elena Kagan – joining the majority opinion in full. Kagan (joined by Sotomayor) also wrote separately to suggest that while certain regulations of conversion therapy might pass muster, the viewpoint-based approach of the Colorado law went too far. Justice Ketanji Brown Jackson alone claimed that the law did not trigger heightened scrutiny and would have allowed it to stand instead of sending the case back to the lower court. The rift between Jackson and the more moderate end of the liberal bloc has received some airtime – it is not unheard of for Sotomayor and Kagan to join the court’s conservative wing, leaving Jackson on her own. But, a split is statistically rare among the liberal justices in First Amendment cases. Further, liberal unanimity was a feature of the three cases between 2022 (when Jackson joined the bench) and 2025 with LGBT-rights implications. While LGBT advocates lost the cases, the court’s liberals dissented jointly. Indeed, up until Chiles, Jackson had never written a solo opinion in a case involving LGBT rights – she simply joined the senior justices’ dissents. It could always be the case that the justices simply see the law on this issue differently. But given the history of overlap, there is at least some possibility that there was a view of the law the three justices would have coalesced around, but for strategic or ideological considerations did not. So are Sotomayor and Kagan trying to soothe and placate a conservative majority? And is Jackson simply an ideologue, as some have contended, blindly hewing to LGBT orthodoxy?  Why the majority opinion got it wrong The majority opinion’s analysis began with a paean to the First Amendment: “The First Amendment ‘envisions” that all individuals will have “the ‘freedom to think as you will and to speak as you think,’” even when speech “can be misguided, offensive, or cause ‘incalculable grief.’” The principle is, of course, fine, but it is somewhat divorced from reality: in practice we do not want, or expect, doctors to have full “freedom to think as [they] will and to speak as [they] think.” We certainly do not want medical advice that is “misguided, offensive, or caus[ing] ‘incalculable grief.’” Rather, we expect doctors to apply the knowledge they obtained through their medical education. That knowledge is usually developed, debated, and refined in research settings, not in clinical practice. Indeed, it would be unethical for practitioners to try out new, untested ideas they have on their patients – indeed, that is what American doctors did with certain Black patients. The court suggests that many of these harms can be averted because of an explicit exception to strict scrutiny from previous cases: “incidental[] burdens [on] speech” connected to conduct (rather than speech itself), escape heightened scrutiny. Medical advice, the majority claims, is usually connected to some kind of conduct or procedure the physician seeks to carry out and therefore falls into that exception. Along those lines, the court’s conservative majority has upheld state laws forcing doctors to provide (often misleading) information to patients seeking abortion because that speech was connected to a medical procedure. The Colorado law, however, targets talk therapy, which, the court’s majority points out, is unconnected to any separate conduct.  But this procedure-based distinction is incoherent. Not only is the court unclear with what constitutes a procedure (as best as I can tell, prescribing medication counts as a procedure), but also, as an amicus brief I filed in the case explains, a huge amount of the most important medical speech is not connected to a procedure. For example, pediatricians often recommend “watchful waiting” for children with ear infections, minor viral illnesses, foreign bodies in their digestive system, and slower-than-usual development. Internists often advise rest and hydration for mild gastrointestinal or respiratory symptoms; oncologists might have to inform patients that there is nothing to be done for their condition; and geriatricians might counsel families about dementia. Such speech has created malpractice liability for over a century. Before antibiotics were discovered in the 1950s, physicians’ most effective assistance was providing information that did not involve procedures. Rather, they would provide advice on how infection spread and how to avoid it – and when they made mistakes, patients filed (and won) malpractice suits. More recently, patients have continued to advance medical malpractice claims in cases where a doctor has offered incorrect information about the genetic risks of reproduction, foreign bodies passing through the digestive system, failed to make a diagnosis, and so on. In psychological contexts, courts have recognized liability for therapists using incorrect techniques, creating false memories or allegations of sexual abuse, and for using abusive speech. These malpractice suits penalize speech when no procedure is involved, and thus do not fall within the “incidental burden” exception. So how are they permissible under the First Amendment? The court makes an offhanded, ad hoc acknowledgement that “traditional tort malpractice claims” do not trigger heightened scrutiny (without explaining why). But such malpractice suits, the court claims, are different from Colorado’s law on one key ground: malpractice suits require, they claim, “[e]xacting proof requirements,” that may “provide sufficient breathing room for protected speech.”  This makes little sense. Like most of the country – and as in the vast majority of civil suits – the proof requirement for such a plaintiff in Colorado is preponderance of evidence. Which is exactly the same evidentiary standard that apply to licensing proceedings for Colorado professional counselors (not to mention, the extra layers of judicial review that apply to all administrative proceedings). In other words, the court’s reasoning in this important constitutional case hangs entirely on an evidentiary standard distinction which does not exist. Not only was the majority’s reasoning off, its rhetoric was puzzling. In particular, the court defended its skepticism of relying on medical standards by citing to Buck v. Bell, where the court (also 8-1) backed a eugenic state law allowing for the sterilization of individuals with mental disabilities. But the eugenic sterilization laws at issue in Buck were regularly applied to gay people on the ground that homosexuality was an illness. That is the viewpoint that the court’s opinion defends, not one it rejects. Thus, Sotomayor and Kagan appear to have subscribed to both reasoning and rhetoric that are wanting.  Explaining the compromise Of course, it is possible that Sotomayor and Kagan are in full accord with the majority opinion they signed on to. But given the court’s reasoning and rhetoric, it is also possible they did so as a strategic compromise – something certainly not unheard of on the current court (or those before it). One indication of strategic compromise lies in the citations in Kagan’s concurrence. Apart from citing to opinions by herself and Sotomayor, she cites only two other justices –Justice Stephen Breyer (who was Jackson’s predecessor), and Justice Amy Coney Barrett. As the New York Times reported, Barrett has apparently long been the subject of overtures from Kagan, and often, Sotomayor, perhaps to good effect. If Kagan and Sotomayor acted strategically, to what end? First, as is not unusual on the court, they might have joined the majority to cabin its opinion. The majority’s opinion, for example, contains language that promises that “a law … prohibiting counselors from … affirming their clients’ homosexuality,” would also be subject to strict scrutiny. This concession that anti-gay speech would be treated on equal terms as pro-gay speech is significant. In the abortion wars, for example, the court’s conservative majority upheld a Pennsylvania law mandating doctors to engage in anti-abortion speech but then invalidated a California statute that required pro-reproductive rights speech.   There are also a few other possible concessions the liberal justices may have obtained. For example, the court stops short of adopting the reasoning of the U.S. Court of Appeals of the 10th Circuit’s dissent, which discounted the evidence regarding the inefficacy and problematic nature of conversion therapy. Instead, the majority opinion in Chiles takes no stance on conversion therapy’s efficacy, noting only that it is the “subject of ‘fierce public debate.’” And though the opinion states that heightened First Amendment scrutiny applies, it does not apply such scrutiny and strike down the law itself, leaving this analysis to the lower court. In joining the majority, Kagan and Sotomayor might have also had their eye to the future. As Kagan’s concurrence explains, “[m]edical care typically involves speech, so the regulation of medical care …. may involve speech restrictions… [that] refer to the speech’s content.” Perhaps the justices foresee a case in which content-based regulations that are putatively viewpoint-neutral are challenged. What might such content-based but viewpoint-neutral regulations look like? Here, Kagan gestures to Jackson’s opinion, which lists laws requiring speech that “ ‘promote[s] the welfare, autonomy and best interests of’ the client,”  treats the client “humane[ly],” “‘assure[s] client welfare and protection’ during medical care,” and that prohibits speech that is “cruel” or contains unverifiable “claims of professional superiority.” Perhaps Kagan and Sotomayor see provisions like these as second-best alternatives to protect LGBT children that the conservative majority will uphold. (Given the conservatives’ past behavior, and the chimerical distinction between content- and viewpoint-based regulations, I believe that hope to be overoptimistic). Even if Kagan and Sotomayor achieved significant concessions, this does not mean Jackson was wrong to dissent. While I believe her dissent misses some key points (such as the licensing and malpractice ones emphasized above), she presents a powerful corrective to the majority’s framework. And, unlike the majority opinion, Jackson emphasizes that LGBT identity is simply “a part of the normal spectrum of human diversity” – not something to be “cured.” In that way, while the split between the court’s liberal justices can be portrayed as a schism, it can also be portrayed as teamwork, with one set of justices engaging in compromise, and another justice providing a vision of what that compromise can one day achieve. The post The (non-)partisan puzzle in the conversion therapy case appeared first on SCOTUSblog.Read more

Empirical SCOTUS is a recurring series by Adam Feldman that looks at Supreme Court data, primarily in the form of opinions and oral arguments, to provide insights into the justices’ decision making and what we can expect from the court in the future. Looking across the petitions currently tracked on SCOTUSblog’s designated petitions page, we can see some patterns about what types of cases the court may be interested in hearing in the 2026-27 term. First, the relist numbers (that is, cases considered at multiple conferences – which can mean the court is seriously considering taking these up) are unusually high this term. Of the relisted cases, several have been relisted eight or more times – a level of sustained conference attention that historically correlates strongly with an eventual grant. Smith v. Scott, about whether police officers’ use of force to restrain a suspect violated the Fourth Amendment, leads at 17 relists, a figure that almost never appears for petitions that are eventually denied. Second, the amount of Second Amendment cases is larger and more coordinated than anything seen since the post-Bruen term (in which the court found that one had a right to carry a concealed firearm) began working through its downstream cases. Five petitions from different circuits, involving both magazine capacity restrictions and assault-style rifle bans, are pending simultaneously. Third, a set of parental-rights cases is building alongside the more visible Second Amendment ones, and the relist numbers there – 11 for Foote v. Ludlow School Committee (concerning whether a school district violated a couple’s parental rights when it encouraged their child to transition to a different gender identity), with nine amicus briefs filed at the cert stage – suggest the court has been doing something more than giving routine consideration to these cases. What follows works through these petitions, those carrying the strongest likelihood of being granted, and a separate look at the earlier-stage petitions where the data is thinner, to try and get an understanding of what might be heard next term. What’s covered The analysis is based on a comprehensive tracker of pending cert petitions across four categories: relisted cases, petitions set for the next conference, featured petitions (by SCOTUSblog), and calls for the views of the solicitor general. Each case is assessed using a weighted formula that treats relist count as the most important factor, then layers in circuit split confirmation, dissents below, CVSG status, whether the solicitor general is a petitioner, amicus activity at the cert stage, and counsel quality to determine which cases are most likely to be granted. The clusters The Second Amendment cluster The broadest story on the current docket is the accumulation of Second Amendment petitions, all pressing variations of the same question left open after the 2022 case of New York State Rifle & Pistol Association v. Bruen: what categories of commonly owned firearms and accessories fall within the Second Amendment’s protection? The strongest vehicle in this cluster, based on the current data, is Duncan v. Bonta, on whether states can ban large-capacity magazines. Duncan has been relisted 11 times, has a confirmed en banc dissent in the U.S. Court of Appeals for the 9th Circuit below, presents a genuine circuit split on magazine capacity restrictions, and is represented by Erin Murphy of Clement & Murphy. The petition also carries a takings clause hook, challenging the requirement that owners dispossess themselves of lawfully acquired magazines without compensation. Five amicus briefs were filed at the cert stage. Across every dimension the model weighs, Duncan is a strong contender for cert. Viramontes v. Cook County presents the assault-style rifle question directly – whether the Second and 14th Amendments protect the right to possess AR-15 platform rifles in common use. David Thompson of Cooper & Kirk represents the petitioner, the case has been relisted 11 times, and SCOTUSblog has featured it as a case to watch. The U.S. Court of Appeals for the 7th Circuit issued the opinion below as a per curiam on June 2, 2025, with no dissent – which, while not a negative signal, means the case lacks the additional cert indicator that a written dissent would provide. What gives the petition its force is the acknowledged four-to-seven circuit split on assault weapon bans and the weight of the relist count. Grant v. Higgins presents the same assault-style rifle question from the U.S. Court of Appeals for the 2nd Circuit, also represented by Thompson and Cooper & Kirk, and relisted six times. The two cases are direct companions. If the court grants Viramontes, it will almost certainly hold Grant pending the outcome in the former case or consolidate them. The large capacity magazine side of the cluster has two additional petitions: Gator’s Custom Guns v. Washington, a Washington Supreme Court vehicle with 11 relists and Erin Murphy as counsel again, and NAGR v. Lamont, which combines the assault rifle and LCM questions in a single 2nd Circuit petition, relisted six times. The court is unlikely to grant all of these cases. Based on the relist clustering, the most plausible scenario is that the court grants one of the rifle cases and one of the magazine cases – though which it selects is not something the available data can resolve. The parental rights cases Two cases are building toward what may become the term’s most significant ruling outside of the Second Amendment context. Foote v. Ludlow School Committee asks whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, it encourages a student to socially transition to a different gender identity. The U.S. Court of Appeals for the 1st Circuit ruled against the parents in February 2025. The petition has been relisted 12 times, nine amicus briefs have been filed at the cert stage – an unusually high number – and Alliance Defending Freedom represents the petitioners through John Bursch. A companion case, Lee v. Poudre School District R-1, is pending from the U.S. Court of Appeals for the 10th Circuit on a similar question. Littlejohn v. School Board of Leon County comes from the U.S. Court of Appeals for the 11th Circuit and presents a related but distinct constitutional question: whether parental-rights claims challenging school gender identity policies require the demanding “shocks the conscience” test or a less rigid standard. Judge Gerald Tjoflat dissented from the majority opinion siding with the school, calling the decision “as wrong as it is ominous.” Cameron Norris of Consovoy McCarthy represents the petitioners, and Florida, joined by 21 other states, filed an amicus brief. The case has not yet been relisted – relist count is the strongest single factor in terms of cert possibility, and its absence keeps Littlejohn a tier below Foote for now. But the Tjoflat dissent and multi-state amicus coalition make this one of the cases most worth tracking as it moves through the conference cycle. Other candidates Beyond the clusters above, three individual cases also stand out as cert contenders. As noted earlier, Smith v. Scott has been relisted 17 times. That figure is not common and almost never appears for petitions that are eventually denied. The case asks whether officers acted reasonably under the Fourth Amendment in using pre-handcuffing bodyweight pressure on a potentially armed individual resisting arrest, and whether qualified immunity was properly denied when no prior case clearly established a violation. Megan Wold of Cooper & Kirk represents the petitioner. The court has also requested the record of the case twice (which shows obvious interest in it from at least some of the justices). A petition at 16 relists with record requests is, in the historical pattern, headed toward either a grant or a summary disposition (judgment without oral argument or full briefing) – though there is no guarantee of either. District of Columbia v. R.W.  has been relisted nine times, with the District of Columbia as the petitioner and the respondent having initially waived opposition. The case raises a Fourth Amendment reasonable suspicion question – specifically, whether that analysis may exclude facts known to the officer at the time of the stop. A government petitioner, eight relists, and a recurring Fourth Amendment methodology question together make this a case to watch. Poore v. United States asks how prior precedent constrains deference to the U.S. Sentencing Commission’s interpretation of its own Guidelines commentary – a question that has divided circuits. Neal Katyal of Milbank LLP represents the petitioner and the case has been relisted nine times, with a related petition in Beaird v. United States also pending. The solicitor general has opposed certiorari, which is a genuine counterweight. But nine relists with elite counsel on a developed circuit split is a pattern associated with eventual review. St. Mary Catholic Parish v. Roy explicitly asks the court to overrule the 1990 case of Employment Division v. Smith, one the court’s most important free exercise cases. The Becket Fund’s Eric Rassbach represents the petitioner, 10 amicus briefs were filed at the cert stage and Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch have each written separately about their interest in revisiting Smith. It has been relisted one time. The CVSG and solicitor general brief watch Several petitions on the docket have received calls for the views of the solicitor general. Historically, roughly 70-75% of cases that receive a CVSG are eventually granted. Does 1-2 v. Hochul asks whether a New York law that effectively mandates denial of all religious accommodations to healthcare workers is preempted by Title VII’s accommodation requirement for religious beliefs. Five amicus briefs have been filed. On the administrative law side, Department of Labor v. Sun Valley Orchards is a solicitor general petition asking whether Article III precludes Congress from assigning H-2A visa penalty adjudications to the Labor Department rather than an Article III court. The U.S. Court of Appeals for the 3rd Circuit held this unconstitutional. This is a first-conference petition; a solicitor general’s petition challenging a circuit decision that invalidated a federal statute is something the court frequently takes up, but it often needs time to develop. The earlier-stage petitions Then there are petitions I’ve tracked that are at or near their first conference and have not yet accumulated a relist history. The most predictive variable that a case will be granted, relist count, is effectively zero for all of them. That does not mean, however, they are unlikely to be granted. It means the court has not yet signaled anything meaningful about them, or in some cases has only just begun to do so. Several carry certain features – elite cert counsel, confirmed circuit splits, government petitioners, sophisticated amicus coalitions – that in other contexts would be associated with serious cert consideration. A few worth flagging within this group: Johnson v. United States presents a clean Jardines follow-up dealing with apartment door drug-detection dog sniffs, with a confirmed circuit split and Skadden arguing below. Youth 71Five Ministries v. Williams brings a free exercise question with Alliance Defending Freedom at the cert stage and six amicus briefs filed. Johnson & Johnson Consumer v. Noohi raises a class-certification issue with a five-amicus coalition including elite counsel and the Chamber of Commerce. AstraZeneca v. Kennedy represents a constitutional challenge to the Inflation Reduction Act’s drug-pricing negotiation program with significant industry backing. And Margolin v. NAIJ is a solicitor general petition on immigration judges’ union speech which previously appeared on the emergency docket. Of course, these case could be denied at the next conference, or could begin accumulating relists. In late spring, we will revisit where they have landed. The post What cases might the court grant next? appeared first on SCOTUSblog.Read more

When the justices meet for their private conference on Friday, April 17, they will consider a petition for review filed by a Catholic preschool in Colorado, challenging its exclusion from that state’s universal preschool program. The preschool contends that the state is discriminating against it based on religion, because Colorado will not provide it with an exemption from rules that would require it to admit everyone – including LGBTQ children and children with LGBTQ parents. In addition to the briefs filed by the preschool and the state in St. Mary Catholic Parish v. Roy, there are 21 “friend of the court,” or amicus, briefs supporting the preschool’s appeal, filed by groups ranging from the U.S. Conference of Catholic Bishops to a large coalition of states, led by West Virginia. But one amicus brief, in particular, stands out: a brief filed by the Trump administration, arguing that the decision by a federal appeals court in favor of Colorado was “seriously” wrong and that the Supreme Court should take up the case. Although the federal government frequently files “friend of the court” briefs in the Supreme Court, it has been – at least until recently – unusual for it to do so at its own initiative at this stage of the process. What might be going on here? Some background The federal government most commonly files amicus briefs in the Supreme Court at the “merits” stage – that is, after the justices have agreed to take up a case and hear oral argument on the merits, leading to a written decision. Indeed, during the court’s March argument session, the Trump administration filed amicus briefs in three of the five cases in which it was not involved as a party – involving federal election law, bankruptcy rules, and discrimination in jury selection. Roughly one dozen or so times each term, the court “calls for the views of the solicitor general,” which means that it invites the federal government to file a brief that weighs in on what the court should do with a particular petition for review. Such an order, which is known as an “invitation,” is particularly common in cases in which the government isn’t a party but may still have an interest — for example, because the interpretation of a federal statute is involved. When the brief is filed, the government’s recommendation, although not dispositive, normally carries significant weight with the court. The “uninvited” brief As John Elwood chronicled in an earlier story, it has been far rarer (although not unprecedented) for the federal government to file amicus briefs without a request from the court before the justices grant review. Since 1995, the federal government has only filed 23 such briefs – an average of fewer than one per year over 31 years (although, as Elwood explains, the briefs have not necessarily been spread out evenly over that time). But five of those have been submitted by the Trump administration in the last 13 months alone, beginning in March 2025. And the Trump administration filed two more in cases that were pending on the interim docket – again, without waiting for an invitation from the justices. So what explains this recent and significant uptick in uninvited amicus briefs? One partial explanation is provided in the government’s brief in the Catholic preschool case. In the section of the brief labeled “Interest of the United States,” U.S. Solicitor General D. John Sauer writes that “[t]he government’s decision to file an uninvited certiorari-stage amicus brief reflects its views about the severity of the court of appeals’ error, the recurrence of the question presented, and the significant benefit that further clarity in this area of the law would provide to the lower courts, federal and state governments, and the public.” More broadly, the case also implicates several issues that have been front and center for the Trump administration in its second term, such as religious freedom, the use of public funds for private religious schools, and a strong opposition to diversity, equity, and inclusion initiatives. Indeed, the cases in which the Trump administration has opted to file uninvited briefs suggest that the Trump administration has focused on particular areas of the law as priorities for Supreme Court review. While the cases in which the Supreme Court seeks the federal government’s views often tend to involve relatively technical questions – such as bankruptcy, employee benefits, and trademark law – the cases in which the solicitor general has filed uninvited briefs present higher-profile, and more controversial, issues. In addition to the Catholic preschool’s challenge, the Trump administration has supported a petition from Alabama, in which the justices were asked to overturn a decision by a federal appeals court holding that a defendant is intellectually disabled and therefore cannot be executed; filed a brief supporting prison officials, who were seeking review of a lower-court decision allowing an inmate to bring a claim seeking compensation for the use of excessive force against him; agreed with gun owners that the court should decide whether Hawaii could ban them from bringing guns on private property without the owner’s express permission; and encouraged the justices to grant a petition by energy companies that are being sued by state and local governments for their role in climate change. On the court’s interim docket, the Trump administration has supported requests to pause lower-court orders in two disputes over congressional redistricting, a top priority for President Donald Trump. In one pair of applications, New York Republicans were seeking to block an order that would have required the state to redraw its congressional map to add Black and Latino voters to the only district in New York City currently represented by a Republican. And in the other, Texas sought to use its new congressional map, which it hopes will create an additional five Republican seats in its congressional delegation, despite a lower-court ruling that the map unconstitutionally sorts voters based on race. The impact – and message – of the Trump administration’s uninvited briefs In the cases in which it has filed uninvited amicus briefs, the Trump administration’s batting average thus far has been impressive. In four of the five cases in which it has filed briefs since January 2025 supporting petitions for review, the Supreme Court granted three of those petitions and summarily reversed – that is, threw out the lower-court decision and ruled in favor of the litigant seeking Supreme Court review without additional briefing or oral argument – in the fourth. (The court has not yet acted on the fifth petition for review, filed by the Catholic preschool in Colorado.) The justices also granted the requests to pause the lower-court orders in the Texas and New York congressional redistricting disputes. It’s a fair question, however, whether the government’s briefs actually made a difference in the justices’ disposition of the petitions for review and stay requests. After all, none of these cases were likely to fly under the radar on today’s conservative court. And, as Elwood noted in his story, increasing the number of such filings is not risk free. First, he observed, too many uninvited amicus briefs could collectively dilute the impact of any individual brief. “A justice encountering such a brief today,” he wrote, “may reasonably wonder whether it signals a truly exceptional case or merely reflects a more assertive … posture by the executive branch.” And conversely, will the court construe the absence of an uninvited amicus brief as an implicit sign that the federal government does not regard the dispute as an important one? Second, Elwood noted, adding these briefs compounds the workload of a small, but already very busy, solicitor general’s office. (This is especially true because uninvited amicus briefs supporting petitions for review and stay applications almost always operate on a much faster timeline than amicus briefs filed at the court’s request or at the merits stage of a case.) But the Trump administration may believe that these risks are worth taking not only to influence whether the court grants review or a stay, but to shape the case or question before the court. And although such requests have supported conservative outcomes, they have also occasionally sought to limit the potential effects of the court’s decision.  In Hamm v. Smith, Alabama asked the justices to review a decision by the U.S. Court of Appeals for the 11th Circuit that set aside Joseph Smith’s death sentence on the ground that he was intellectually disabled and therefore could not be executed. The state’s petition for review outlined two specific questions it wanted the justices to take up: whether, under the Supreme Court’s 2001 decision in Atkins v. Virginia, barring the execution of people with intellectual disabilities, a state can require a defendant to show that his IQ is 70 or lower; and whether courts evaluating multiple IQ scores must find that every valid score of “about” 75 or lower supports a claim under Atkins. When it granted review, however, the Supreme Court adopted a different question, which had been proposed in the government’s uninvited amicus brief: “Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.” There is no way to know with any certainty why the Trump administration opted to suggest this question in place of Alabama’s. The federal government’s brief supporting review emphasized that it has “a direct interest in the proper framework to establish intellectual disability because” both Atkins and a federal law bar the execution of the intellectually disabled. The government may believe that its proposed test would provide more guidance going forward in other death penalty cases than Alabama’s – including in federal cases. And in Goldey v. Fields, federal prison officials urged the justices to review a ruling by the U.S. Court of Appeals for the 4th Circuit that allowed an inmate to bring a “Bivens claim” – that is, a claim alleging that the officials had violated his constitutional rights, even if there is no specific federal law authorizing his lawsuit – alleging the use of excessive force, in violation of the Eighth Amendment. The officials argued that the court should take up their case and “reject not just this type of Bivens action, but the entire concept of a judicially inferred cause of action to enforce the Constitution.” The Trump administration instead called the dispute the “rare case that calls for summary reversal” rather than full briefing and oral argument because the lower court’s ruling “flouts” the Supreme Court’s case law. Although it is unclear why the government sought this narrower holding, it is possible they were thinking strategically: The court has turned down previous requests to reconsider Bivens altogether, and the government may not have wanted to squander its credibility with the court by asking it to do so, only to have that plea also declined. With an appeal to overrule Bivens off the table, the government may then have preferred the strong message that would flow from a summary reversal. Whatever the government’s reason, in a unanimous, three-page, unsigned decision on June 30, 2025, the justices followed its recommendation and summarily reversed. The government has taken a similar, more limited approach in St. Mary Catholic Parish v. Roy, the Catholic preschool case that it will consider on Friday. In its petition for review, the preschool asked the justices to take up three questions, including whether to overrule the court’s landmark 1990 decision in Employment Division v. Smith, in which the justices held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone.  The Trump administration, by contrast, has asked the justices to consider just one question, which echoes the first question presented by the preschool’s petition for review: whether laws like Colorado’s “qualify as neutral and generally applicable under Employment Division v. Smith, so long as the exemptions are not for identical secular conduct and do not involve unfettered discretion.” If the court resolves this question, the Trump administration told the justices, it would not need to decide now whether to overrule Employment Division v. Smith itself. Instead, the government suggested, the court could simply make clear that the lower court was wrong to conclude that the Colorado law (and others like it) is not neutral and applicable to everyone. Will the justices ultimately grant the Catholic preschool’s petition for review? And, if so, what question or questions will it take up? Stay tuned; we could know more as soon as Monday at 9:30 a.m. EDT. But no matter what the court does, it seems likely that the current trend of uninvited amicus briefs from the federal government will continue. The post Why does the government keep showing up at the Supreme Court uninvited? appeared first on SCOTUSblog.Read more