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.
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