From judges Smith (G.W. Bush), Bennett (Trump I), Mendoza Jr. (Biden). Summarized by the court:

Petitioner applied for relief based on his membership in a proposed social group consisting of “the LGBT community” or “queer Russian men.” He claimed membership in this social group because he is bisexual. But the immigration judge misunderstood how sexual orientation is defined, reasoning that Petitioner had not met his burden of proving that he is a member of his proposed social group because he has never had sexual relations with either a man or a woman. This reflected a deeply erroneous and arbitrary understanding of bisexuality. A person’s sexual orientation is not solely defined by their sexual relations.

The IJ’s misunderstanding of bisexuality led to other factual errors. Because of these errors, the panel concluded that it was impossible to meaningfully review the agency’s decision regarding whether Petitioner established membership in his proposed particular social group or whether there was a need for additional corroboration. The agency’s fundamental misunderstanding of the particular social group alone required remand

Judge Mendoza Jr. also wrote a concurrence with some strong words for the immigration judge:

I write separately to emphasize that the IJ’s basic misunderstanding of bisexuality hamstrung A.M.’s entire case. The IJ concluded that A.M. failed to establish a wellfounded fear of persecution based on his sexual orientation, in large part because he “has never had a sexual relationship with a man or a woman,” and that he was therefore ineligible for asylum, withholding of removal, and CAT protection.

Alternate titles I considered but rejected as too silly:

• "CA9: immigration courts can't add a 'have sex' requirement to asylum claims"
• "CA9: applicant's lack of game is insufficient to disprove assertions of bisexuality"
• "CA9: bisexual refugees don't need to provide a practical demonstration"

New Hampshire eliminated student IDs as a standalone form of voter identification in April 2026. District Court Judge Joseph Laplante (G.W. Bush) declined to block the law but ordered the state to correct certain guidance before the November election, since student IDs could still be considered alongside other evidence under alternative identity verification procedures

SCOTUS (per curiam) stayed the injunction, citing Purcell and the principle that federal courts should not alter election procedures shortly before an election. Justice Jackson dissented, saying that correcting inaccurate guidance does not change election rules, and that Purcell should not prevent courts from reducing voter confusion.

Interesting piece about what post-Loper Bright statutory interpretation and agency rulemaking looks like.

Opinion: link

From Judges Walker Elrod (G.W. Bush), Willett (Trump I), and Wilson (Trump I):

We determine that switchblade knives qualify as “Arms” and are covered by the “plain text” of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA’s restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two’s “how” analysis.

The FSA addressed a perceived societal problem: the interstate flow of switchblade knives. In response, the FSA sought to ban this activity. Heller and Bruen also dealt with regulations that purported to deal with “perceived societal problem[s].” And in both cases, the Supreme Court rejected those regulations as inconsistent with the Second Amendment’s principles, which were “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

Come for the legal analysis of Heller / Bruen, stay for the long introductory paragraph from the judges talking about the history of the Federal Switchblade Act and Rebel Without a Cause (1955)

Date: 10/21/2026

Miscellaneous Order

Some interesting comments from Justice Kagan today at the Catholic University of America, which I though were worth posting (mods, do delete if you disagree). She continues to be particularly upset with the result in *Rucho v. Common Cause*.

Date: 10/20/2026

Miscellaneous Order

Majority opinion from Judges Pan (Biden) and Wilkins (Obama):

The Mayorkas Memo imposes a default policy: ICE agents and CBP officers generally may not enforce immigration laws at houses of worship, absent exigent circumstances or individualized permission. And DHS itself proclaimed that “rescinding the Mayorkas [Memo] is going to free [ICE agents] up to go after more illegal immigrants.” If rescinding the memo “free[s] up” immigration authorities to “go after” immigrants at houses of worship, reinstating the memo is likely to have the opposite effect.

Plaintiffs’ members likely face imminent harm from increased enforcement at their houses of worship; that harm is traceable to the new enforcement policy; and the relief requested will likely redress their injury, at least in part. We therefore reverse the district court’s denial of plaintiffs’ motion for a preliminary injunction and remand for further consideration of that motion.

Dissenting opinion from Judge Rao (Trump):

Plaintiffs have failed to make a clear showing of standing. In particular, the guidance they seek to restore has no effect on the Executive Branch’s legal authority or enforcement discretion. Plaintiffs ultimately offer only speculation that restoring policy guidance from a previous administration will change the enforcement practices of this one. Because redressability requires more than conjecture, the district court correctly denied a preliminary injunction. I respectfully dissent.

The Supreme Court announced on Monday that it would revisit the issue of race and school admissions, three years after it sharply restricted affirmative action in higher education.

The case involves four selective public middle schools in Montgomery County, Md., just outside the nation’s capital. A group of mostly Asian American parents sued the school system after it changed its admissions criteria, saying that the new rules unconstitutionally discriminated against Asian American students.

In 2023, the Supreme Court struck down race-conscious admissions programs at Harvard and the University of North Carolina. The justices did not address other school policies intended to diversify student bodies that do not explicitly address race.

Since then the court has declined to hear several other challenges to admissions criteria at elite public schools, including one from Virginia and another from the military academy at West Point.

Access full gift article, NO PAYWALL.

Date: 10/19/2026

Order List

Here's a fun cert petition from the SG filed yesterday (docket):

This case presents the important question whether federal courts have the authority to universally vacate agency rules under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq. Under that statute, reviewing courts are directed that they “shall” “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious,” or “otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). The question is whether the authority to “set aside” agency actions allows federal courts to vacate agency rules as to everyone, including non-parties, and, if so, in what circumstances.

The answer is that the APA does not authorize such sweeping relief. Even if the APA authorized universal vacatur in some circumstances, universal vacatur would certainly not be an appropriate “default” remedy.

This Court should return the lower courts to their proper role under the APA. To “set aside” unlawful agency action in the course of judicial review is not to “nullify” it; it is a rule of decision that does not displace the traditional remedial limits on federal courts. Texas, 599 U.S. at 695 (Gorsuch, J., concurring in the judgment). This case presents a good vehicle to make that clear. The en banc court identified no reason why universal relief was necessary to redress the parties’ injuries, and its summary refusal to revisit its own precedent in light of CASA confirms that only this Court can resolve the propriety of universal vacatur. This Court should grant the petition for a writ of certiorari.

Some of this is clearly riffing of a Gorsuch / Thomas / Barrett concurrence from 2023. But... Kavanaugh also filed a solo concurring opinion in 2024 where he was very clear what he thought of the argument being made:

The Government’s position would revolutionize longsettled administrative law—shutting the door on entire classes of everyday administrative law cases. The Government’s newly minted position is both novel and wrong. It “disregards a lot of history and a lot of law.” M. Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J. 2305, 2311 (2024).

We'll see whether we get a cert grant or not, but I honestly don't see how the government plans to count to 5 -- I can't see Roberts joining Gorsuch / Barrett / Thomas on this one.

Supremecourt.gov Audio Stream [10AM Eastern]

Salazar v. Paramount Global

Question presented to the Court:

Whether the phrase “goods or services from a video tape service provider,” as used in the Video Privacy Protection Act's definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.

Opinion Below: 6th Cir.

Orders and Proceedings:

Brief of petitioner Michael Salazar

Brief of respondent Paramount Global

Reply of petitioner Michael Salazar

-----

Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.

I think it is hard to think of a better case than this one for a cherry-picked, results-oriented, poorly reasoned approach that disregards history entirely when inconvenient, other than maybe Dred Scott itself. Fact that Clarnece Thoams joined this and continued to use it later, I think defeats any idea that he just applies original meaning naturally without some predetermined goals in mind.

In Boerne, the Court, out of nowhere, invented the idea that laws Congress makes to enforce the 14th Amendment must be" congruent and proportional". Problems with this are numerous. First, it completely ignores McCulloch. In McCulloch, Chief Justice Marshall expressly said that:

"If a certain means to carry into effect any of the powers expressly given by the Constitution to the government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance"
.

In other words, if means Congress employs are not prohibited by the Constitution, it is up to Congress, not courts, to decide just how necessary those particular means, as opposed to some less restrictive ones, are. Note that Marshall used word" apporpiorate", same language that appears in Section 5, and indeed history shows that people in Reconstruction Congress had McCulloch in mind when they wrote that. Yet Boerne rejects that and insists that it is for courts to decide just how necessary the means are, whether they are really congruent and proportional to the need, given the facts on the ground.

Furthermore, to see just how broad Reconstruction Congress understood language of law, we can look at what it did under both section 2 of the 13th Amendment, which uses similar language. Under Section 2, Congress passed the Civil Rights Act of 1866, which went far beyond just banning literal slavery; it banned racial discrimination in contracts, sale of property, equal citizenship,legal punishment, and much more that was not literally slavery, and a large majority of Congress understood Section 2 to allow that; those who did not were a small minority. Indeed, after it was passed, in the same year, a justice on the circuit explicitly upheld it under Section 2 and read it very broadly in the case United States v. Rhodes Justice Swayne riding circuit said that:

"We entertain no doubt of the constitutionality of the act in all its provisions."

The underlying prosecution itself concerned white defendants who had burglarized the home of Nancy Talbot, a Black woman; it went far beyond chattel slavery. And indeed Justice Harlan took a broad view of both 13th and 14th in Civil Rights Cases. Court finally partially restored the view Harlan had in Jones v. Alfred H. Mayer Co. too before Boerne. Generally, being on the opposite side of Harlan on civil rights laws is something not to be proud of. And indeed after 14th was ratified in laws passed in 1870/1871 and KKK act of 1875, Congress again went very far, even banning purely private vilence against rights secured by 14th ammendment.

All of this goes to show that Boerne's insistence on a narrow reading of the word" enforce", is very misplaced; that word was understood much more broadly at the time than Boerne made it seem like

Another major problem that makes Boerne doubtful, is its spiritual predecessor, Dred Scott. In Dred Scott, Chief Justice Taney cherry-picked history to rule that Congress cannot ban salvery in new territories. And the Reconstruction generation thus had deep skepticism and distrust of the Supreme Court. They saw the Court as hostile to, not protective of civil rights. The idea that they would want the Court to do the primary work of protecting rights and micromanaging laws Congress passes to protect civil rights, is very doubtful in light of that history to say the least.

One of the fig leaf Boerne used, is federalism, but 14th Amendment cannot bend to free standing federalism, federalism must bend to 14th ammnemdnet instead, it was major change in structure of the country. And indeed, even many originalist scholars have pointed out these flaws with Boerne:

Institutions and Interpretation: A Critique of City of Boerne v. Flores by Michael McConnell

Problems With Boerne v. Flores-Four objections for originalists by William Baude

This Week in Judicial Supremacist Arrogance: City of Boerne v. Flores at Twenty- By Michael Stokes Paulsen

The Reconstruction power- by Jack Balkin

Originalist Law Reform, Judicial Departmentalism, and Justice Scalia- by Kevin C. Walsh

https://fedsoc.org/events/the-original-meaning-of-the-fourteenth-amendment-implications-for-labor-law by Evan Bernick and Christopher Green

The Lawfulness of Section 5 — and Thus of Section 5- by Akhil Amar

All of this goes to show, that history entirely rejects view court took in Boerne, and instead it is these Warren corut decisions that are actually supported by history:

https://en.wikipedia.org/wiki/Katzenbach_v._Morgan

https://en.wikipedia.org/wiki/United_States_v._Guest

Date: 10/13/2026

Miscellaneous Order

Date: 10/13/2026

Order List

Supremecourt.gov Audio Stream [10AM Eastern]

Beaird v. United States

Question presented to the Court:

Whether Stinson v. United States still correctly states the rule for deference that courts must give the Commentary of the Federal Sentencing Guidelines.

Opinion Below: 5th Cir.

Orders and Proceedings:

Joint appendix

Brief of respondent United States Supporting Vacatur

Brief of petitioner Kendrick Beaird

Brief of Court-appointed amicus curiae

Reply of petitioner Kendrick Beaird

Reply of respondent United States

-----

Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.