The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.Since our last post, the Supreme Court has been rather restrained at working through relists. This week, the justices acted on only one relisted petition, Walters v. Coleman, in which the Commonwealth of Virginia seeks reversal of a decision by the U.S. Court of Appeals for the 4th Circuit granting habeas relief to a prisoner. The court made short work of the petition: the justices granted, vacated, and remanded for further consideration in light of Clark v. Sweeney, where the court recently reversed the 4th Circuit for the same basic mistake – giving habeas relief based on a theory the prisoner had not actually presented. In Walters, that meant no extended engagement with the grisly facts of that case or the 4th Circuit’s 124-page effort to order resentencing, just a brisk reminder that federal courts are supposed to decide the issues the parties themselves present.Now on to new business. There are 108 petitions and applications on the docket for this week’s conference. Two are being considered for a second time. Both involve the same lawyers: Skadden and the Office of the Solicitor General.Is a person’s race relevant to whether they have been “seized” by police?United States v. Carter asks whether race can be a relevant factor in the Fourth Amendment’s “free to leave” test for determining whether a police encounter constitutes a seizure – and whether the answer can turn on judicially attributed assumptions about how members of a particular racial group perceive law enforcement. Officers from the District of Columbia Metropolitan Police Department’s Gun Recovery Unit in plain clothes and tactical vests and carrying visible firearms approached respondent Donte Carter on a sidewalk in Washington, D.C. One officer asked Carter whether he had a gun; Carter twice lifted his shirt to show he didn’t. The officer then asked Carter to “hike his pants,” which Carter did – at which point another officer noticed a gun-shaped object in Carter’s groin area, leading to a frisk and the discovery of a .40-caliber pistol that had been stolen from an FBI agent’s car. Carter was convicted on eight firearms and theft counts.The District of Columbia Court of Appeals (the high court of D.C., not the federal appellate court it is often confused with) vacated those convictions, holding that the “hike your pants” request had amounted to a Fourth Amendment seizure occurring before the officers had developed reasonable suspicion. The DCCA held that its precedent required it to assess the encounter through the eyes of a reasonable person sharing respondent’s “racial status,” concluding that “black Americans like [Carter] are ‘especially distrustful of law enforcement’” and thus “‘less likely’ than other people ‘to terminate a police encounter’ due to skepticism that any attempt to exercise their constitutional rights will be respected,” such that a Black man in Carter’s position would have felt compelled to comply where others would not. Judge Roy McLeese concurred in the judgment to note that he had previously “expressed uncertainty” as to whether race could permissibly be considered this way, but that court’s established precedent now required him to.The United States petitions for certiorari, framing the DCCA’s rule as making the same police conduct a Fourth Amendment seizure for one racial group but not another – a result it argues conflicts with the Fourth Amendment’s objective “reasonable person” standard, which “does not vary with the state of mind of the particular individual being approached” according to 1988’s Michigan v. Chesternut, and which the government argues also conflicts with the equal protection guarantee’s rejection of judicial presumptions about how all members of a racial group think. Additionally, the government points to decisions of the U.S. Courts of Appeals for the 4th, 10th, and 11th Circuits and the Iowa Supreme Court rejecting race as a factor in the seizure analysis.Carter counters that the government’s framing misreads the DCCA’s decision, which it says rested on a finding that any reasonable person – not just a reasonable Black person – would have felt unable to terminate the encounter; that the controlling precedent is 1980’s United States v. Mendenhall, which Carter argues already holds race is “not irrelevant” in a seizure analysis (there concerning whether a Black woman would have “felt unusually threatened” by “white male” DEA officers who stopped her) and which the government notably does not ask the court to overrule; that the circuit split is overstated; and that the case is a poor vehicle because the DCCA’s race analysis was not necessarily outcome-determinative. The government replies that Mendenhall discussed race in connection with consent to a police request, not whether a seizure occurred, and that the D.C. court “factor[ed] in” Carter’s status as a Black man in its holding.A government petition with a credible split and a question about the role of race policing is a combination that is practically guaranteed to attract the justices’ attention.Wiretapping and the clean hands problemThe facts of Grayson v. United States read like a movie script that was sent back for a rewrite on grounds of implausibility. Petitioner Ashley Grayson, a Dallas social-media influencer who offered credit-repair services, became embroiled in a dispute with Olivia Johnson, a Memphis influencer and hairstylist, after Grayson bought a house for Johnson’s mother but kept the deed in her own name. According to trial evidence, Grayson later asked Johnson to kill three people who had criticized her online, offering $80,000 and later paying $10,000 after Johnson falsely claimed that one target’s house had been shot up. Johnson, who said she never intended to commit the murders, secretly recorded a FaceTime call with Grayson, allegedly both to gather evidence and to gain leverage in the housing dispute.After the FBI brought charges, Grayson moved to suppress the recording under 18 U.S.C. § 2515, Title III of the Omnibus Crime Control and Safe Street Act of 1968’s broad exclusionary rule, which provides that “no part of the contents” of an unlawfully intercepted wire or oral communication “may be received in evidence in any trial, hearing, or other proceeding” before any court “if the disclosure of that information” would violate Title III. The district court denied suppression under the U.S. Court of Appeals for the 6th Circuit’s 1995 decision in United States v. Murdock, which recognizes a “clean hands” exception that permits admission of illegally intercepted evidence when the government “played no part in the unlawful interception.” The 6th Circuit affirmed, saying Grayson “may be correct” that the recording was unlawful, but that “the legality of the recording has no bearing on its admissibility” under Murdock. At the same time, the court suggested it had its doubts about Murdock’s correctness, noting that the decision relied on (now disfavored) legislative history and Grayson had the better of the textual argument. But hey, it was bound by circuit precedent.Grayson’s petition says the 6th Circuit stands alone against the U.S. Courts of Appeals for the 1st, 3rd, 4th, 8th, and 9th Circuits, plus the Massachusetts Supreme Judicial Court, all of which reject any clean-hands exception to Title III’s suppression rule. As though an influencer-versus-influencer murder-for-hire case wasn’t weird enough, here’s another twist: the government agrees the 6th Circuit was wrong and agrees there’s a circuit split, but still asks the court to deny review – or, at most, grant, vacate, and remand in light of its position – because the issue arises rarely, the government says it will not rely on Murdock going forward, and any error was harmless given Johnson’s testimony, text messages, surveillance footage, Grayson’s own call to the FBI, and other evidence. Grayson replies that those are arguments for remand, not arguments that support denying cert. The 6th Circuit panel was bound by Murdock, the full court declined to rehear the case as a full panel, and a GVR would merely send the case back to a court whose binding precedent remains wrong.Grayson may yet pull out a grant. But I’ve been in precisely this position before (involving the 6th Circuit no less) in a Speedy Trial Act case and the court GVR’d in light of the government’s confession of error, notwithstanding my rage-filled reply brief that argued (persuasively, if you ask me) that a grant was still warranted. The temptation to just GVR may be irresistible where, as here, the 6th Circuit is the lone outlier.That’s all for this week. Check back Monday to see whether the court serves up some grants or just another round of relist purgatory.New RelistsGrayson v. United States, 25-851Issue: Whether 18 U.S.C. § 2515’s exclusionary rule, which provides that “no part of the contents” of an intercepted communication “and no evidence derived therefrom may be received in evidence in any trial, hearing, or proceeding” before any state or federal court or governmental body “if the disclosure of that information” would violate Title III of the Omnibus Crime Control and Safe Streets Act of 1968, contains an unwritten clean-hands exception.(Relisted after the June 4 conference.)United States v. Carter, 25-885Issue: Whether perceptions of law enforcement that a court attributes to a particular racial group are a relevant factor in the Fourth Amendment analysis of whether a member of that group has been seized.(Relisted after the June 4 conference.)Returning RelistsGator’s Custom Guns, Inc. v. Washington, 25-153Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Duncan v. Bonta, 25-198Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Viramontes v. Cook County, 25-238Issue: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)National Association for Gun Rights v. Lamont, 25-421Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Grant v. Higgins, 25-566Issue: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)City of Los Angeles v. Estate of Hernandez, 25-53Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Saldano v. Texas, 25-5749Issue: (1) Whether the Texas Court of Criminal Appeals' creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner's Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.(Relisted after the Mar. 20, Mar. 27, May 28, and June 4 conferences.)Alabama v. Sykes, 25-847Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Alabama v. Powell, 25-848Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)E.D. ex rel. Duell v. Noblesville School District, 25-906Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Smith v. Kind, 25-943Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, May 28, and June 4 conferences.)McCarthy v. Hernandez, 25-748Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.(Relisted after the Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)Dershowitz v. Cable News Network, Inc., 25-770Issues: (1) Whether a defendant’s systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice under New York Times Co. v. Sullivan, sufficient to survive summary judgment; (2) whether the actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify Sullivan’s clear-and-convincing and burden-of-proof evidentiary standards.(Relisted after the May 21, May 28, and June 4 conferences.)Newberry v. Texas, 25-862Issues: (1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated Brady v. Maryland by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.(Relisted after the May 28 and June 4 conferences.)Genalo v. Black, 25-886Issues: (1) Whether there is a point at which an alien’s detention under Section 1226(c), pending a decision on whether he is to be removed, becomes “unreasonably prolonged,” such that due process requires a bond hearing; and (2) whether, if so, due process in such a bond hearing requires placing the burden on the government to justify the alien’s continued detention by clear and convincing evidence.(Relisted after the May 28 and June 4 conferences.)Guerrero v. Johnson, 25-1003Issue: Whether a claim relies on a “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.(Relisted after the May 28 and June 4 conferences.)Kian v. Florida, 25-6623Issues: Whether the petitioner was deprived of his right, under the Sixth and 14th Amendments, to a trial by a 12-person jury when the defendant is charged with a serious felony.(Relisted after the May 28 and June 4 conferences.)

Last December I published a column entitled “Party presentation: a mysterious new rule?”, addressing a summary reversal in a criminal case, Clark v. Sweeney. On May 26, the court summarily reversed the lower court in another case, Margolin v. NAIJ, citing the same “party presentation principle,” which it now referred to as a “rule.” Then two days later, Justice Amy Coney Barrett, writing for a 6-3 majority in a criminal sentencing case, Fernandez v. United States, relied on a different idea, an “anticircumvention principle.” (Notably, Steve Vladeck this week wrote about the court’s confusing use of yet another principle, the “Purcell principle,” related to election law.)Where do these principles come from? No constitutional or statutory text expresses them. Are they “rules” that dispositively decide cases, or merely standards subject to court discretion? Given their apparent case-dispositive importance, the court should precisely describe and define these ideas, and particularly if employed as “rules” to justify keeping a person in prison.The court’s recent use of “principles” to decide criminal casesBack in November in Clark v. Sweeney the court reversed a habeas decision of the U.S. Court of Appeals for the 4th Circuit that had ordered a new trial in a second-degree murder case. Without noted dissent, the court wrote that the circuit had “departed dramatically from the principle of party presentation” by “relying on a claim that Sweeney never asserted” and “that the State never had the chance to address.” This “principle” appears to rest on the idea that courts should not raise new issues not actually presented by the parties. As I noted last December, the court did not address the actual legal reasoning of the 4th Circuit but instead reversed merely on this procedural point. I urged the court to explain exactly what the principle was and whether it has exceptions. I noted that law and history are full of examples where judges have gone outside the parties’ arguments, for example to correct “miscarriages of justice,” and that this can correct for, frankly, inept lawyering. If “no going beyond party presentation” is now a dispositive “rule,” I noted that it has no textual support in either a statue or Article III of the Constitution (which extends to all federal questions).Six months later in Margolin the court again wielded this apparently powerful tool, to summarily reverse the 4th Circuit (a favorite target these days) for “violat[ing] the principle of party presentation” by relying “on an issue the parties had not raised” and “without giving either side a chance to address its theory.” Directly invoking Clark v. Sweeney, the court now described this principle as a “rule,” quoting Justice Antonin Scalia from 34 years ago.At the tail end of that solo concurrence, Scalia had claimed that, absent this idea, our legal system would be an “inquisitorial” one. But there is nothing “inquisitorial” about judges trying to find the correct answer even if lawyers have not. And, in any event, in the very next sentence, Scalia noted that he was rejecting the principle in that case and basing his disagreement on an argument not raised by the parties. Here are two other points about the “principle” of party presentation. First, in support of it, the court has now repeatedly quoted Justice Ruth Bader Ginsburg’s opinion in 2008’s Greenlaw v. United States, in which the justice blanketly stated that “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” While invoking Ginsburg’s support for the idea may shield it from dissent from the three “liberal” justices, Ginsburg herself noted in a separate case that the principle was “not ironclad” and subject to “appropriate” exceptions (although she did not describe what these might be). Meanwhile, in his dissent in Greenlaw, Justice Samuel Alito made clear that “we should entrust the decision to initiate error correction to the sound discretion of the courts of appeal.” That echoed Alito’s statement at his confirmation hearing that the “task of the judiciary is to apply principles that are in the Constitution, and not make up its own principles.” But where was Alito’s voice in Clark or Magolin?Second, if this “principle” includes a sub-principle that a court must first give the parties a chance to address a new idea that interests the court – as both Clark and Margolin appear to imply – why is the remedy to reverse the lower court’s judgment in its entirely rather than to remand with instructions to allow the parties to respond to that new point? Or – as Justice Clarence Thomas once suggested when applying another “principle of policy,” stare decicis – why shouldn’t the court address the legal merits of a decision they do not like, rather than relying on an atextual “principle” of uncertain scope as well as origin? (Indeed, that is exactly what Thomas, joined by Justice Amy Coney Barrett, did in a separate concurrence in Margolin.) But, alas, the court now appears to be silently using the party presentation principle to vacate and remand even more cases. On June 8, for example, the justices issued a two-sentence order remanding another 4th Circuit habeas case (Walters v. Coleman) with no explanation other than “for further consideration in light of Clark v. Sweeney.”Finally, on my more general inquiry regarding “principles” being used as dispositive rules, two weeks ago the court affirmed the denial of a sentencing reduction in Fernandez v. United States that courts may not consider, as an “extraordinary and compelling” reason under the federal compassionate relief statute, a claim of potential innocence presented 20 years later. The court accepted the government’s argument that such a generalized approach to compassionate release would conflict with the more specific federal statute that allows federal inmates to collaterally attack their convictions even after being affirmed on direct appeal. To support its ruling, the majority referred (in footnote three) to “an anticircumvention principle” which it drew out of two prior decisions. That idea is that parties may not use a general statute to “‘impermissibly circumvent’ the specific design” of another statute. While Justice Sonia Sotomayor, joined by Justice Elena Kagan, concurred on a much narrower ground, Justice Ketanji Brown Jackson dissented, arguing that the court “d[id] not explain” the precise meaning and limits of this principle.Are principles “rules,” or just guidelines? What are their precise definitions?An anticircumvention principle, like one of party presentation, might well be a sensible guideline for judicial administration. But if principles are going to be used as dispositive rules, to reverse judgments without looking at their merits, then lower courts as well as litigants need further clear and precise statements from the justices. They need to know what and when exceptions should be applied, and whether review will be for abuse of discretion (that the lower court decision was plainly erroneous) or some stricter standard. This is particularly true when dispositive principles, even if longstanding (like stare decisis) and sensible, are drawn from judicial experience and judgment but without textual endorsement in a statute or a congressionally-approved federal rule. To paraphrase Alito, again, the “task of the judiciary is to” provide clear guidance and, in general, stick to Constitutional and statutory directions, “and not make up its own principles.” For starters, a rule of party presentation ought to include a strong guideline that a court must, before a final ruling, give the parties a fair opportunity to address new theories that have not been previously raised. This is consistent with the court’s own practice of occasionally directing parties to address questions not previously presented in a case (Brown v. Board or Education, which was reargued after the court presented its own new question, is one such instance). Significantly, once such an opportunity has been provided and a court then rules, the need for an unwritten principle disappears. Instead, a reviewing court can directly evaluate the legal merits of the final ruling, whether or not a ground was raised early or “late” in the case.Indeed, it might be a fair general rule – general, not iron-clad – for appellate courts to decline from reviewing legal arguments which were not even hinted at by the parties. That idea is reflected in the court’s own Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court.”) Although such a rule may make sense for appellate courts, however, it is far less clear why this should be the case at a trial court level, where the parties as well as the judge are confronting difficult problems for the first time. And in any case, the Supreme Court ought not use an undeveloped and nontextual principle to avoid exposing internal division on the legal merits presented.As for anticircumvention, as Sotomayor’s and Jackson’s separate Fernandez opinions explain, when there are textual statutory directions competing for attention – in that case, a direction that collateral attacks be governed by strict habeas rules, versus a direction that district judges may reduce sentences for “extraordinary and compelling reasons” – the majority needs to explain more precisely the rules for decision between the two. Barrett wrote for the majority that the two statutory directions could be construed “in harmony” rather than “at cross-purposes,” while Jackson wrote that “one man’s collateral attack is another man’s compelling bid for compassion.” But neither explained precisely how future courts should resolve such disagreements.Judicial “principles” more broadlyNone of this is to say that such principles are groundless or invalid. Instead, their application simply needs more clear explanation and definition. Judicially developed “principles” developed to intelligently manage litigation have a deep historical pedigree. Indeed, Harvard Law Dean James Thayer in 1893 described the principle of judicial review itself, endorsed in Marbury v. Madison in 1803, as one of judicial “administration.” So while the concept of a legal principle may be something less than an iron-clad rule, it should be more precisely described as stronger than just advice. Undoubtedly, accepted legal principles (like judicial review) are critical for our legal system. And not everything has to be endorsed in a statute – courts need stable rules of administration which (as I have suggested) lie within their authority as an independent branch of government.To be fair, the branch of legal philosophy surrounding “principles” – perhaps best associated with Ronald Dworkin and his “Model of Rules,” as well as Herbert Wechsler’s seminal lecture “Toward Neutral Principles of Constitutional Law”– is far too “big” for a short SCOTUSblog column. And I risk drowning in debates well out of my depth. But today I am calling out what I see as a pattern of the court applying atextual “principles” to decide cases without precise definition and without explanation for why they are doing so. If these principles are going to be case-dispositive rules, then the court should say so. And if there to be exceptions – as Ginsberg and Scalia both agreed there must be – then the court should say that, too, and give some guidance as to when. The current pattern of case-dispositive principles is especially disturbing when done summarily, without full briefing and oral argument – a practice which might itself be thought to transgress fair “party presentation” rules. To some extent this tracks the critique of the “shadow docket” more generally, criticisms which the justices are beginning to hear and respond to. I urge them to also do so when applying “principles” to dispositively affect not only individual liberty but also our societal interest in having a stable and predictable system of criminal law.PS: For an interesting conversation about a different principle, an Eighth Amendment (among other sources) “principle of anti-ruination,” catch the last 32 minutes of June 8’s Strict Scrutiny podcast, discussing Professor Judith Resnik’s new book Impermissible Punishments.

Late last month, the news site NOTUS reignited the perennial debate about Supreme Court recusals when it reported that Justice Samuel Alito’s son, Philip Alito, “quietly landed a political appointee job as a lawyer in the Treasury Department early last year.” The article claimed that the younger Alito’s job raised questions about his father’s ability to fairly weigh cases tied to the Treasury Department and prompted a flurry of social media posts about the court’s ethics rules.Alito also faced scrutiny two years ago, when The New York Times reported that an upside-down American flag – a symbol sometimes used to show support for the protesters who stormed the U.S. Capitol on Jan. 6, 2021 – had flown outside his home in Alexandria, Virginia, after the 2020 election. Although Alito said his wife, Martha-Ann, was responsible for the flag, Democratic lawmakers and ethics experts called on the justice to recuse himself from cases addressing the events of Jan. 6 and the outcome of the 2020 election. He did not, but, according to a book released this spring, Alito did give up authorship of the court’s opinion in one such case, in which the court held that Jan. 6 defendants were being improperly charged with obstruction of an official proceeding.This is not the first time a justice has navigated perceived or real ethical issues related to their loved ones’ actions. As Gabe Roth, the founder and executive director of Fix the Court, noted in a Bloomberg column about the backlash sparked by NOTUS’ story, Chief Justice John Roberts has faced calls to “disqualify himself from cases argued by attorneys from the firms where [his] wife Jane, a legal recruiter, has made placements.” And Justice Clarence Thomas, like Alito, has been confronted with recusal demands over his wife’s vocal support for conservative organizations and causes.A surprise retirementPerhaps the most famous example of a justice who faced an ethical challenge created by a family member is Justice Tom C. Clark, who was on the court from 1949 until 1967. Clark, who spent the 12 years before he became a justice working for the Justice Department, was appointed by President Harry S. Truman after serving as Truman’s attorney general. While Justice Clark was working at One First Street, his son, Ramsey Clark, was following his father’s footsteps to the halls of power. After receiving a law degree in 1950, the younger Clark joined his father’s old law firm in Dallas. In 1961, he moved to the Justice Department as assistant attorney general of the Lands Division, serving in that role until 1965, when he became deputy attorney general.In the fall of 1966, Ramsey Clark’s boss at the Justice Department, U.S. Attorney General Nicholas Katzenbach, left for the State Department, and Clark was picked to be acting AG. About five months later, in March 1967, President Lyndon B. Johnson announced he would appoint Clark to stay in the role, and Justice Clark surprised the country with an announcement of his own: He would be retiring from the court in order “to avoid any hint of impropriety,” as Time magazine put it.In a 1969 interview for the Lyndon Johnson Presidential Library, the retired justice explained his decision to leave the court, noting that, even before Ramsey Clark joined the Justice Department, he was aware of judges who heard cases involving their sons and had come to believe such a situation “made a bad impression.” At the Supreme Court, Clark explained, more than half of the cases involve the Justice Department in some way, so it would have been nearly impossible to avoid weighing in on disputes that Ramsey Clark had worked on as attorney general. Clark added that “the appearance of justice, I think, is more important than justice itself” and that “judges owe a higher degree of not only duty but of public appearance than the average person.”Recusal rulesClark’s decision to retire was his own, and legal experts disagreed at the time about whether it was required. “Some observers had thought that Justice Clark could remain on the bench, because the Attorney General rarely signs documents that go before the Court,” The New York Times reported in March 1967. (The article noted that the conflict of interest is clearer with a solicitor general, “who represents the Justice Department before the Court,” which explains why Chief Justice Charles Evans Hughes’ son resigned as solicitor general when his father was appointed.)Under federal law, a justice is required to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” although there is no apparent enforcement mechanism. The statute highlights a family member’s involvement in a case as one of many potential reasons for recusal, but it doesn’t offer an exhaustive definition of this. It states that justices should not hear cases in which they, their spouse, or a “minor child residing” in their household “has a financial interest” or “any other interest that could be substantially affected by the outcome of the proceeding.” It also says that recusal is required when justices, their spouse, “or a person within the third degree of relationship to either of them, or the spouse of such a person” is a “party to the proceeding,” is “acting as lawyer” in the case, is a potential “material witness,” or has an interest known to the justice that stands to be “substantially affected” by the outcome of the dispute.It’s clear under this law that a justice would be expected to recuse himself if his son were to argue a case before the court, but, as the debate over Clark’s retirement illustrates, it’s less clear if having a family member serving in a prominent role in the executive branch means that a justice would not be able to hear cases involving any part of the administration.In November 2023, after a series of scandals related to Alito and Thomas taking – and then not disclosing – luxury trips with people involved (or later involved) in Supreme Court cases, the court built on the federal law regarding recusals with a formal code of conduct, which uses much of the same language concerning potential conflicts of interest involving family members. Under the code, justices are required to recuse themselves from “a proceeding in which the Justice’s impartiality might reasonably be questioned.” The code defines this as a situation in which “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”However, as SCOTUSblog reported when the code of conduct was released, it too “does not provide for any mechanism for its enforcement,” meaning that it is up to the justices to determine what to do when a potential conflict of interest falls into a grey area. And in making that determination, the justices may err on the side of hearing the case, because, as the code says, “[t]he loss of even one Justice may undermine” the court’s work.In a statement to NOTUS about Philip Alito’s role at the Treasury Department, the Supreme Court’s public information officer, Patricia McCabe, shed some light on how the court has navigated potential ethics issues. Justice Alito did not recuse himself from this term’s tariffs cases, she explained, because Philip Alito “has not worked on any matter related to the tariffs imposed by the federal government.”In his Bloomberg column, Roth, who has often criticized the court’s approach to recusals, wrote that he understands this decision. “If a case where Phil had direct involvement ever did reach his father’s desk, I’m confident Alito would recuse. Why? Because he’s done it in the past. When Phil was working as an aide on the Senate’s Permanent Subcommittee on Investigations in 2016, one of its subpoenas was challenged all the way to the Supreme Court. As Alito’s colleagues dismissed the challenge, a court order stated that the justice ‘took no part’ in considering it,” Roth said.In any event, the ongoing debate over justices’ potential conflicts of interest is unlikely to vanish as long as confusion persists over how to apply and enforce the rules for recusal. 

Plus, a new book explores a little-known justice who ended up behind bars.

In 2018, Congress passed the First Step Act with rare bipartisan support. Hailed as “the most significant criminal justice reform bill in a generation,” the basic premise of the act was straightforward: Federal sentences had grown too harsh, and, not coincidentally, were imposed in racially disparate ways. Congress therefore concluded that many of the people serving these draconian sentences deserved a second chance. In the words of then-Chairman of the Senate Judiciary Committee Senator Chuck Grassley: The First Step Act “addresses unfairness in prison sentencing and revises policies that have led to overcrowded prisons and ballooning taxpayer expenses.” And as President Donald Trump declared when signing the act into law: “Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption.”Since then, the Supreme Court has done what it can to make the First Step Act smaller.Take 2023’s Pulsifer v. United States, where the court narrowed the act’s expansion of the federal “safety valve,” a provision of the act that allows sentencing courts to forgo imposing mandatory minimum sentences if defendants meet certain criteria. The majority read the provision to exclude a substantial class of defendants, which, as Justice Neil Gorsuch charged in his dissent, guaranteed that “thousands more people in the federal criminal justice system will be denied a chance—just a fair chance—at an individualized sentence.” Gorsuch made clear that this was so not because the statutory text demands it, but because the court adopted the government’s policy-driven argument for a narrower reading – one that limited district courts’ discretion to grant relief and curtailed the act’s overall reach.Then late last month the court decided two First Step Act cases involving compassionate release, which permits certain incarcerated individuals to seek early release or a sentence reduction based on “extraordinary and compelling reasons.” In both cases, the court once again limited the First Step Act’s reach, this time by cabining what qualified as “extraordinary and compelling.”In Rutherford v. United States, the question was whether prisoners serving sentences under the old “stacking” regime – where courts were required to impose mandatory minimums consecutively, dramatically increasing individuals’ sentences – could cite the resulting elimination of such “stacking” as grounds for compassionate release. Had Rutherford been sentenced today, his mandatory minimum would have been 14 years shorter than it was (in the companion case the court resolved, Carter v. United States, Carter’s mandatory minimum would have been 21 years shorter). The court held that such a dramatic disparity in sentence could not serve as a ground for compassionate release, reasoning that it was a backdoor attempt to make the First Step Act retroactive, when Congress intended the act to apply only prospectively. Justice Sonia Sotomayor retorted in her dissent that “nothing in the First Step Act specifically addresses what courts may consider when deciding whether a defendant is eligible for a sentence reduction.” As such, she continued, the majority opinion “conjure[d] categorical limitations” on the compassionate release provision that “neither Congress nor the [Sentencing] Commission imposed.”The same day, in Fernandez v. United States, the court held that serious doubt about a conviction’s integrity cannot qualify as an “extraordinary and compelling” ground for compassionate release either. This time, the court concluded that the result it reached was necessary to ensure that federal prisoners could not do an end run around the habeas statute, which specifically deals with prisoners’ abilities to challenge their convictions. Sotomayor, although concurring in the judgment, again accused the majority of “creating an atextual limitation found nowhere” in the act. In light of this, Justice Ketanji Brown Jackson dissented, and described the majority opinion as “an unnecessary rewriting of the statute Congress wrote and an unwarranted revision of the compassionate-release scheme Congress intended to establish.”So the First Step Act has been in effect for less than seven and a half years, and a sharply divided Supreme Court has already decided three cases limiting its reach. There are counterpoints. In Concepcion v. United States, decided in 2021, a 5-4 court held that district courts are allowed to consider intervening changes of law or fact when reducing a sentence under the act. And last term, in Hewitt v. United States, a 5-4 court held that the act applied to defendants who were sentenced before the act went into effect but whose sentences were then vacated after. But those decisions increasingly read like they are fighting the tide. (A further data point is coming soon, as the court will decide yet another First Step Act case, Maxwell v. Thomas, next term, on the ability of prisoners to transfer to a halfway house or home confinement earlier under the act.)Congress was not subtle about what it meant to do with the First Step Act. It wanted to reduce excessive sentences and expand the mechanisms for relief for those serving those harsh sentences. Yet the bulk of the court’s First Step Act jurisprudence is at war with that purpose, as the dissents in these cases explain in different ways. Certain members of Congress feel the same. As Senator Dick Durbin lamented after the court’s most recent rulings: The Supreme Court has “significantly weakened a landmark, bipartisan criminal justice reform law in defiance of Congressional intent.”The court’s neutering of a signature piece of federal legislation should give us pause. Congress barely legislates anymore. Yet the First Step Act passed with overwhelming bipartisan support. It reflected a considered congressional judgment that federal sentences had become too harsh and that the people serving them, who are disproportionately people of color, deserved a shot at relief. If there is a statute that embodies the democratic process deserving of respect, it is this one.And yet, in case after case, the court has whittled the act down, leaving thousands of its intended beneficiaries without the opportunity for relief that Congress thought they should have. And even though this court claims to be textualist, as the dissents in each of these cases make clear, none of the outcomes were compelled by the text. Instead, the court, in limiting the First Step Act, seems more driven by a general distrust of district courts and what they might to do with less-bounded discretion, and an overarching concern of the act becoming a “huge loophole” for the release of those who have been convicted of crimes – regardless if Congress has allowed for just that.That should worry anyone hoping for more ambitious criminal justice reform. If the court is willing to hollow out the popular piece of legislation that was the First Step Act, what happens when Congress tries something more sweeping and less bipartisan? The First Step Act was the easy case. The court’s treatment of it is not an encouraging sign for any attempt at a second step.