Lawyers for a group of transgender inmates in the custody of the Federal Bureau of Prisons urged the Supreme Court on Thursday to leave in place an order by a federal judge in Washington, D.C., that bars the BOP from enforcing a new policy on healthcare for transgender inmates that would prevent such inmates from obtaining (among other things) hormone therapy and “social accommodations” (such as makeup, wigs, and padding). Li Nowlin-Sohl, representing the inmates, told the justices that the Trump administration is asking the justices “to overturn a three decades-long status quo.”The Trump administration adopted the policy earlier this year. It followed a policy adopted in February 2025 to implement an executive order signed by President Donald Trump shortly after his second inauguration. That order directed the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”When it adopted the February 2026 policy, which the BOP said that it did “independently of” Trump’s Feb. 2025 executive order, the BOP also included an extensive administrative record and a 43-page memorandum in which it attributed the change from its prior policy to, among other things, “the latest scientific information.” Specifically, it said, its earlier policies had relied on recommendations by the World Professional Association for Transgender Health, but that group’s standards had been deemed “unreliable” and “unpersuasive” by prison administrators. Moreover, the BOP expressed concerns that providing access to procedures such as gender-transition surgeries could subject transgender prisoners to “attacks,” “raise fairness concerns,” and “breed resentment among other inmates.”Three transgender inmates went to federal court in Washington, D.C., seeking to file a class action lawsuit to block the enforcement of the policy. On Aug. 26, Senior U.S. District Judge Royce Lamberth issued his most recent order barring the BOP from implementing its 2026 policy, and on Sept. 18 a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the government’s request to pause Lamberth’s order.The Trump administration then went to the Supreme Court on Sept. 28, asking the justices to step in and block Lamberth’s order. U.S. Solicitor General D. John Sauer told the Supreme Court that the district court had “substitut[ed] its own policy judgment for that of the” BOP, “rel[ied] on evidence outside the administrative record, and fault[ed] the agency for following presidential directions.” Moreover, he added, the district court “also denied prison administrators the substantial deference they are due.”In their filing on Thursday, the inmates argued that the new policy fell short under the federal laws governing administrative agencies because the BOP had not provided a “reasoned explanation” for its decision. For example, Nowlin-Sohl wrote, the extensive record that the BOP had provided was “silent about BOP’s extensive experience providing” hormone therapy and social accommodations “and whether it supports” BOP’s conclusions that “this care is not medically necessary and poses security and administrative issues.” The record, the brief continued, is also “devoid of any evidence indicating whether BOP healthcare providers found this care effective, ineffective, or harmful to patients.”Moreover, the inmates said, the BOP had “cut off treatment that its healthcare providers had recommended for decades and replaced it with psychotherapy” and “psychotropic medications” – which “BOP’s Medical Director recognizes … treat co-existing conditions such as depression and anxiety, not gender dysphoria itself.” And the BOP’s failure to include “key evidence” in the record “make[s] it clear that the rationales were contrived to support the demand President Trump made in the EO.”Finally, the inmates told the justices that they will be permanently harmed if the district court’s order is paused. “Withdrawing care will cause significant changes to their bodies and put [them] and class members at serious risk of worsening gender dysphoria as well as other mental health symptoms including depression, anxiety, self-harm, and suicidality.”

If you read my columns closely, you know this: over the past two terms, 21 of the court’s 30 “pure” criminal law decisions have been pro-defendant or defense position. Eleven of 16 in the 2025-26 term, and 10 of 14 in the prior one. That’s 70%. Given a conservative court, does that stat surprise you? What justices are leading to these overall numbers, and who is leading the charge? Finally, does any of this suggest what we might look for in this term’s first criminal law case, Beaird v. United States, to be argued next Tuesday? Here are some further thoughts as we begin the 2026-27 term.My wild card theory and approach to criminal case resultsLast May, I described my “wild card” analysis for thinking about the current court. There are two generally conservative or “pro-government” votes on one side (Justices Clarence Thomas and Samuel Alito) and three generally “liberal” or “pro-defense” votes on the other (Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.). But in a nine-justice court, a position cannot “win” without five votes. So the four justices left in the “middle” – Chief Justice John Roberts, and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – are your wild cards. Each has been less predictable, in some cases, than the justices at either end of the spectrum. But to stick with the analogy (imperfect I know, Supreme Court cases are hardly a game), if some cards in the deck might be “wild,” you have to hope to draw some wild cards (justices) for your hand to win. In other words, to prevail with today’s court, an advocate must aim for those justices that might be in play.This short column can’t give you all the details of the criminal cases this term, but you’ll be able to review it in 50 pages of detail when my “Annual Review of the Supreme Court’s Term, Criminal Cases” booklet is published on the ABA’s Criminal Justice Section webpage later this month. Below are some facts and views I find interesting, especially when it comes to the wild card justices, when I examine the details of the criminal opinions and votes in all 16 “pure” criminal law cases from the recent term.Who is “the wild card justice” for criminal cases?When “counting to five” is the wild card goal for pro-defense criminal law advocates in a conservative-leaning court, looking at the 11 pro-defense decisions, and in particular the close ones (those decided 5-4 or 6-3) provides the best indicator of who the “wild card justices” are. For the five decisions that did not favor the defense position, four were decided 9-0 or 8-1, plus one 6-3 decision (Rutherford) in which the dissenting liberal justices’ votes did not affect the result, and all four wild card justices voted with Thomas and Alito. So my further analysis is focused just on the pro-defense rulings. Moreover, for purposes of today’s column, I focus more on the votes than on the substantive holdings.First, who authored the 11 pro-defense cases? Two (Pitchford and Ellingburg) were written by Kavanaugh and two (Rico and Hemani) by Gorsuch. Those two justices do not always agree, but they are clearly wild card justices who play a major, often dispositive, role in criminal cases. Authorship of five other pro-defense decisions was shared among the three liberal justices, and one was per curiam. That adds up to 10 of the 11. (The last decision that favored a criminal defendant – Wolford, a pro-gun possession case – was authored by Alito and might not necessarily be characterized as “pro-defendant,” see below.)Let’s move on. In addition to Gorsuch and Kavanaugh, Barrett voted with the pro-defense majority in eight of the 11 pro-defense cases. But she did not author any of them. She could be described as the dispositive 5-4 majority vote in Hamm, but her dissenting votes in the other closely-divided pro-defense decisions (Chatrie 6-3, Pitchford 5-4, and Bowe 5-4) make her more consistently less pro-defense (and also perhaps less interested in criminal law) than Kavanaugh or Gorsuch.Meanwhile, the chief justice, as I noted in July, wrote none of the pro-defense decisions, even though he voted silently with the majority in all but one. Instead, he assigned the writing of the court’s opinion in those cases to another justice. (The lone exception was Hamm, a one-line “dismissed as improvidently granted” 5-4 result where the chief just quietly noted his dissent.) I discuss below the unusual fact that the chief gave the responsibility for writing the opinion for the court to Kagan, in five of the 10 pro-defense cases. She is not generally a wild card, but I think she has become the “go to” justice to author criminal law decisions that require a careful majority approach, whether for a criminal defendant (for example, Chatrie) or not (for example, Case).Now let’s talk more specifically about the wild card influences on pro-defense cases. “Start with this” (as Gorsuch likes to say). As his book “Overruled” suggests, Gorsuch tends to favor people whom he thinks the government has treated unfairly. Hemani provides a great example: Gorsuch paints a very sympathetic picture of this occasional marijuana user to rule that his prosecution for possessing a gun goes well beyond what the Second Amendment allows. Meanwhile, Kavanaugh seems quietly interested in strict procedural fairness in death penalty cases (for example, Pitchford and Hamm this term, 5-4 decisions in which Kavanaugh was arguably the dispositive vote). It has also been noted that Kavanaugh also almost always pairs up with the chief justice. It’s my belief that, in criminal cases, the chief is content to follow his junior mentee’s lead, because the chief has bigger, non-criminal fish to fry (think striking down tariffs or preserving birthright citizenship). Given that, pro-defense advocates often “pitch” for the votes of Gorsuch and Kavanaugh.Only three of the pro-defense cases were decided 5-4 (Bowe, Hamm, and Pitchford). Here is where the wild card justices most matter – the “libs” need two more to get five. In two of the 5-4 pro-defense decisions (Bowe and Pitchford), Kavanaugh and the chief justice paired up to be the dispositive votes. Meanwhile, in Hamm, Barrett was a quiet but dispositive pro-defense vote (together with Kavanaugh). Because Hamm was a simple one-line “dismissed as improvidently granted” order, both Barrett’s vote, and the chief justice’s quietly noted dissent, might go “under the radar.”Of course, analysts must also consider the individual substance of each case. In Hamm, for example, the arguments turned on deeply complicated mathematical and science-based research and disputes, regarding how experts, and ultimately states, should determine whether a person is “intellectually disabled” (and thereby constitutionally barred from being executed). As Sotomayor pointed out in a lengthy concurrence, there was little or no good record below, or scientific agreement, on how to determine that. I think that flaw, as well as the intricate details of the science at issue, was attractive to a DIG vote by a careful proceduralist like Barrett.Meanwhile, in Pitchford, which involved a Batson challenge to racial juror strikes, Kavanaugh had written a law school note on the topic way back in 1989. The constitutional solution he wrote out for the majority in Pitchford is exactly what he had advocated after much thought 37 years earlier. Of course, every case has individual, unique aspects, and there are no failsafe indicators to predict or generalize perfectly in criminal cases overall. But tireless digging for nuggets like Kavanaugh’s law school note, and careful mining of details and the record as in Hamm, should be part – expensive and deeply time-consuming – of the Supreme Court wild card hunt.By the way, I will quickly concede that it is possible to argue with aspects of my analysis. For example, when discussing “pro-defense” rulings, some might just “throw out” the two Second Amendment decisions. In striking down two restrictive gun-possession laws, Alito and Thomas, who are not usually viewed as defense-friendly, voted for the criminal defense position (overall in Wolford, and as applied in Hemani). The liberal justices favor more restrictive gun laws, so were less sympathetic to persons convicted under such laws. (Moreover, their votes were not necessary for these two pro-defense decisions.)I questioned back in July whether criminal defense advocates want to re-define what liberal and conservative means in this (and other current) contexts. Professor Richard Re has recently made similar observations regarding other legal topics.Kagan has become the “go to” justice for criminal casesHere’s another surprising stat: of the 16 pure criminal law cases in this last term, Kagan wrote a third (okay, 31.25%) of them. Kagan had little or no criminal law experience prior to her nomination. Yet the chief justice, who was in the majority in 15 of the 16 pure criminal law decisions, chose Kagan among multiple colleagues to write the opinion for the court in five, a lot more than any of her colleagues. Some conservative wags have previously chided the conservative justices as ceding control to “the Kagan court.” Kagan’s persuasive powers, both in writing and in oral argument, have long been noted. But the court is still decidedly the chief justice’s. He has just made Kagan the “go to” justice in criminal cases – whether pro-defense or not.Three of the five decisions written by Kagan (Chatrie, Hunter, and Olivier) were “pro-defense;” the other two (Case and Abouammo) were 9-0 rulings against a criminal defendant. These last two cases were thus “easy.” Still, they required careful parsing, as well as succinct and stylish writing, to keep all the other justices on board. And even so, in Case (which involved an “emergency aid” exception to the Fourth Amendment’s warrant requirement), Sotomayor and Gorsuch added brief concurring opinions to address tangential (but not unimportant) points that Kagan undoubtedly had avoided because not all would agree with them.Kagan’s other two assignments, Chatrie (6-3) and Hunter (8-1, but with deeply divided concurrences splitting 3-3) were different. Chatrie, preserving Fourth Amendment protections for cell phone data despite users’ “agreeing” to share it with service provider data banks, was one of the most important decisions of the term, affecting tens of millions of people. As for the Hunter opinion and its divided concurrences in mid-June, I immediately described it as “the most important criminal case of the term.” Why would the chief choose to assign such important (as well as so many) criminal law writings to his more liberal colleague?Part of the rationale for assigning to Kagan is simply mathematical, with some attention to predicted ideological results. By an unwritten tradition, the chief wants his opinion assignments to come out evenly – that is, ending up with either six or seven majority opinions for the 58 authored majority decisions written by each of the nine justices. Roberts has called the predictive enterprise a bit like a “Rubik’s cube.” He knows that on the current court, Kagan will be in the minority in many controversial civil cases. So “the libs” have to get some assignments in “easy” criminal cases.But I don’t think that explains why Kagan got a third of the 15 criminal law opinions for the court. Jackson was assigned only two (Barrett and Villareal, both 9-0). Villareal, involving what a defense lawyer may do at trial, naturally drew on Jackson’s prior life as a defense attorney. And Kagan’s senior colleague Sotomayor received only one criminal law assignment (Bowe, a 5-4 split early in the term; frankly I wonder whether Sotomayor’s first draft might have actually lost some votes in that one, but that is a story for another day.) All of this is to say, math alone does not explain uneven assignments in criminal cases here.Instead, I think the assignment of criminal law opinions for the court to Kagan displays an unspoken recognition by the chief that she is an excellent writer and what I would call a persuasive “majority-assembler.” That is, Kagan writes very carefully, to capture votes (if not the full views) of as many of her colleagues on both sides of the popularly perceived ideological divide as possible. Hunter is a good example (and both Case and Chatrie are others). Based on careful writing and direct quotation from precedents, Kagan persuaded eight relatively dissimilar members of the court to agree that there is a “miscarriage of justice” exception to the enforcement of guilty plea appeal waivers. Kagan’s opinion hewed closely to precedent and used what I would frankly call vague or indefinite phrasing to capture the voters of justices on both sides of the ideological aisle. Only Thomas dissented.And yet once they read Kagan’s majority, six justices authored or joined concurring opinions, expressing close to opposite views as to what, exactly, the miscarriage of justice exception might reach. Gorsuch (a wild card, joined by Sotomayor and Jackson) wrote about various other situations he thinks Hunter might extend to (the entire guilty plea system?). In response, Kavanaugh (joined by Alito and Barrett) quickly circulated a one-paragraph responding concurrence, stating that he “respectfully disagrees” with Gorsuch. Kagan wrote almost nothing in response to the concurrences, and the chief stayed in silent agreement.Undoubtedly Hunter will generate much lower court variety. But Kagan’s vague (or more charitably, high-level and abstract) language kept eight voters together. The justice then succeeded in wending her way through a very tricky field to a truly unprecedented liberal view, nailing down a firm precedent with conservative as well as liberal justices in tow. Kagan’s opinion for the court in Chatrie is another example of the chief’s confidence in her and her ability to keep a majority in line while navigating controversial waters. She stuck to precedent (including major ones written by Roberts and former Justice Antonin Scalia), while both Gorsuch in concurrence and Alito in dissent expressed unhappiness with it.Finally, Kagan also got the assignment in two cases deciding against a defendant (Case and Abouammo). Even though – or perhaps because – these were unanimous, this may have been to to preserve the court’s unity against two criminal defendants.Given all this, I think Kagan is now the “go to” justice for difficult criminal cases on the court’s docket.What might we expect in the first criminal law argument of the term?Next Tuesday, Oct. 13, the justices will hear oral arguments about the federal sentencing guidelines, in Beaird v. United States. The case asks what is the right amount of deference to give to commentary published by the U.S. Sentencing Commission – and lower courts sentencing hundreds of federal offenders every day need guidance. Everyone agrees that some adjustment to a 1993 decision on the topic, Stinson v. United States, is needed in light of a 2019 plurality decision in Kisor v. Wilkie. The tricky question is how to phrase it. The solicitor general suggests that much deference should still “frequently” be given, while the public defender advocates “no deference,” or at least that this occur “rarely.” An amicus appointed by the court (Anthony J. Dick, a former Alito clerk) argues for “authoritative” deference and strategically invokes Loper-Bright on the topic of deference to agency policies. Whether Loper-Bright supports Dick or not, it is a topic that almost certainly will attract attention from the chief justice (its author) and Gorsuch (its prime advocate).So I think in Beiard the justices have an open field to try and construct a semantic description of deference that a majority can agree on. I don’t see any obvious pro-defense wild cards here – indeed, I am not sure there is really a pro- or anti-defense position here at all. Rather, I imagine the four wild card justices in the middle will try hard to find agreement.Interestingly, Kisor, the precedent most directly on point – but issued with four competing opinions, before Loper-Bright, and before Barrett and Jackson were there – was written by Kagan. The fight in Kisor was about what is called Auer deference to agency rules; Kavanaugh’s diplomatic concurrence in Kisor suggested “rigorous scrutiny” that is “appropriately deferential,” too ungainly (vague) I think to be adopted as a rule for lower courts. Jackson, the only justice to have previously served on the Sentencing Commission, will surely have questions. Argument is likely to be lively and full of hypotheticals ranging beyond the specific case at issue. Maybe a result will seem easy, but as in Hunter the justices are likely to disagree on the details. If the chief is looking for an author to write carefully and with style, to hold a fissured majority together, Kagan is a strong candidate.

Updated on Oct. 8 at 3:16 p.m. EDTThe battle over favorable advertising rates for political parties and joint fundraising committees returned to the Supreme Court on its interim docket on Thursday morning, just a little over a month after the justices temporarily paused a ruling by a federal court that had limited the rates to candidates for federal office. In a 15-page filing, U.S. Solicitor General D. John Sauer asked the court to block an order by the U.S. Court of Appeals for the 4th Circuit directing the Federal Communications Commission to decide by noon on Friday, Oct. 9, on a challenge to its “public notice” that would extend the favorable rates to parties and committees. Sauer wrote that the court of appeals had “seriously erred in trying to short-circuit the Commission’s deliberations.”On Thursday afternoon, Chief Justice John Roberts, who handles emergency applications from the 4th Circuit, granted Sauer’s request to immediately pause the lower court’s order while the justices consider the request. The order is now on hold “pending further order of the undersigned or of the Court.” Roberts also asked the challengers to respond by 5 p.m. EDT on Saturday. Under federal election law, candidates for federal office can purchase advertising time at preferential rates during the 45-day-period before the primary election and the 60-day-period before the general. On March 30, the FCC’s Media Bureau issued a “public notice” indicating that political parties and joint fundraising committees should also receive the favorable rates.Sen. Jon Ossoff of Georgia and three other Democrats who are candidates for the House or Senate went to the full FCC on April 29, asking it to review the public notice. Approximately six weeks later, when the agency had not yet acted on their request, the candidates went to federal court, where they argued that the public notice was inconsistent with federal election laws.A divided panel of the 4th Circuit agreed. Writing for the majority, Judge Robert King held that federal law is “unambiguous”: it gives the preferential rates only to a “candidate” for his or her personal use, which does not extend to a candidate’s “mere authorization of someone else’s use.”The National Republican Senatorial Committee and the National Republican Congressional Committee, which had joined the case, went to the Supreme Court in late August, asking the justices to intervene. They contended (among other things) that the 4th Circuit did not have the power to consider the candidates’ challenge in the first place because the public notice was merely a “staff-level” document “that is neither final nor an agency action” – an important distinction because the court only has the power to review “final orders of the Federal Communications Commission.”Ossoff and the other candidates urged the justices to leave the 4th Circuit’s ruling in place. They pushed back against any suggestion that they had asked the court of appeals to weigh in too soon. Federal law, they said, specifically envisions that federal courts of appeals can review agency actions like the public notice as long as the challenger has filed an application asking the FCC to review the action – precisely what the candidates have done here.On Sept. 4, the Supreme Court granted the committees’ request and put the 4th Circuit’s decision on hold to give the committees time to seek Supreme Court review. In a four-page, unsigned opinion, the court stressed that the committees were likely to prevail on their argument that the 4th Circuit did not have the power to review the public notice before the FCC had acted on the candidates’ petition for review. “The Communications Act … contemplates that an aggrieved party will file an application for review with the Commission, that the Commission will resolve that application by order, and that public notice of that order will issue before an aggrieved party may petition for further review in federal court. Because the candidates’ application for review was pending when they filed their petition for review,” the court wrote, “the Fourth Circuit likely lacked statutory jurisdiction to address their challenge.” Only Justice Ketanji Brown Jackson publicly dissented.When the case returned to the lower court, the candidates sought an order instructing the FCC to act on their petition for review of the public notice. A divided panel granted that request on Wednesday, directing the FCC to issue its decision by noon on Friday.The FCC came to the Supreme Court on Thursday morning, asking the justices to intervene. Sauer called the panel’s order an “‘egregious intrusion into the nation’s electoral process’” that “should not be allowed to stand.” The order is “inappropriate” in this case, he continued, because the candidates “delayed for months in seeking such relief” and because “judicial intervention at this late date could upend campaign-finance rules in the ‘critical weeks leading up to the midterms.’” Sauer also questioned any suggestion that the FCC has unreasonably delayed its action on the candidates’ petition for review. He noted that the FCC “is still awaiting public comments on a parallel application.”Sauer urged the court to issue an immediate administrative stay, which would put the 4th Circuit’s order on hold while the justices consider the FCC’s request. He also asked the justices to “make clear that the Fourth Circuit should not issue any further orders that require the Commission to review the Bureau’s notice, or that prevent the Bureau from implementing that notice, until after this year’s elections.”The National Republican Senatorial Committee and National Republican Congressional Committee filed their own application later on Thursday morning, seeking to pause the 4th Circuit's order. They told the justices (among other things) that, "[i]f the case for a stay was strong the first time around, it's open and shut now."

Before imposing a sentence on a federal criminal defendant, a district judge must apply the federal sentencing guidelines for the defendant’s offense and criminal history and take into account the sentencing range recommended by those guidelines, along with a host of other factors. In Beaird v. United States, which will be argued on Tuesday, Oct. 13, the Supreme Court will consider the degree of deference that courts owe to the commentary that the U.S. Sentencing Commission provides for applying the guidelines.Some backgroundMore than thirty years ago, in Stinson v. United States, the court drew upon precedent that analyzed the deference that courts owe to an agency’s interpretation of its own regulations and applied those standards to the commission’s commentary interpreting a sentencing guideline. The court held that commentary which “interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”More recently, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in a 5-4 decision, Kisor v. Wilkie, that courts must defer to an executive agency’s interpretation of its regulations, subject to a number of limitations, including that the regulation must be genuinely ambiguous on the question at issue.In Beaird, the question presented is whether Stinson still correctly captures the deference that courts must give to the guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.The sentencing issue in BeairdBecause Beaird will address a broad, general rule about when courts defer to the commission’s interpretations of guidelines, the specifics of Kendrick Jarrell Beaird’s case do not feature much in the briefs and may not in the oral argument or decision either. But as the court said in Kisor, “the facts and proceedings below at least show[] how the question presented arose,” making the issue before the court somewhat less abstract.In October 2022, officers saw Beaird point a firearm at another person in an abandoned fast-food restaurant. After arresting Beaird, officers found that his gun, a Glock, had a magazine capable of holding 17 rounds. Because Beaird had four prior felony convictions, he was charged with and pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). That offense is subject to the guideline in Section 2K2.1. Under Section 2K2.1(a)(3), the guidelines recommend a higher sentence if the defendant’s offense “involved” a “semiautomatic firearm that is capable of accepting a large capacity magazine.” The question then becomes whether a magazine that holds 17 rounds is a “large capacity magazine.” The text of Section 2K2.1 does not define that phrase, but the commentary to the guideline does, defining a large capacity magazine as including “a magazine … that could accept more than 15 rounds of ammunition.”The commission often provides a greater level of specificity like this in the commentary as opposed to the guidelines. And thus, here, the question about deference in Beaird boils down to whether a court should defer to the commission’s view that a magazine that holds more than 15 rounds is a “large capacity magazine.” Or to frame the issue in terms of Kisor, should the meaning of the phrase “large capacity magazine” be deemed ambiguous, raising an issue on whether a court owes deference to the commission’s view that a magazine holding more than 15 rounds qualifies? The guidelines and commentary raise countless issues like this across the range of federal criminal cases that courts handle.In Beaird’s case, the district judge followed the guidelines in finding that Beaird had a large capacity magazine, but also said that “even if the guideline range was not correctly calculated or applied correctly,” the court “would have imposed the same sentence” as the court explained at sentencing. Beaird’s sentence was affirmed in a brief opinion on appeal, which concluded that the guideline range was correctly determined and relied on prior precedent applying Stinson to interpret Section 2K2.1.Three views of deference to guideline commentaryBecause the solicitor general concluded that precedent from the U.S. Court of Appeals for the Fifth Circuit extended deference under Stinson too far, the government supported a remand. The Supreme Court therefore appointed an amicus to defend the judgment. Beaird, the government, and the amicus each offer the court a distinct position on Stinson’s vitality and breadth after Kisor.Beaird argues that courts should afford no deference to the commentary. The commentary either provides the best interpretation of the guidelines or not on his view.The government argues that Stinson properly understood is consistent with Kisor, which merely clarified some limits on courts’ deference to agency interpretations. But because the government contends that the lower court’s precedent ignored Kisor’s limits, the government supports a remand, even if under a correct application of Stinson, the result in Beaird’s case would not be different.The amicus for its part suggests that Kisor itself may have taken agency deference too far but also defends a broad reading of the deference required by Stinson.One point that Beaird emphasizes in seeking to reject deference under Stinson for the guidelines commentary across the board is that the commentary would alter criminal punishment, which regulations (as opposed to statutes) generally are not themselves meant to accomplish. In seeking to limit deference, he also draws upon doctrines specific to the criminal context that protect criminal defendants, such as the rule of lenity. The rule of lenity requires adopting an interpretation that favors a defendant when a statute that defines criminal conduct or punishment is grievously ambiguous.The parties and amicus also confront some other acknowledged features of the guidelines that distinguish them from the usual context in which agency deference arises. Most notably, the commission published, promulgated, and submitted to Congress both the text of Section 2K2.1 and the commentary at the same time and received public comment on both the guideline text and the commentary. Although the commission does not always follow this full process for the commentary, often the commission does, and when it does, both the guideline and the commentary may be analogized to a regulation itself. The government and amicus both raise this point as a limit on discounting the role of the commentary. Beaird’s main response is that there is insufficient congressional authorization to delegate to the commission interpretive authority for its own guidelines through commentary, so an identical process for creating guidelines and commentary makes no difference.Another feature of the guidelines that bears the extent of deference, at least as a practical matter, is that, under 28 U.S.C. § 994(o), the commission must “periodically … review and revise” the guidelines to resolve disagreements on their application, a feature of the statutory scheme that both the government and the amicus note and which allows the commission to reject appellate precedent interpreting the guidelines. Indeed, that statutory duty has led the Supreme Court to rule that, generally, it will leave to the commission resolving lower courts’ disagreements over how to interpret a guideline provision. But no such comparable rule exists for review of executive branch regulations. It would thus seem anomalous for the court to conclude that Congress expected courts give no deference to the commission’s interpretation of ambiguous guidelines even though Congress expressly authorized the commission to reject interpretations it thinks are wrong.Another distinguishing feature of the guidelines is that they are advisory only and merely guide judges, which is not generally true of agency regulations. The government’s argument does not place great weight on the advisory status of the guidelines and instead stresses that Stinson’s test readily coheres with Kisor’s rule. The amicus in contrast builds more of a defense of Stinson’s deference from the guidelines’ advisory status, reasoning that an agency’s interpretations that are advice only do not pose the same dangers that an agency’s interpretation of a binding regulation would create.Both Beaird and the amicus raise one point that, if the court were to pursue in this case, could result in a ruling that reaches far beyond federal sentencing. Drawing on Loper Bright Enterprises v. Raimondo, both Beaird and the amicus question the role that ambiguity in a regulation played in ushering in agency deference under Kisor. In Loper Bright Enterprises, the court addressed deference to an agency’s interpretation of a statute and rejected authorizing agency deference because of ambiguity in a statute. But the justifications for deferring to an agency’s interpretation of regulations that the agency itself writes differ from those of deferring to its interpretation of a statute that Congress enacted.Because of the quantity of guidance found in the commentary, the court’s ruling defining deference to the commentary will immediately feature in a great deal of cases. But determining the consequences of the court’s ruling is more complex. As the government notes, courts of appeals agreeing with the government’s approach have applied Kisor to the commentary interpreting a “large capacity magazine” and upheld the commentary’s view. But it is less clear what those courts would say under Beaird’s rule. And any ruling from the court that seriously undermined the role of the commentary would likely force the commission’s hand to revise the guidelines so that they either leave less of the content of sentencing guidelines in the commentary or even dispense with separate commentary altogether.

Plus, the first relists of the 2026-27 term.