In a string of decisions in recent years, the Supreme Court has ruled in favor of religion-based discrimination claims. In 2022, the Court's conservative majority ruled that Maine couldn’t exclude religious schools from a high-school tuition program. Last year, the Court held that Maryland parents with religious objections had the right to pull their children out of elementary school classes using storybooks with LGBTQ characters.

Colorado has been on the losing side of a number of these cases beginning with a challenge from a baker who didn't want to make cakes for same-sex couples, despite the state's nondiscrimination law.

A new challenge could well extend the state’s losing streak. In St. Mary Catholic Parish v. Roy, 25-581, Catholic preschools say they are being unconstitutionally excluded from Colorado’s program offering universal preschool for four-year-olds. The schools want to be able to turn away children because of their parents’ sexual orientation or gender identity, despite the program’s “equal opportunity” requirement.

Colorado voters approved universal pre-school for four-year-olds, known as UPK, in 2020. The program is open to all schools, public and private, including religious institutions. Among the standards for participation is a requirement that, to receive public funding, preschools “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.”

In prior cases, the Court has held that states don’t have to include private schools in their programs. But once they do, religious institutions can't be excluded because doing so violates the First Amendment.

Two Catholic preschools, the Denver Archdiocese and parents have challenged the non-discrimination provision. Their lawyers told the Court in their main written brief that “it is undisputed that Colorado knowingly excluded Catholic preschools solely on account of their religious exercise. The resulting burden on Petitioners’ religious exercise is unsurprising.”

One Catholic preschool has closed, and parents have been denied more than $12,000 in tuition assistance “simply for choosing a Catholic education,” the lawyers claimed. “Colorado’s interference with Petitioners’ free exercise of religion ought to have been obvious.”

But a federal district court and the Tenth U.S. Circuit Court of Appeals rejected the challenge. Colorado’s program “went to great effort to be welcoming and inclusive of faith-based preschools’ participation. The nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights,” Judge Richard Federico wrote for a unanimous Tenth Circuit panel that affirmed the district court’s ruling.

The Tenth Circuit said the program complied with the Supreme Court’s 1990 decision in Employment Division v. Smith, rejecting a First Amendment challenge and upholding a law that is facially neutral and generally applied.

The Supreme Court agreed in April to hear the case.

The Trump administration and 21 Republican-led states have lined up behind the Catholic challengers, while 18 Democratic-led states are siding with Colorado.

Colorado argues that the lower court rulings should be upheld. It stated the program “stands apart” from recent high court decisions because it welcomes participation by religious institutions and it does not seek to censor their teachings. “No surprise then that many religious preschools, including Catholic preschools, participate,” Colorado Attorney General Phil Weiser wrote.

Last school year, more than 40,000 children were enrolled in UPK at more than 2,000 schools, according to the Colorado Department of Early Childhood. Forty faith-based schools with more than 900 students took part in the program in the 2023-24 school year, according to court documents.

Colorado disputes the challengers’ assertion that they’ve been excluded from the program. “Petitioners remain welcome to participate in UPK, subject to the same equal-opportunity requirements that apply to all other publicly funded preschools—public and private, secular and religious,” Weiser wrote.

The opposing briefs tangle over the reach of the Court’s 2022 decision in the Maine case.

The challengers contend the Catholic schools are being denied state money precisely because they are exercising their religious beliefs about sexual orientation and gender identity, which they believe is a clear constitutional violation.

They also argue that the Colorado program should be subject to the most searching level of review by courts, strict scrutiny. Laws reviewed under strict scrutiny rarely survive.

The state says there is no discrimination based on religion; religious groups may and do participate in the program; and lower courts properly applied a lower form of review, rational basis, to uphold the program.

A decision is expected by early summer.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.

In Association for Education Fairness v. Montgomery County Board of Education, the Court will evaluate a lottery admissions program developed by the Montgomery County Public Schools system during the COVID-19 pandemic.

The Association for Education Fairness (AFEF) is an organization of Montgomery County parents formed to advocate for merit-based admissions to advanced academic programs. Its members have children who intend to apply to such programs. The AFEF alleged that the lottery program discriminated against Asian American students by limiting the group’s overall share of admissions to the magnet middle school programs compared with years prior to the new system.

Montgomery County insisted that the lottery system was race-neutral and race-blind and that it did not violate the 14th Amendment’s Equal Protection Clause. The Fourth Circuit Court of Appeals upheld a district court decision in favor of Montgomery County. The appeals court ruled that the AFEF failed to prove that the lottery had sufficient disparate impact on Asian American students as a group.

Courts find evidence of disparate impact when a seemingly neutral government policy or action causes disproportionate, unjustified negative harm to a group, regardless of intent.

The Supreme Court accepted the case on October 19, 2026, to settle the following question: “Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.”

The path to the Supreme Court

In its petition to the justices, the AFEF wanted the justices to reconsider a benchmark twice rejected by the Supreme Court for arguments. The “aggregate disparate-impact benchmark” is a statistical measure used to determine discrimination as a policy outcome. In the case of school systems, the benchmark is used to establish that a policy designed to be neutral actually results in discrimination against a protected class. In this case, the protected class is Asian American students.

“Parent groups have twice before asked this Court to decide whether those challenging admissions criteria for competitive public schools must satisfy an aggregate disparate-impact benchmark before courts may consider evidence of discriminatory intent,” argued AFEF in its petition to the Supreme Court. The appeals in those two cases, Coalition for TJ v. Fairfax County School Board (2023) from the Fourth Circuit Court of Appeals and Boston Parent Coalition for Academic Excellence Corp. v. School Committee for the City of Boston (2023) from the First Circuit Court of Appeals, were not accepted by the Supreme Court, with dissents from Justice Samuel Alito with Justice Clarence Thomas joining.

Since then, the Second Circuit and Third Circuit have ruled that the aggregate benchmark test wasn’t needed to prove an intentional discrimination claim, and challengers could move forward making Equal Protection Clause claims alleging intentional discrimination.

In this case, the AFEF argued that the Montgomery County Public Schools system became concerned about a substantial increase in Asian American students’ enrollment in its magnet programs based on a merit-based admissions system centered on grades, testing, and teacher reviews. The school system, it claims, started implementing changes to achieve racial balancing in the admission process.

For the lottery program developed during COVID-19, AFEF cited that students who attended higher-poverty schools had their testing scores adjusted, or normed, based on income percentiles to become eligible for the lottery. The district court, however, determined that the AFEF failed to prove the share of Asian American students admitted under the lottery was lower than the Asian American total share of the applicant pool eligible for the magnet programs.

In a response brief, the Montgomery County Public Schools system stated that several factors led to the lottery admissions system now in place, instead of an in-person exam that was an important part of the process.

“In prior years, the admissions process had relied on an in-person aptitude exam. But the challenges of the pandemic, and the school district’s attendant shift away from in-person instruction, made it impossible for the district to use the exam,” the county claimed. “Instead, the school district decided to rely on a race-neutral, race-blind lottery to select students for admission.”

The school system stated it started to expand the pool of eligible students in 2017 by seeking out students to take the aptitude exam, which resulted in more admissions to the magnet schools from high-poverty schools. It also began a “local norming” program to “to select students for magnet programs by comparing their academic performance to the performance of other students in school communities with similar economic circumstances.”

The lottery system went into effect when the pandemic made it difficult to conduct in-person exams. The school system considered grades and comparing “performance to other students from elementary schools of a similar poverty level” As qualifying factors. Once students were entered into the lottery, their assignment to a magnet school or local school was random.

The larger questions at the Court

One basic question that will be considered as more briefs are submitted to the Court is its precedent in Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977). In a case involving racial discrimination in zoning, a divided Court held in Arlington Heights that a finding of disparate impact by itself was not enough to prove unconstitutional intentional discrimination under the 14th Amendment’s Equal Protection Clause. "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination,” wrote Justice Lewis Powell in his majority decision.

The AFEF believes the Fourth Circuit decision undermines the Arlington Heights standard. “The result is a rule that marginalizes the Arlington Heights inquiry, permits racial balancing by proxy, treats equal protection as a group right rather than an individual one, and insulates some forms of intentional discrimination from judicial review,” it concluded.

Montgomery County presents the opposite view. “The District Court held that AFEF did not plausibly allege discriminatory intent, a necessary element of its claim under Arlington Heights,” it noted in its reply brief. “Under Arlington Heights, ‘[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.’ Disparate impact alone is not enough.”

Another issue of note is the potential national impact of the Court’s decision. As noted in the AFEF’s petition, “the criteria used to admit students to competitive public schools are of substantial importance to many families, particularly in the Nation’s largest school districts. These schools provide exceptional educational opportunities to students who might otherwise lack access to comparable academic programs.”

If the Court does resolve the dispute in favor of the AFEF, the case could head back to the district court to consider the Equal Protection Clause claim. For now, arguments are expected to be held next year with a decision by late June 2027.

Scott Bomboy is the editor in chief of the National Constitution Center.

Now a new immigration case centered on college campuses is headed the justices’ way. With both the Justice Department and civil rights lawyers representing affected immigrants calling for review and a clear split in appellate rulings, the issue could be ripe for the Court to hear argument and render its judgment by early next summer.

Lawyers for Mahmoud Khalil, arrested in New York City last year because of his activism at Columbia University, and the Trump administration have suggested in court filings that the justices should take up Khalil’s case as well as that of a Georgetown University scholar.

The appeals follow circuit rulings in favor of the government in Khalil’s case and in favor of the Indian scholar, Badar Khan Suri.

“This represents a clear circuit split that will not get resolved absent this Court’s intervention,” Khalil’s lawyers wrote in their petition in Khalil v. Trump, 26-530. The other case is Trump v. Suri, 26-380.

At its root, the dispute concerns the administration’s authority to detain and deport scholars and students over their support for Palestinian rights.

In both cases, Khalil, a legal permanent resident of the U.S. whose wife is an American citizen, and Suri, who holds a visa to do post-doctoral work in this country and also is married to an American, allege they were detained for speaking out in favor of Palestinian rights, in violation of the First Amendment.

Lawyers for Khalil say they have learned that at least a dozen legal permanent residents in the U.S. have been subjected to deportation proceedings based on the same foreign policy ground that Rubio first applied to Khalil.

The issue before the court is somewhat more technical, whether the immigrants can have their constitutional challenges to their detention heard now by federal courts or whether federal law instead directs them first to immigration courts that are part of the Justice Department.

Trump had promised to target students who joined protests against the war in Gaza in 2024. Arrests during the first few months of his second presidential term drew extensive press coverage, perhaps none more than Khalil’s.

He was arrested in March 2025 after Secretary of State Marco Rubio determined that his presence in the United States was contrary to American foreign policy interests, invoking a rarely used broad power to expel foreign students.

At the time, a spokeswoman for the Department of Homeland Security said the arrest was in support of Trump’s “executive orders prohibiting antisemitism” and that Khalil “led activities aligned to Hamas, a designated terrorist organization.”

Less than two weeks later, federal agents detained Suri outside his suburban Washington apartment complex. Suri did not take part in protests, but the administration said he had undisputed family ties to Hamas and wrote social media posts in favor of the group. His wife’s father once served as an adviser to a Hamas leader.

Federal judges eventually ordered the men released. Khalil spent more than three months in detention, mostly in a facility in Louisiana, where he missed the birth of his first child. Suri was held for two months, mainly in Texas.

The Justice Department appealed both rulings in favor of the men, and federal courts of appeals in Philadelphia and Richmond, Virginia, reached different decisions.

A three-judge panel of the Third U.S. Circuit Court of Appeals in Philadelphia decided in a 2-1 vote that Khalil’s case belongs in immigration courts, reversing a district court ruling in favor of Khalil.

In an opinion joined by Judges Thomas Hardiman and Stephanos Bibas, the court wrote that the Immigration and Nationality Act stripped federal courts jurisdiction, even as it acknowledged that “some petitioners, like Khalil, will have to wait to seek relief for allegedly unlawful government conduct.”

A three-judge panel of the Fourth U.S. Circuit Court of Appeals in Richmond, also voting 2-1, came out the other way. It ruled that Suri’s case was properly in the federal court system, affirming a district court judgment that Suri should be released while the government continues its efforts to deport him.

Describing Suri’s and similar cases, Judge DeAndrea Benjamin wrote that “in each case, the Government insists that judicial review of the allegedly unconstitutional detention can come only after removal proceedings that can last for months or years. Until then, according to the Government, a detained noncitizen has no judicial recourse. We disagree.”

In Khalil’s case, the Justice Department opposed a typically routine request for an extension to file his Supreme Court appeal. Justice Samuel Alito, who oversees matters from the Third Circuit, granted the extension.

Responses in both cases are due in November, and the Supreme Court could consider the petitions shortly before or after its Christmas recess.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.

The Court agreed to hear arguments in Department of Justice v. McNutt, one of two related cases on the federal distilled spirits ban presented to the justices. It took no action on a related appeal, Ream v. Department of the Treasury.

The question before the Court in McNutt is “whether the prohibition on the production of distilled spirits in particular locations, including ‘in any dwelling house’ or ‘in any shed, yard, or inclosure connected with any dwelling house’ … is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”

The petition to the Court in Ream also asked the justices to settle the taxing question and to reconsider its precedent in Gonzales v. Raich (2005). In Raich, a divided Court said Congress had broad power to prohibit marijuana use in the states, including those states that had legalized its use for medical purposes.

The justices did not add the challenge to Raich as a question to be considered by the Court in the McNutt case when it accepted the challenge for argument.

Two petitions sought to settle a dispute over the ability of Congress to ban the home production of distilled spirits, while allowing people to make their own beer, wine, cider, and lower alcohol-content drinks and beverages for their own consumption.

The home-distilling ban is based on federal tax laws from 1866 and 1868 that amended an existing excise tax on distilled spirits to prohibit their production “in any dwelling-house” or areas located on the same home property like sheds. Since then, Congress has enacted other laws to regulate the location of all distillate plants, including large operations.

The Two Petitions to the Court

The McNutt case comes from the U.S. Court of Appeals for the Fifth Circuit. Four members of the Hobby Distillers Association, including Scott McNutt, sued in the U.S. District Court for the Northern District of Texas over the ban. The Fifth Circuit held that Congress’s power under the Constitution’s Necessary and Proper Clause didn’t extend to the home distillers such as McNutt.

The Constitution’s Necessary and Proper Clause in Article 1, Section 8, empowers Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [in Article I, Section 8], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The Justice Department in McNutt asked the Supreme Court to limit the question before it to just the Necessary and Proper Clause. The department cited the landmark case, McCulloch v. Maryland (1819), and other precedents as supporting its argument. The Supreme Court accepted the question presented from the department, without comment or additional questions.

In the Ream appeal, petitioner John Ream of Ohio wished to make whiskey at home to sample, and he agreed to pay any federal taxes on it. A federal district court initially ruled against Ream. On April 21, 2026, the U.S. Court of Appeals for the Sixth Circuit also ruled in favor of the government.

In his appeal to the Court, Ream’s attorneys disagreed with the Justice Department’s interpretation of the Necessary and Proper Clause as permitting the home distilling ban. But they also wanted the justices to reconsider Gonzales v. Raich.

In its most-recent petition to the Court, Ream argued the Justice Department’s true goal was “to keep this Court away from Gonzales v. Raich, the precedent the government invoked at every stage below and now declines even to mention in its own defense.”

“The importance of reconsidering Raich can hardly be overstated. The decision deforms federalism, invading powers reserved to the states and the people,” the petitioned claimed. “Ultimately, it countenances no limiting principle on the reach of federal power.”

In a reply brief in the Ream case, the Justice Department dismissed the impact of Raich in this instance. “That question was not addressed by either lower court in this case, and it does not warrant this Court’s consideration.”

And in its reply brief in McNutt, the Justice Department also argued that “resolving the taxing-power question presented in this case will thus resolve the merits of all arguments the government is advancing in defense of the statute at issue in both cases.”

“Of course, that in no way forestalls this Court’s ability to reconsider Gonzales v. Raich if it wishes in an appropriate case—namely, in a Controlled Substances Act case where the government is actually defending the statute’s constitutionality based on the commerce power.”

At private conference on October 16, at least four justices voted to limit the appeal to the Necessary and Proper Clause. Arguments will be held in 2027 with a decision likely by late June.

Scott Bomboy is the editor in chief of the National Constitution Center.

The case, U.S. DOGE Service v. U.S. District Court for the District of Columbia, 25-1103, will be argued early next year.

The administration is trying to keep the group, Citizens for Responsibility and Ethics in Washington, from obtaining the records  by arguing that DOGE is not subject to the Freedom of Information Act (FOIA). The litigation concerns whether CREW should be able to obtain information, or discovery, to make its case that DOGE, formally known as the U.S. DOGE Service or USDS, falls under the federal sunshine law.

Lower courts have sided with CREW, with United States District Court for the District of Columbia Circuit Judge Christopher Cooper finding that USDS is “likely an agency subject to FOIA.” But the Supreme Court issued a preliminary ruling in the administration’s favor when the matter came to the justices last year on their emergency docket. With the three liberal justices in dissent, the court held that a lower court order allowing CREW to obtain discovery from USDS was too broad.

The new case will allow the high court to provide a more lasting resolution.

DOGE was the brainchild of billionaire Elon Musk, who once promised he could find $1 trillion in budget cuts in the Trump administration’s first year. Trump signed an executive order creating DOGE on the first day of his second presidential term in January 2025.

CREW requested records about DOGE a few days later, then filed a federal lawsuit when USDS said it would not comply.

The main dispute between CREW and the administration is over whether the agency wields independent authority or is merely a board that exists to advise the president.

FOIA states plainly that it applies to the Executive Office of the President, but subsequent court decisions have narrowed the applicability of FOIA to exempt entities within the Executive Office that exist solely to advise and assist the president.

In the Justice Department’s petition to the court, Solicitor General D. John Sauer wrote that USDS does not exercise independent authority. “The President has directed USDS to coordinate with agency DOGE teams on the President’s efficiency goals, but those teams operate under each agency’s authority, not USDS,” Sauer wrote.

CREW offered a starkly different assessment in its response urging the Court to stay out of the case. “USDS tore through the federal government, terminating billions of dollars in contracts and programs, shuttering agencies, and firing tens of thousands of public servants,” according to CREW’s brief. The lead author of the brief is Nathaniel Zelinsky of the non-partisan Washington Litigation Group, which is representing CREW in the case.

CREW narrowed what it was asking for and the U.S. Court of Appeals for the District of Columbia Circuit approved, but Sauer said neither got the Supreme Court’s message.

The appellate panel “has continued to approve intrusive discovery against a presidential advisory body without adequate consideration for the separation of powers, the FOIA statute, and this Court’s previous order,” Sauer wrote.

For its part, CREW argued that the administration was seeking a broad ruling that would frustrate the aims of the federal open-records law.

“The government’s proposed rule is impossible to square with statutory text, and it would be ripe for abuse. Indeed, it would allow the executive to establish hugely consequential entities like USDS, while sidestepping an important sunshine law, simply by placing those entities in EOP and obscuring the precise nature of their delegated authority,” lawyers for CREW said.

The administration relies heavily on the 2004 Supreme Court decision in Cheney v. US. District Court, which concerned efforts by watchdog groups to obtain records of an energy task force that was chaired by then-Vice President Dick Cheney.

The justices put the brakes on lower court rulings allowing discovery, saying in a 7-2 ruling that there was a “paramount necessity of protecting the executive branch from vexatious litigation.”

CREW argued that the current case is vastly different from Cheney, noting that the sitting vice president was part of the task force and that no similarly high-ranking official is involved in USDS.

The administration also objects to CREW’s desire to depose USDS Administrator Amy Gleason. Sauer wrote that allowing CREW’s lawyers to question Gleason under oath would intrude “into the autonomy and confidentiality of presidential advisors.”

But CREW responded that it is seeking Gleason’s testimony because the administration submitted her declaration in support of its argument that USDS is only an advisory body. “Only Gleason can testify about the personal knowledge underlying her assertions,” CREW’s lawyers said.

A decision in the case is expected by late June.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.

In Beaird v. United States, the Court is considering a sentencing process based on its precedent in Stinson v. United States (1993), which has defined the level of deference in criminal sentencing given to federal judges. The U.S. Sentencing Commission, an independent agency in the judicial branch of government, publishes Federal Sentencing Guidelines for judges to follow, along with commentary to help judges interpret the guidelines.

In Stinson, a unanimous Court gave great deference to the commentary in sentencing decisions, holding that “the Guidelines Manual’s 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.”

Kendrick Jarrell Beaird is challenging the Stinson precedent. Beaird filed his appeal in forma pauperis, under the conditions of a Court rule that allowed him to waive filing fees with the representation from public defenders.

The Path to the Court

Beaird was arrested for possession of a gun following a felony conviction. A Northern District of Texas grand jury indicted Beaird under 18 U.S.C922(g)(1), a statute that punishes someone previously convicted of a felony from possessing a firearm that has moved in their possession via interstate commerce. Beaird failed at the trial court in his claims alleging violations of the Second Amendment and Commerce Clause, and he pleaded guilty.

A federal judge consulted the Federal Sentencing Guidelines for someone possessing a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Beaird was found in possession a Glock capable of holding 17 rounds of ammunition. The Sentencing Commission’s official commentary on the federal guidelines called for 63 to 78 months of imprisonment for possession of a semiautomatic firearm that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.”

The judge sentenced Beaird to 72 months of imprisonment, to be followed by three years of supervised release. In his appeal, Beaird’s defense argued that commentary on the sentencing guidelines had improperly expanded the definition of a large-capacity magazine. The Fifth Circuit Court of Appeals upheld the decision and sentencing. In taking this case, the Supreme Court limited arguments to the holding in Stinson as it applied in Beard’s case.

Beaird’s appeal took several turns. Initially, the Solicitor General responded to the Court that Beaird’s petition should be denied. But once the Court accepted the case limited to the Stinson guidelines precedent, the United States asked the Supreme Court to vacate the appeals court decision so the lower courts could consider the case focusing on the Stinson precedent. Then, the Supreme Court moved to appoint an amicus curiae, Anthony J. Dick of Washington, D.C., to argue the position that Stinson correctly defined the deference that courts must give to the commentary on Sentencing Guidelines.

The Arguments at the Court

During arguments, public defender Kevin Joel Page, representing Beaird, faced repeated questions from the justices about changing the Court’s precedent in Stinson and granting more discretion to federal judges in sentencing.

“The proper rule for deference to guideline commentary is no deference. Nothing in the text of the Sentencing Reform Act suggests that courts must ever defer to commentary when interpreting a guideline, let alone defer . . . according to the extreme rule of Stinson,” argued Page.

“What concerns me about your arguments is that you’re suggesting that they are separable in some way which is really not the way in which the guidelines were devised,” said Justice Ketanji Brown Jackson, who served as assistant special counsel of the U.S. Sentencing Commission from 2003 to 2005 and as a commissioner and vice chair from 2010 to 2014.

Jackson told Page that his argument represented “a fundamental misunderstanding” of the guidelines and commentary, which she said are linked together. “When you are a judge, you’re using both to reach the right answer under the guidelines, and there is a right answer as to what the guideline range is,” she said.

While Page noted Stinson and other precedents allowed a judge to ignore the commentary if it is not consistent with the guidelines for sentencing, Jackson believed Page’s position allowed a judge to ignore both.

Justice Sonia Sotomayor seemed skeptical of Page’s arguments, stating “you’re creating a sea of confusion for district court judges to fill in the blanks.”

Several justices pointed to the Court’s precedent in United States v. Booker (2005), which held that the guidelines were advisory and not mandatory. Justices Clarence Thomas and Neil Gorsuch asked Deputy Solicitor General Eric J. Feigin how the Court should account for the Booker precedent in this case.

“We do not think that the commentary as it’s been promulgated by the Commission can either be viewed right now as a policy statement or as a guideline,” Feigin told Gorsuch.

Justice Samuel Alito wondered what would happen in the Court overturned Stinson and cases had to be reconsidered. Feigin countered that, “I think we’d argue that in a lot of those cases, the courts reached the correct result notwithstanding having referenced the commentary.”

The Court-appointed amicus curiae, Anthony J. Dick, echoed the Court’s landmark decision in Marbury v. Madison in his opening statement. “It is emphatically the province of the judiciary to say what the law is, but the advisory sentencing guidelines are not the law. They are advisory. As a result, when interpreting the guidelines, the question is not what the law is but, rather, what is the non-binding advice that the Commission is offering about what type of sentence should be imposed?”

“Stinson should be upheld. There's no reason to create the chaos that would come from overruling it,” he concluded.

Dick faced extensive questioning from Justice Neil Gorsuch, who disagreed with Dick’s characterization of Stinson. “It’s a nice reconceptualization of Stinson, but that's not what Stinson said,” Gorsuch noted.

“What about the topsy-turvy problem that we have binding commentary—advisory guidelines?” Gorsuch asked Dick in one exchange, referencing the Booker precedent. After Dick refuted any problem, Gorsuch remarked, “[Y]ou say this is all good with Booker, but, boy, the more you make these things binding, you’re creeping up to a Booker problem again.”

After arguments concluded, Chief Justice John Roberts thanked Dick for his service as amicus curiae.

For now, the justices will consider the Stinson precedent in context of several other precedents mentioned during arguments that could affect how federal judges take Sentencing Commission’s commentary into account. The question is whether Stinson will remain as the basis for such precedents going forward, or whether the Court will create a new test in its place clearly allowing judges more latitude in sentencing decisions?

Scott Bomboy is the editor in chief of the National Constitution Center.

In my 20 years covering the Supreme Court for the Associated Press, I tried very hard to predict how cases would come out based on the argument I had just watched, or more recently, listened to. I thought it was my duty as a reporter to tell my readers where the justices appeared to stand after questioning the lawyers. After all, the written briefs already provide extensive elaboration of each side’s arguments. The one new thing to be gleaned from an hour or two in the courtroom was what the justices thought.

Most of the time, that worked fine. Justices who appear to be on one side or another usually are, though I can recall a few cases where my predictions didn’t reflect the ultimate outcome. Then, too, sometimes I just couldn’t identify five votes for any particular outcome.

Alas, that was the situation in the first argument of the new term in a major environmental case. Clocking in at 1 hour and 47 minutes, the arguments just did not provide the clarity I look for.

In Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), the court is weighing whether local governments can pursue lawsuits against energy companies for harms associated with climate change. Potentially billions of dollars and dozens of lawsuits hang on the outcome.

Energy giants Suncor Energy, which operates the only two refineries in Colorado, and Exxon Mobil Corporation are appealing a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado that has allowed the suit to go forward for now.

The state court rejected the companies’ claim that federal law prohibits Boulder’s suit. The energy industry is hoping that the high court will shut down the Boulder case as well as other lawsuits that have popped up around the country. The companies are facing around three dozen lawsuits brought by more than 60 municipalities, lawyer Kannon Shanmugam told the court.

Boulder argues that its lawsuit fits well within the tradition of state court claims that the court has allowed to proceed, including those involving tobacco and opioids.

The Arguments at the Court

Chief Justice John Roberts and Justice Elena Kagan suggested that there was nothing unusual about the Boulder lawsuit, in questions to Shanmugam and Deputy Solicitor General Sarah Harris.

“I guess I'm not quite sure what makes this situation different from those, all those other ones, where we've allowed them to proceed in state court,” Roberts said.

Kagan likened the Boulder case to the third chapter of a book, in which tobacco and opioid litigation were the first two chapters.

“Mr. Shanmugam, in multiple respects, this suit appears to be based on the old 1990s tobacco suits that were brought by states and local governments basically saying that big tobacco had made representations, misrepresentations, which had caused people to use the product in —to overuse the product, causing harm to those governments. I suppose the opioid litigation more recently follows the same model,” Kagan said.

Yet later in the argument, in questions to Kevin Russell, representing Boulder, Roberts and Kagan raised doubts about the viability of the lawsuit, referring to prior Supreme Court decisions that have precluded state action over interstate air and water pollution unless Congress says otherwise. “I'm sorry to interrupt but isn't your suit an attempt to evade those decisions?” Roberts said, “It's really—it's an effort to reduce emissions.”

Kagan said one way to resolve the case might be to say that the Clean Air Act sets up a complicated scheme to regulate greenhouse gas emissions that does not include the kind of suit at issue in the Supreme Court. “And so why not just say: This really does just get in the way of how the—of how Congress decided to regulate greenhouse gases or any other air quality standards?” Kagan said.

The toughest questions Russell faced came from Justice Brett Kavanaugh, who signaled support for the companies’ arguments. “It’s going to bankrupt—you know, if there are enough of these, bankrupt these—these various defendants and certainly other defendants out there,” Kavanaugh said.

There is a second question in the case that could be an off-ramp for the justices, whether the court should even be hearing the case now. But it appeared to interest just two of the court’s justices, Sonia Sotomayor and Ketanji Brown Jackson. Justice Clarence Thomas also asked about the court’s jurisdiction to hear the case, but his questions seemed intended to give lawyers for the companies and the Trump administration the chance to explain why the matter is properly before the court.

Only eight justices heard the case, after Justice Samuel Alito recently recused himself. Alito didn’t provide an explanation at the time, but he has since told multiple media outlets that he was influenced by the arguments made by the companies and their supporters that devastating consequences would follow a decision to allow the lawsuit to proceed. Alito and his wife own stock in energy companies, though not ones that are parties in this case.

Alito’s decision to step aside means that Boulder, which won in the Colorado state court, can prevail with just four votes. A 4-4 tie would affirm the Colorado high court ruling without setting a national precedent. From the Supreme Court’s perspective, it would be a huge waste of time, after having solicited and ingested dozens of briefs, and set aside precious time on its calendar only to fail to set the nationwide rule it presumably took the case to establish.

We’re not likely to know the outcome for several months.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.

On Oct. 1, 2026, the Court granted a petition for a writ of certiorari in Missionaries of Saint John the Baptist v. Joel Frederic. St. John claims the zoning decision placed a “substantial burden” on its First Amendment free exercise rights, citing a provision under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In return, Joel and Elizabeth Frederic, neighbors to the proposed site, argue the Kentucky Supreme Court correctly interpreted the zoning regulations of Park Hills, Kentucky, to exclude the planned grotto honoring the Virgin Mary. The state court ruled St. John had alternative options for its grotto project, and the zoning regulations were not an unreasonable burden.

Now, the Supreme Court will review the project in the context of the federal RLUIPA statute and basic constitutional zoning powers.

Local Zoning and Federal Religious Protections

The ability of local governments to pass and enforce zoning laws was affirmed in the Supreme Court’s landmark decision in Village of Euclid v. Ambler Realty Co. (1926). Ambler Realty owned property targeted for industrial development in Euclid, a suburb of Cleveland. The Euclid council passed a zoning law that restricted such industrial developments, and Ambler sued on 14th Amendment due process and equal protection grounds.

Writing for a divided Supreme Court, Justice George Sutherland held that “the segregation of residential, business, and industrial buildings” had many public safety benefits. Sutherland said that before a zoning ordinance could be declared unconstitutional it had to be proven to be “arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

These general police powers of state and local governments are affirmed by the principle of federalism and the Constitution’s 10th Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

When Congress passed RLUIPA in 2000, the law contained language intended to protect the free exercise of religious rights in the context of state and local zoning laws.

According to the Justice Department, RLUIPA prohibits any land-use regulations that impose a “substantial burden” on the religious exercise of a person or religious assembly or institution except where justified by a “compelling governmental interest” and when the government pursues that interest in the least restrictive way possible. In legal terms, this is known as a strict security test that presents a very high bar for the government to overcome.

In its petition to the Supreme Court, St. John stated the Kentucky Supreme Court’s decision lacked adequate justification for the restrictions placed on the grotto project, and it was treated differently as a religious institution compared with a secular institution.

St. John owns a church, Our Lady of Lourdes, that was built in 1930. Although the church is located in a residential zone, the church existed before Park Hills had a zoning code, and it is permitted as a nonconforming use as a religious institution in the residential area. Under general zoning concepts, a property owner can continue with an unconforming use until the use is different or the property is abandoned.

The church later entered into a lease agreement with a trust for a property that adjoins the church. St. John planned to use the adjacent property for the grotto. St. John applied to the Park Hills Board of Adjustment for “permission to install a customary accessory structure (i.e. grotto) to the existing conditional use for a place of religious worship,” according to court records. After a public hearing, the Board of Adjustment granted a conditional use permit and setback variances on the condition the property was deeded to St. John.

The Frederics filed a complaint about the Board of Adjustment decision, noting that the grotto could only be situated on a property adjacent to an arterial street under the local zoning code, which the church was not on an arterial street. The Frederics were concerned about increased community traffic. The circuit court ruled in favor of St. John, but an appeals court unanimously reversed the lower court’s ruling. It held that the Board of Adjustment exceeded its statutory zoning authority in granting St. John a conditional use permit and variances since it expanded the scope of the church’s preexisting nonconforming use, an act that violated the local zoning code.

The Kentucky state supreme court agreed with the appeals court, and it held that the appeals court decision did not violate RLUIPA, although it came to that conclusion on different grounds. It cited the Sixth Circuit’s decision in Livingston Christian Schools v. Genoa Charter Twp (2017) as guiding precedent, stating that “the religious institution has a feasible alternative location from which it can carry on its mission.”

The Arguments on Both Sides

The Supreme Court only accepted one of two questions posed in St. John’s petition. It declined to consider if the church was treated differently than a secular institution. But it will consider arguments about RLUIPA’s Substantial Burden Provision.

“The Kentucky Supreme Court held that denying petitioner a permit to construct the shrine does not impose a substantial burden on petitioner’s religious exercise solely because petitioner could build a smaller shrine on a different plot and because petitioner was aware of a prohibitory ordinance before it sought a permit,” it argued.

St. John also stated that “well-recognized conflicts among circuits and state supreme courts” exist about RLUIPA’s Substantial Burden Provision and the lower courts were deeply divided on the statute’s guarantees.

“Because these questions recur in communities across the country wherever religious organizations seek to build or expand, this Court’s resolution of the conflicts is critical,” it concluded.

In a reply filing, the attorneys for the Frederics repeated the basic argument accepted by the Kentucky supreme court that the local zoning board lacked the power to allow the grotto on the adjacent lot and that St. John could build a similar grotto on its church property.

St. John in its most-recent filing noted that a recent Third Circuit Court of Appeals decision, Anash v. Borough of Kingston (2026), strongly supported its argument. In Anash, a divided court said that the municipality of Kingston, Pennsylvania, violated the religious rights of a rabbi protected under RLUIPA. The rabbi sought to use two buildings he owned in a commercial district for religious instruction, housing students, maintaining an office, and for prayers. The municipality issued two notices of zoning-ordinance violations.

“Unless land use regulation satisfies strict scrutiny, the choice of where the exercise of religion can take place should be left to persons with rights of access to and use of real property—not to zoning codes and landmarking laws promulgated by governments,” the Third Circuit concluded.

In taking St. John’s appeal, at least four Supreme Court justices at private conference agreed to consider the Substantial Burden Provision. So far, the Court has not considered the provision in detail, and any substantial ruling could have wide-ranging impacts on local zoning laws nationally.

Scott Bomboy is the editor in chief of the National Constitution Center.

Two major cases to be heard in December focus on religious rights with a significant Second Amendment challenge also scheduled for argument that month. In addition, the question of voter ID laws will reach the Court this fall, along with controversies about climate change, and two Eighth Amendment challenges.

October 5 Session

The first case of the October Term 2026 is one with potentially major implications. The justices will hear arguments in Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), which it added to its docket in February 2026.

Energy giants Suncor Energy and Exxon Mobil Corporation have appealed a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado. Boulder sued over claims relating to the alleged local negative effects of greenhouse-gas emissions on their governments. Suncor Energy is arguing that federal precedents prevent Boulder from suing over damage caused by emissions from outside of the region.

Johnson v. United States Congress (25-735) will also be heard on the first Monday of October. In this dispute, the Court will consider whether the Veterans’ Judicial Review Act blocks district courts from hearing challenges about the constitutionality of acts of Congress affecting veterans’ benefits. The petitioners have asked the Supreme Court to decide whether its precedent in Johnson v. Robison (1974) allows district courts to consider such challenges.

Other cases in the first session include Beaird v. United States (25-5343), which considers whether the Court’s precedent in Stinson v. United States defines the level of deference in criminal sentencing related to the Commentary of the Federal Sentencing Guidelines. In this case, Beaird contested a sentence that he received for possession of a semiautomatic weapon with a large capacity magazine. Also, in Salazar v. Paramount Global (25-459), the Supreme Court will consider whether Paramount can be liable for sharing with Facebook “personally identifiable information” gathered from email campaigns promoting its own video products.

November 2 Session

The Supreme Court has scheduled seven sets of arguments for early November 2026. The highest-profile case is St. Mary Catholic Parish v. Roy (25-581).

The petitioners, Catholic preschools in the Archdiocese of Denver, claim religious discrimination when they were denied state funding under a Colorado universal preschool program that pays for families to send their children to public or private preschools.

The U.S. Court of Appeals for the Tenth Circuit agreed with a lower court ruling that the state could deny funding to the schools. It cited Supreme Court precedent in Employment Division v. Smith (1990), stating the Colorado program and law were generally applicable and did not target the preschools.

In accepting St. Mary Catholic Parish, the Supreme Court will not consider whether Employment Division v. Smith should be overturned. Instead, it will consider how Supreme Court precedents apply when lower courts consider if a government is explicitly excluding religious people and institutions from public benefits.

Also on the early November argument calendar is Nielsen v. Watanabe (25-417), where the respondent alleged that he suffered a fractured coccyx in a prison gang fight, causing chronic pain due to mistreatment. The question is whether the case should be considered as an Eighth Amendment claim of deliberate indifference to medical needs, as established in Carlson v. Green (1980).

November 30 Session

Arguments running from Nov. 30, 2026, until Dec. 9, 2026, include several major cases. In Jouppi v. Alaska (25-246), the justices will consider a dispute from Alaska over the Eighth Amendment’s Excessive Fines Clause, where state police arrested pilot Ken Jouppi and his lone passenger on Jouppi’s local air-taxi transport plane. The plane was bound for a town that had banned the consumption of alcohol. The police spotted a six-pack of Budweiser on top of the passenger’s luggage and subsequently found three cases of beer.

Alaska has tried to seize Jouppi’s Cessna aircraft under a forfeiture statute. The question presented to the Supreme Court is “whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant's wrongdoing.”

In Republican National Committee v. Mi Familia Vota (25-1017) the Supreme Court will turn to the National Voter Registration Act, which allows voters to register to vote at the same time they apply for a driver's license, whether by mail or in person. Arizona passed laws requiring new voter registrants to provide physical “documentary proof of citizenship” and for county recorders to conduct citizenship audits of voter registration rolls against state and federal databases. Mi Familia Vota and others have sued to block these laws from going into effect.

In Viramontes v. Cook County (25-238) and Grant v. Higgins (25-566), the Supreme Court will consider challenges to laws that place restrictions on the possession of assault rifles. The constitutional question is whether these laws conflict with the Second Amendment and 14th Amendment of the Constitution. In Viramontes, Cutberto Viramontes and others are appealing a Seventh Circuit ruling upholding Cook County’s ban on AR-15 rifles. Viramontes sought to acquire such a rifle. Cook County criminalizes the sale, transfer, or possession of any “assault weapon” including AR-15s.

The circuit court concluded that rifles like the semiautomatic AR-15 rifle “are not ‘Arms’ under the Second Amendment,” citing Bevis v. City of Naperville, another Seventh Circuit decision from 2023. The Bevis court undertook a Bruen-style analysis to decide the case, using a frame from the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association v. Bruen (2022). The Bruen test requires a court to look at history and tradition when considering appeals about laws that restrict firearms ownership.

In his appeal, Viramontes said the appeals court misapplied Bruen and did not consider another key Supreme Court precedent, District of Columbia v. Heller (2008).

In Grand v. City of University Heights, Daniel Grand, an Orthodox Jew, invited 15 of his friends over to pray with a “minyan,” in the privacy of his home in University Heights, Ohio. Grand was then contacted by the town’s mayor and its law director before the minyan. They told Grand that praying in a residential home constituted a “synagogue” under the University Heights zoning code, which required a special-use permit. Grand also received a cease-and-desist letter.

Grand sued the city, its mayor, and its law director in federal court. The district court ruled that Grand lacked standing to sue on First Amendment grounds and dismissed his case for lack of ripeness. It cited the Supreme Court’s precedent in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), as requiring Grand to get a final zoning board decision before pursuing his claim. The Sixth Circuit upheld the lower court's decision.

The question accepted by the Supreme Court is whether “a credible government threat that deters the exercise of fundamental rights” is displaced by Williamson County’s land-use finality requirement when a plaintiff alleges that government threats both before and after a Planning Commission meeting chilled his religious exercise, worship, and assembly.

Scott Bomboy is the editor in chief of the National Constitution Center.

On October 5, the justices will hear arguments in Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), which it added to its docket in February 2026.

Energy giants Suncor Energy and Exxon Mobil Corporation have appealed a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado. Boulder sued under state common law over claims relating to the local negative effects of greenhouse-gas emissions on their governments. Suncor Energy is arguing that federal precedents prevent Boulder from suing over damage caused by emissions from outside of the region.

The justices are considering two questions. First, whether the Court has statutory and Article III standing to consider the case. And second, whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.

The arguments will be closely watched with numerous similar environmental lawsuits in progress against energy producers from state and local governments making similar claims. Suncor stated that at least 60 state and local governments had brought similar lawsuits as of August 2025.

The Lawsuits from Boulder and the State Supreme Court

The legal fight from Boulder started in 2018 when Boulder brought various claims under Colorado law, alleging that Suncor’s worldwide conduct led to global climate change, which also caused a variety of negative effects in Colorado. Suncorp countered that the federal Clean Air Act (CAA) and federal common law precluded Boulder’s claims.

The case first went through the federal legal system. In 2021, the Supreme Court remanded the case to settle jurisdictional questions, and it then denied the case in 2023 over the objections of Justice Brett Kavanaugh, allowing it to proceed in state court.

On May 12, 2025, the divided Colorado state supreme court ruled in favor of Boulder. Judge Richard L. Gabriel wrote for the five-justice majority that Boulder could pursue its damages claims at state district court.

“Boulder asserts claims for public and private nuisance, trespass, unjust enrichment, and civil conspiracy, and it seeks damages for the role that defendants’ production, promotion, refining, marketing, and sale of fossil fuels has allegedly played in exacerbating climate change, which, in turn, has purportedly caused harm to Boulder’s property and residents,” Gabriel wrote. “Boulder’s claims are not preempted by either federal common law or the CAA. In so concluding, we are not persuaded by defendants’ myriad arguments to the contrary.”

Judge Carlos Samour, joined by Judge Brian Boatright, dissented. “Because state law remains incompetent to regulate interstate and international air pollution, I disagree that Boulder can prosecute its claims. Unlike the Blue Fairy that brought Pinocchio to life, the CAA did not magically breathe life into state-law tort claims that had been as lifeless as a wooden puppet,” he said. “I’m concerned that this decision will contribute to a patchwork of inconsistent local standards that will beget regulatory chaos.”

The Arguments at the Supreme Court

In its petition to the Supreme Court, Suncorp made several basic arguments under the Constitution’s Supremacy Cause, Article VI, Clause 2, which states, in releqant part, “[T]his Constitution, and the laws of the United States … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

“The {Supreme} Court has recognized for over a century, the structure of our constitutional system does not permit a State to provide relief under state law for injuries allegedly caused by pollution emanating from outside the State,” Suncorp said.

Suncorp also asked the Court to consider the widespread impact of the case. “There are few, if any, more consequential questions pending in the lower courts concerning the relationship between state and federal law,” it argued. Upholding the Colorado supreme court ruling would allow “state-law claims asserted by dozens of States and municipalities can [to] proceed—and to do so before the energy industry is threatened with potentially enormous judgments.”

Suncorp also cited the state court decision as affecting the federal government’s foreign-policy powers, and that the Supreme Court had final jurisdiction over the case.

In its initial response brief, Boulder supported the Colorado supreme court ruling and made several counterarguments. It pointed out the state court’s decision was correct and that the Supreme Court’s precedents barred the Clean Air Act from pre-empting the state’s legal jurisdiction over the dispute.

Boulder also argued that because courts had once created federal common law to regulate interstate air pollution, the Constitution required questions to be governed “exclusively” by a uniform rule of federal law. But none of their cases cited by Suncorp addressed what happened when Congress displaced a federal common law with a statute, as it did with the Clean Air Act, Boulder claimed.

After the Supreme Court accepted the case, Boulder made several other arguments and insisted the case should be dismissed for lack of jurisdiction. “How to allocate the cost of climate alteration is a matter of genuine debate. The structure of our Constitution assigns responsibility for resolving that debate to the states and the political branches of the federal government,” it reasoned, and not the Supreme Court at this time.

Boulder also said the case was not at the Court at the right time: “The Colorado Supreme Court has yet to resolve petitioners’ contention that respondents fail to state a claim, or even which state’s law answers that question.”

In its final brief to the Court, Suncorp insisted that state supreme court’s decision represented an overreach of powers and the Supreme Court had the power to hear arguments under Cox Broadcasting v. Cohn (1975).

Suncorp also labeled the Boulder lawsuit as novel: “This litigation is unlike any other in American history—with climate-change advocates seeking to bypass the political process and achieve sweeping policy objectives through state-law causes of action against arbitrary groups of defendants in handpicked forums.”

Deputy Solicitor General Sarah M. Harris also filed a brief in support of Suncorp and will take part in arguments. Harris argues that “state-law claims contravene the Constitution’s territorial limits on state authority and the federal government’s exclusive role over foreign affairs.”

Given the large financial stakes and the broad constitutional questions involved, Suncorp Energy v. Boulder should receive considerable attention as the first arguments in another active Supreme Court term.

On Sept. 28, 2026, Scott S. Harris, the clerk of the Supreme Court, said Justice Samuel Alito would not participate in the case.

Scott Bomboy is the editor in chief of the National Constitution Center.