On Monday, the Supreme Court rejected a petition in C. S. v. Craig McCrumb, a case that asked the justices to rule on the limits of First Amendment rights inside of public schools. Specifically, the case addressed a school decision on what counted as an appropriate clothing choice for a Michigan elementary school student inside of the classroom.

In her petition, the student was contesting a ban placed on a hat she wore at school. The plaintiffs sought a ruling related to one of the Court’s landmark decisions, Tinker v. Des Moines Independent Community School District (1969), which involved the use of protest-related armbands in public schools.

An attempt to redefine the Tinker precedent

In McCrumb, the student’s petition for a writ of certiorari was offered by her father, Adam Stroub. The petition argued that the school’s response to the student’s hat was part of a pattern of cases where schools were forcing their own viewpoints on students, using a wrongly applied version of the Tinker precedent.

“Tinker is being circumvented by school officials silencing views with which they disagree while hiding behind the notion of avoiding hurt feelings,” the petitioners claimed. “This Court should restore for the Nation’s schoolchildren the promise of First Amendment protections Tinker guaranteed their grandparents’ generation more than half-century ago.”

In December 1965, at the height of the Vietnam War, three students, including Mary Beth Tinker, a 13-year-old student at Warren Harding Junior High School in Des Moines, Iowa, wore black armbands to school to protest the war. They were all suspended.

In his 7-2 majority opinion in Tinker, Justice Abe Fortas said, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

However, Fortas noted that students’ free speech rights didn’t extend to conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” But he also held that silent protests—such as wearing armbands—were constitutionally permitted. “Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’ The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners,” Fortas concluded.

Since 1969, the Tinker precedent has been repeatedly cited by the Supreme Court when defining the boundaries of student expression.

A dispute escalates over a hat

In the McCrumb case, Kerr Elementary’s weeklong “Great Kindness Challenge” in February 2022 included “Hat Day,” when the school asked students to wear hats of their choice. For C.S., her hat choice was a black baseball cap with a white star, a white image of an AR-style rifle, and the phrase “come and take it” printed on the cap. As later revealed in court, C.S. chose that hat as a tribute to her father and to show her support for “the right of people to have guns.”

A school officer saw C.S with the hat and called her parents, who declined to send a substitute hat to the school. Officials then asked C.S. to remove her hat and place it in her locker and she complied. Through her father, C.S. sued the school district, alleging violations of the First Amendment’s Free Speech Clause and the 14th Amendment’s Due Process Clause. A district court ruled in favor of the school and the case was sent to the U.S. Court of Appeals for the Sixth Circuit.

A three-judge panel affirmed the lower court's decision in May 2025 where several facts came into play. On Nov. 30, 2021, in Oakland County, Michigan, a student opened fire on his classmates at Oxford High School, killing four other students. The educators at Robert Kerr Elementary School felt the hat was inappropriate in the context of the event held on February 17, 2022, just 10 weeks after the Oxford High shooting. Oxford High was a one-hour drive away, and the incident was highly publicized. The school also felt the hat could cause a disruption among students who had recently transferred to Robert Kerr from the Oxford School District as a result of the shooting.

The attorneys for C.S. argued the school lacked evidence that the hat would cause a “substantial disruption” under Tinker and the school’s actions also censured the free speech rights of C.S. under the Tinker standard. They also stated school officials disagreed with the speech “COME AND TAKE IT” on the hat, which represented the support of C.S. for the Second Amendment.

The unanimous appeals court held that “special characteristics” and circumstances, such as the presence of former Oxford School District students in the district, the young age of plaintiff and her classmates, and the hat’s message, combined to give school officials good cause to expect substantial disruption to the school’s educational environment under Tinker.

The entire Sixth Circuit declined to hear the case, but several circuit judges published opinions concurring with the ruling. One of the judges questioned the timing of the school’s statements linking its decision to the Oxford School District shooting well after the incident happened on Hat Day.

The Supreme Court declines the case

In their petition to the Supreme Court, the attorneys for C.S. made the argument that a rule created by the schools’ leaders “allowed them to hide behind a post hoc excuse they invented (with the aid of counsel) months after the fact, and which is unsupported by the record.”

“The Sixth Circuit opinions blow a gaping hole in Tinker. School officials, with the luxury of 10 months’ time and counsel’s advice, will usually be able to contrive some justification for squelching student speech akin to the panel’s notion of protecting ‘children reeling from an irrefutably tragic and traumatic event,’” they said.

Her attorneys also claimed the case merited Supreme Court consideration because the Sixth Circuit had created a new “potential emotional harm” exception to the First Amendment, as a fourth category of regulatable student speech regulated by the Court.

The justices considered the McCrumb case twice in private conference before refusing to grant the petition. There were no comments from any of the justices.

Absent from the denial of certiorari were any opinions from the justices on the case’s merits, and only four of the nine justices are needed to accept a case. In the end, the Tinker disruption standard remains in place.

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

On May 21, 2026, a House Judiciary subcommittee heard testimony from four witnesses about “Court Packing: A Threat to the Supreme Court's Legitimacy.” The hearing came after several high-profile opinion pieces debated the idea of adding more members to the Supreme Court bench for various reasons.

During the House hearing, Rep. Jamie Raskin (D- Md,) offered one rationale for the change. “There are 13 federal circuits in America, and traditionally, the Supreme Court has been made up of the number of justices equal to the number of circuits. And we got 13 circuits, but we only have nine justices,” he told the committee. He also pointed to the failed nomination of Merrick Garland and other successful confirmation of Amy Coney Barrett as politicizing the Court nomination process.

On May 31, 2026, the editorial board of The Wall Street Journal disagreed with Raskin. “It’s true the justices once spent part of each year traveling a judicial circuit to hear cases, but this practice of ‘riding circuit’ effectively ended in 1891,” it commented. “Democrats are telling the public they are plotting one of American history’s most destabilizing power grabs, by degrading the third branch of government.”

To be sure, there is no shortage of political controversy about the subject, which has its roots in the very formation of the Constitution in 1787 and the concept of an independent judiciary and Supreme Court.

The Judicial Branch and its independence

At the Constitutional Convention, the delegates decided to leave the details of how the judiciary system would be structured to Congress. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” reads the opening sentence of Article III of the Constitution. Article III also states that the justices would serve as long as they showed “good behavior” in office and could only be forcibly removed through the impeachment process. (Article 1, Section 8 also gives Congress the power “to constitute Tribunals inferior to the supreme Court.)

In our Interactive Constitution, scholars Richard W. Garnett and David A. Strauss explain how concerns about potential conflicts between state courts and federal courts led to the creation of the federal judiciary. “The compromise was that, just as the Constitution and federal laws would be the ‘supreme Law of the Land,’ there would definitely be a Supreme Court—so a court created by the federal government, with judges appointed by the President, would get the last word, in case state courts did something that was too threatening to the new nation.”

The Judiciary Act of 1789 established the first Supreme Court, when Congress decided that six Justices should be on the Court. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which featured the first debate over the number of Justices on the Court. The act reduced the Court to five Justices to limit incoming President Thomas Jefferson’s appointments. However, Jefferson and his Democratic-Republicans soon repealed that act, putting the Court back to six Justices.

In 1803, the Supreme Court reinforced its importance as a separate branch of government when it decided Marbury v. Madison. The Court’s decision in Marbury confirmed the principle of judicial review, including the power to declare laws passed by Congress and signed by the president as unconstitutional.

The number of justices on the Court would change from 1802 to 1869 for various reasons. In 1807, Jefferson and Congress added a seventh Justice when Congress added a seventh federal court circuit. In early 1837, President Andrew Jackson was able to add two additional Justices after Congress expanded the number of federal circuit court districts.

Under different circumstances, Congress created the 10th Circuit in 1863 during the Civil War, and the Court briefly had 10 justices. Congress then passed legislation in 1866 to reduce the Court to seven justices. That only lasted until 1869, when a new Judiciary Act sponsored by Sen. Lyman Trumbull put the number back to nine Justices, with six required at a sitting to form a quorum. (President Ulysses S. Grant eventually signed that legislation and nominated William Strong and Joseph Bradley to the newly restored seats.)

FDR’s controversial court packing plan

Since then, and even with President Franklin Roosevelt’s ill-fated threat in 1937 to add new justices who sympathized with his policies to the Supreme Court, the number of justices on the Court has remained stable at nine.

In 1935, Roosevelt was particularly upset by the Court’s decision in Schechter Poultry Corp. v. United States. The unanimous decision invalidated a key part of the National Industrial Recovery Act, one of the New Deal projects passed during FDR's 100-day program in 1933. “You see the implications of the decision. That is why I say it is one of the most important decisions ever rendered in this country,” Roosevelt told reporters on May 31, 1935. “We have been relegated to the horse-and-buggy definition of interstate commerce.”

As Roosevelt started his second term, he used one of his fireside chats in March 1937 to make his case to the American people for changing the Supreme Court. “This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said.

The legislation struggled to gain traction, and it was opposed not only by Chief Justice Charles Evans Hughes but also by Justice Louis Brandeis and members of Roosevelt’s Democratic Party. Soon, changing voting patterns on the Court along with vacancies made the court-packing plan a moot point.

Court expansion and the separation of powers

In recent years, talk of adding more members to the Supreme Court or changing eligibility requirements became active in public discourse after the failed Garland nomination. In 2019, Sen. Marco Rubio proposed a constitutional amendment to permanently fix the number of justices on the Court at nine, in response to reports that some Democrats were considering adding more justices after the 2020 elections if they had the power to do so.

In 2021, a presidential commission established by President Joe Biden on the Supreme Court took no position on the issue of court expansion. “The Commission as a whole takes no position on the validity or strength of these claims. Mirroring the broader public debate, there is profound disagreement among Commissioners on this issue,” its report said.

Bills proposed since the 2020 election to alter the Supreme Court have faced several challenges in addition to a lack of support in Congress. Among the direct powers delegated by the Constitution to Congress is the ability to change the number of justices on the Court, as established by precedent. Other changes such as imposing term limits based on years served and retirement age limits on the justices would likely require a constitutional amendment.

However, some members of Congress in recent years have introduced legislation to place an 18-year limit on Supreme Court service with exemptions for current justices. The Congressional Research Service remarked in 2023 that it was likely “that imposing term limits on new justices would also violate the Good Behavior Clause.” In that case, it could be up to the Supreme Court to decide the dispute in an interesting test of the separation of powers doctrine.

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

In Dershowitz v. Cable News Network, Inc., Harvard Law School professor emeritus Alan Dershowitz argues that reporting from CNN about his appearance in Senate impeachment trial proceedings in 2020 against President Donald Trump caused him reputational harm. Dershowitz argues that the omission of language by CNN from a statement he made to Sen. Ted Cruz would have been considered as defamation in any court if the precedent of “actual malice” from the New York Times case didn’t exist.

Dershowitz filed suit in the United States District Court for the Southern District of Florida, alleging that CNN had defamed him under Florida law. The court ruled for CNN, as did the 11th Circuit Court of Appeals. The courts acknowledged that CNN made mistakes in its reporting but not at the level of violating the actual malice test from Sullivan.

Now, Dershowitz and his attorneys want the Supreme Court to reconsider the landmark case.

Sullivan and Its Legacy

In March 1964, a unanimous Supreme Court in New York Times v. Sullivan held that public officials in defamation cases against the media needed to prove actual malice or that a statement “was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

Montgomery, Alabama’s police commissioner, L. B. Sullivan, had sued the New York Times for libel after it ran a full-page advertisement from civil right activists that criticized Sullivan’s police department and its treatment of civil rights protestors. But many specific statements in the ad were later conceded to have been false. Two courts in Alabama had ruled in Sullivan’s favor.

In New York Times v. Sullivan, the Supreme Court said the First Amendment protected the newspaper from a lawsuit filed by a “public official” such as Sullivan unless actual malice could be proven. Sullivan’s claims didn’t meet this rigorous standard. In his opinion for the Court, Justice William Brennan said the case needed to be considered in the context “of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Two other decisions extended the actual malice standard to “public figures”—notable figures who were not public officials. In Curtis Publishing Company v. Betts (1967), the Court held that public figures had to meet the same defamation test as public officials did under the New York Times precedent. And in Gertz v. Welch (1974), a divided Court ruled that the actual malice standard did not apply to people outside of those categories. “Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation,” wrote Justice Lewis Powell.

Recent Cases

In recent years, those precedents have faced several challenges in court. Former Alaska Governor Sarah Palin sued the New York Times in 2017 after its editorial page published a map from Palin’s political action committee that used crosshairs to mark the district of Democratic Congresswoman Gabrielle Giffords and 19 other districts. It initially claimed a link between the map and Giffords’ shooting, then retracted the statement. Palin claimed the newspaper defamed her reputation.

Palin’s case went to court twice. After an initial ruling was overturned due to procedural errors, a jury ruled in favor of the New York Times in April 2025. It found that the newspaper’s action did not meet the high standards of the actual malice test.

On June 27, 2022, the Supreme Court denied an appeal in Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center. Coral Ridge Ministries sought damages from the Southern Poverty Law Center (or SPLC) after the Center placed Coral Ridge on a “hate group” map. The map made Coral Ridge Ministries ineligible to take part in AmazonSmile, a program from the online retailer that gives a small royalty to non-profits granted access to the Smile program.

A federal judge ruled that the SPLC’s labeling of Coral Ridge Ministries was protected First Amendment speech since Coral Ridge Ministries met the definition of a public figure. A federal appeals court upheld the decision. The court’s denial of certiorari was accompanied by a dissent from denial authored by Justice Clarence Thomas, who has been a vocal critic of the 1964 New York Times v. Sullivan decision.

Thomas specifically called on the Court to review the actual malice standard. “This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” The actual malice standard, Thomas said, was almost impossible to satisfy.

Justice Neil Gorsurch also raised questions about the actual malice standard in his dissent from denial of certiorari in Berisha v. Lawson (2021). Berisha claimed he was falsely linked to illicit arms dealing in a book published by Simon & Schuster. “Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation,” Gorsuch wrote. “At least as they are applied today, it’s far from obvious whether Sullivan’s rules do more to encourage people of goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public life.”

Dershowitz’s Claims Explained

In his petition to the Supreme Court, Dershowitz and his attorneys focused on whether CNN’s errors and omissions constituted actual malice under the Sullivan definition; whether Sullivan’s actual malice test should be discarded altogether (or at least as to private citizens who are public figures); and whether the Court should modify the evidentiary standards for actual malice.

Dershowitz’s claims rested on his response to Cruz’s questions about what three categories pertained to constitutional standards for impeachment: (1) actions motivated by the public interest, (2) actions motivated by electoral interest, and (3) actions motivated by “personal pecuniary interest.” Dershowitz told Cruz in his testimony that actions related to the last category were “purely corrupt” as impeachable offenses.

However, Dershowitz argued that CNN’s subsequent reporting linked Dershowitz to including bribery and extortion as non-impeachable actions in his Senate exchange. Dershowitz also claimed the 11th Circuit Court of Appeals ruling on actual malice conflicted with similar decisions from the Second, Third, Fifth, and Ninth Circuits.

Additionally, Dershowitz questioned the distinction between public officials and private citizens categorized as public figures in defamation cases. “Even if some heightened protection for criticism of public officials might find policy support, Sullivan’s extension to private citizens who are public figures lacks any justification or historical anchor,” he told the Court.

In its response brief, CNN pointed to the fact that all courts “agreed that Dershowitz could not survive summary judgment because he had ‘no evidence’ that any CNN commentators entertained serious doubts that they had accurately represented Dershowitz’s statements in the Senate.” CNN also contested most of Dershowitz’s other claims and denied a circuit split. CNN pointed to the fact that it aired the full video of his comments and invited him on air on separate occasions to clarify his positions related to his Senate statements.

“Because Sullivan is a cornerstone of modern constitutional law, this Court could not remove the decision without causing lasting damage to a wide range of precedent,” it concluded.

So far, Dershowitz’s petition has been presented twice in private conference to the Justices. When the Court does act, it would not be surprising to see some comment from Justices Thomas or Gorsuch if the petition is denied.

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

On April 20, 2026, the Court agreed to grant a petition in St. Mary Catholic Parish v. Roy. 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 state of Colorado said the Catholic preschools could not receive funding if they excluded families from its preschools who disagreed with the Catholic Church’s teachings on gender and sexuality. The preschools also had not signed a nondiscrimination agreement as required by the state, claiming it violated their First Amendment rights.

The nondiscrimination agreement is based on a state law requiring that all eligible children receive “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, as such characteristics and circumstances apply to the child or the child’s family.”

The U.S. Court of Appeals for the Tenth Circuit affirmed 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.

The preschools believed that a recent Supreme Court decision, Carson v. Makin (2022), applied in its case. In Carson, a divided Court held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violated the Free Exercise Clause of the First Amendment.

In accepting St. Mary Catholic Parish, the Court denied a request to consider whether Employment Division v. Smith should be overturned. Instead, it will consider how the two Supreme Court precedents, Smith and Carson, apply when lower courts consider if a government is explicitly excluding religious people and institutions from public benefits.

Court Precedents

While Employment Division v. Smith does not face immediate reconsideration, it will be front and center in the various arguments and briefs considered by the Court in the next few months.

The Smith case involved two Native Americans dismissed from their jobs at a private drug rehabilitation organization after failing a drug test. They were also denied state unemployment benefits. The two men had smoked peyote during a religious ceremony, and they claimed their activities were protected under the First Amendment’s Free Exercise Clause.

In his majority opinion, Justice Antonin Scalia wrote that the men sought “to carry the meaning of ‘prohibiting the free exercise [of religion]’ one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice.”

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” Scalia concluded. At the time Smith was decided, several liberal justices objected to the majority opinion. “This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a ‘luxury’ that a well-ordered society cannot afford,” wrote Justice Harry Blackmun in his dissent.

However, in recent years, conservative justices have criticized the Smith decision, and three rulings have further defined the intersection of state and private religious interests in matters related to government funding.

In Trinity Lutheran Church of Columbia v. Comer (2017), a church applied for a Missouri state grant to purchase recycled tires made into materials used to resurface playgrounds. Trinity Lutheran wanted the funds for its preschool, which had an open admission policy not related to faith. The state denied the grant request as conflicting with the Missouri state constitution, which forbid public funds “in aid of any church, section or denomination of religion.”

In his majority opinion, Chief Justice John Roberts held the state’s funding policy “violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.”

Three years later in Espinoza v. Montana Department of Revenue (2020), Montana established a program that granted tax credits for donations to organizations that awarded private school tuition scholarships. The state then imposed a rule barring aid to any private school “controlled in whole or in part by any church, sect, or denomination.” Three parents sued after they were denied scholarship funds for their children’s tuition at Stillwater Christian School.

Chief Justice Roberts again wrote for the majority. “The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause,” Roberts concluded. Citing Trinity Lutheran, Roberts said Montana’s no-aid rule “excludes religious schools from public benefits solely because of religious status.” Such actions failed the Court’s strict security test, he said, where the government’s action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”

Which Test Applies: Smith or Carson?

The Court’s most recent decision, Carson v. Makin from 2022, where again Roberts wrote the majority opinion, is at the center of St. Mary Catholic Parish v. Roy, heading toward arguments in the next term.

In Carson, Maine enacted a tuition assistance program for parents who resided in school districts without a secondary school or without a contract with a particular school in another district. Parents designated other secondary schools for their children to attend, and the school district transmitted payments to those schools to help defray the costs of tuition. But Maine only allowed tuition payments to “nonsectarian” schools, including certain private schools. Parents sued the state, claiming the denial of tuition assistance for schools affiliated with churches violated the Free Exercise Clause.

In his opinion, Roberts held that the Trinity Lutheran and Espinoza precedents applied again. “The ‘unremarkable’ principles applied in Trinity Lutheran and Espinoza suffice to resolve this case,” Roberts said. “While the wording of the Montana and Maine provisions is different, their effect is the same: to ‘disqualify some private schools’ from funding ‘solely because they are religious.’”

The Court agreed to decide two specific questions in St. Mary Catholic Parish v. Roy: “Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct” and “Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.”

The petitioners, St. Mary Catholic Parish, argue that Carson applies as “a clear rule” here: “If religious groups are excluded from a government funding program ‘because of their religious exercise,’ strict scrutiny applies.” They fault the Tenth Circuit for basing its decision on Employment Division v. Smith and the concept that there must be unmistakable evidence that religious use has been directly targeted. In a follow-up brief, the petitioners also argue that Colorado claims to welcome religious preschools “provided they abandon disfavored religious practices.”

In Tenth Circuit’s opinion, the court held that Trinity, Espinoza and Carson did not apply in this case since faith-based preschools were encouraged to take part in the program. “The only relevant limitation on any preschool’s participation is the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular,” the court wrote. “The nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights,” the appeals court concluded.

For now, briefs are due at the Court in late June and August, potentially putting arguments in front of the justices in the first part of its next term in what is sure to be a closely watched case.

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

“She entered the room—perhaps in Boston’s Town Hall, the Old Colony House—carrying a manuscript consisting of twenty-odd poems that she claims to have written. No doubt the young woman would have been demure, soft-spoken, and frightened, for she was about to undergo one of the oddest oral examinations on record, one that would determine the course of her life and the fate of her work, and one that, ultimately, would determine whether she remained a slave or would be set free. The stakes, in other words, were as high as they could get for an oral exam. She is on trial and so is her race.”

In his 2003 book The Trials of Phillis Wheatley, Henry Louis Gates Jr., the renowned scholar of African American literature and culture, conjures this mise-en-scène as he imagines the process by which a young Phillis Wheatley was forced to prove her literary capabilities to a cadre of eighteen men self-described as “the most respectable characters in Boston.” The exact nature of this exam is lost to history, living only in the creative imaginations of writers like Gates; indeed, some historians argue that an explicit examination never occurred at all—Vincent Carretta, a Wheatley biographer, suspects that these “respectable characters” were part of the same affluent Boston social milieu as Wheatley’s enslavers, and, by interacting with the young Phillis over time, had become convinced of her authorship.

Whatever did or did not occur in her authentication process, we do know that, somehow, Wheatley convinced these eighteen men to endorse her work. Prefacing her 1773 publication, Poems on Various Subjects: Religious and Moral, one can find an attestation stating that “WE whose Names are under-written, do assure the World, that the POEMS specified in the following Page, were (as we verily believe) written by Phillis, a young Negro Girl.”

An attestation of authorship seems odd to our 21^st-century sensibilities. However, this verification was, unfortunately, necessary for Wheatley in the 18^th century. She was writing at a time when the thought of a Black, female, enslaved poet was unthinkable to most Euro-American audiences. In fact, with Poems on Various Subjects, Wheatley became the first enslaved woman to publish a book.

So, who was Phillis Wheatley? How did she come to be such a central figure in colonial Boston’s literary landscape?

The woman we now know as Phillis Wheatley was born around 1753 in West Africa. The exact location of her birth is still under debate: until recently, most historians had believed Wheatley to be from the Senegambia region; however, new scholarship has posited that she may have been born in what is present-day Sierra Leone. At roughly 7 years old, she was kidnapped by slave traders and brought to Boston on a slave vessel called the Phillis––after which she would later be renamed. In Boston, she was purchased by John and Susanna Wheatley, a wealthy merchant family. Phillis quickly displayed an aptitude for learning and was eventually tutored by the Wheatleys’ daughter, Mary. Phillis received a classical education: learning Latin, reading English literature, and studying astronomy and geography.

Phillis was drawn to verse, penning her first poem in 1767. In 1770, she attracted transatlantic attention by authoring an elegiac poem to George Whitefield, a prominent British evangelist. The 1773 publication of Poems on Various Subjects made her a veritable celebrity, garnering the admiration of figures such as French philosopher Voltaire, as well as Philadelphia luminary Benjamin Franklin.

Indeed, throughout her life, Wheatley intersected with several of the nation’s Founding Fathers. For example, John Hancock, whose famous signature is immortalized on the Declaration of Independence, was one of the eighteen men who attested to Wheatley’s authorship. Moreover, in 1775, Wheatley penned an ode to then-General George Washington, which she sent directly to him, accompanied by a letter expressing her excitement over his appointment as “Generalissimo of the armies of North America.” In February of the following year, Washington responded, praising Wheatley’s “great poetical Talents” and promising to see the author “so favourd [sic] by the Muses.”

Despite her undeniable talent, Wheatley’s commercial success did not endure. After receiving her freedom in 1773, Phillis remained at the Wheatley home until John Wheatley’s death in 1778. Soon after, she married John Peters, a free Black man. Peters was initially a prosperous businessman; however, he fell victim to the post-Revolution economic depression, from which the family never recovered. Beyond this point, Wheatley Peters (as it is now customary to refer to her after her marriage) was largely unsuccessful in publishing her poems—a Boston printer denied her request to put together a second volume of her work, which she intended to dedicate to Benjamin Franklin.

However, even while working as a maid, she never stopped writing. Scholars now believe that Wheatley Peters may have written nearly 150 poems during her marriage to John Peters. These records are, unfortunately, lost to history.

Tragically, Phillis Wheatley Peters died, impoverished, on December 5, 1784, at the age of 31.

Yet even after her death, Wheatley Peters—the nation’s first Black poet—remained an important figure in the early Republic’s debates over slavery. Abolitionists frequently turned to her as evidence against prevailing notions of Black unintelligence and inhumanity. Defenders of slavery and detractors of Black capability, such as Thomas Jefferson, likewise focused on Phillis Wheatley Peters—trying to discredit her work. Indeed, in Notes on the State of Virginia, Jefferson infamously wrote of Wheatley Peters that “Religion indeed has produced a Phillis Whately [sic]; but it could not produce a poet. The compositions composed under her name are below the dignity of criticism.” Wheatley Peters would remain the paradigmatic example of African American literary talent until the ascendance of Frederick Douglass as a national figure in the 1840s.

Well after the abolition of slavery, debates around Wheatley Peters and her poetic work have endured—stretching into the 20th century. In the 1960s and 1970s, echoing previous criticisms by novelist Richard Wright and literary scholar J. Saunders Redding, Black activists took umbrage with Wheatley Peters for what they interpreted as accommodationist or suppliant views on race and slavery. Most of this opprobrium traces to the eight lines which comprise the poem, On Being Brought from Africa to America:

'Twas mercy brought me from my Pagan land,

Taught my benighted soul to understand

That there's a God, that there's a Saviour too:

Once I redemption neither sought nor knew.

Some view our sable race with scornful eye,

"Their colour is a diabolic die."

Remember, Christians, Negros, black as Cain,

May be refin'd, and join th' angelic train.

Gates suggests that, historically, On Being Brought from Africa to America has been “the most reviled poem in African American literature.” And, at face value, Wheatley Peters’ words seem to validate the logic that enslavers used to justify the kidnapping and ownership of human beings. However, Gates and other more recent scholars have attempted to rehabilitate Wheatley Peters’ legacy by challenging reductive interpretations of her racial politics.

They have demonstrated that, elsewhere in her oeuvre and in personal letters to friends, Wheatley Peters is sharply critical of the institution of slavery and the hypocrisy of American racism. Moreover, historians and literary scholars have highlighted Wheatley’s engagement with 18^th-century Anglo-America abolitionists, such as Reverend Samuel Hopkins and Granville Sharpe.

For far too long, the scope of Wheatley Peters’ political vision was occluded by criticism of this one poem; luckily, we are beginning to move beyond overly simplistic categories and rediscover Phillis Wheatley Peters as a full and complex writer and human being.

Today, Wheatley Peters’ poems are studied in universities across the country, and she has rightly been returned to her place in the pantheon of African American letters.

Trey Sullivan is a Content Fellow at the National Constitution Center and a PhD candidate in History at the University of Cambridge, where he is a Marshall Scholar.

On Monday, in an unsigned order, the justices returned State Board of Election Commissioners v. Mississippi State Conference of the NAACP and Turtle Mountain Band of Chippewa Indians v. Howe to the lower courts to be reconsidered in light of the Supreme Court’s recent decision in Louisiana v. Callais. In that 6-3 ruling from late April, the Court narrowed the ability of states to use race as a determining factor under the Voting Rights Act’s Section 2 in creating election districts.

In his majority opinion in Callais, Justice Samuel Alito wrote that any use of race in considering the composition of voting districts needed to meet the Court’s most demanding test: strict scrutiny. Justice Elena Kagan called the majority ruling “the latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

The unsigned order will start the process of integrating the Court majority’s thinking from Callais into how the lower courts may consider when private parties can file claims of racial discrimination in election redistricting cases.

The question of private enforceability of the Voting Rights Act

The Turtle Mountain Band of Chippewa Indians and Mississippi State Conference of the NAACP cases were argued in different courts, but they dealt with same issue: Who can file a voting district discrimination claim under the Voting Rights Act or Section 1983, a powerful civil rights statute dating back to the Reconstruction era? In the Turtle Mountain Band case, the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and three Native American voters sued the North Dakota Secretary of State, alleging that new district election boundaries discriminated against their rights under the Voting Rights Act’s Section 2.

While a district court ruled in the Turtle Mountain Band’s favor, the Eighth Circuit Court of Appeals reversed that decision. The appeals court said that only the attorney general, and not private parties, could seek to enforce Section 2 violations. It also held that the plaintiffs could not cite Section 1983 as allowing them to pursue a claim in court.

In the Mississippi NAACP case, a three-judge panel for the United States District Court for Southern District of Mississippi Northern Division agreed with the plaintiffs that the state’s 2022 state legislature redistricting maps violated Section 2 of the Voting Rights Act as racial gerrymanders. The state appealed to the Supreme Court, claiming private parties may not sue to enforce Section 2 of the Voting Rights Act or seek Section 1983 action to pursue a claim.

The precedents about private enforceability

The big question in the Turtle Mountain Band and Mississippi NAACP cases is the fate of the precedents about the implied rights of private parties to pursue their own Voting Rights Act or Section 1983 enforcement actions. In Turtle Mountain’s writ of certiorari to the Supreme Court, the petitioner cited data from various sources that, nationally, private plaintiffs brought approximately 91 percent of all Voting Rights Act Section 2 challenges between 1982 and 2024. “Section 2 has always been enforced primarily by private litigants. The Eighth Circuit’s decision thus deprives voters in seven states of the ability to protect their own rights under Section 2,” they argued in their petition.

The petitioners also claimed that the Eighth Circuit’s ruling conflicted with the Supreme Court’s precedent of Morse v. Republican Party of Virginia (1996), where the Court agreed that a private right of action existed to enforce Section 10 of the Voting Rights Act. They also cited another precedent, Gonzaga v. Doe (2002), which allows for statutory tests for causes of private action under Section 1983.

Among the arguments against private enforceability of the Voting Rights Act is the decision from a divided Eighth Circuit in 2025 that cited its own recent precedent in Arkansas State Conference NAACP v. Arkansas Board of Apportionment (2023). In that decision, a divided panel upheld a district court ruling that “the Voting Rights Act lists only one plaintiff who can enforce Section 2: the Attorney General.”

North Dakota’s secretary of state Michael Howe, in his response to the Turtle Mountain Band’s petition, argued that the courts have not fully considered private enforceability questions. “Until very recently, few courts appear to have actually analyzed whether vote dilution claims are properly enforced by private parties, whether directly under Section 2 or through Section 1983. And long-held assumptions—especially about whether Congress intended to allow statutory claims to be privately enforced—have proven to be unfounded once the Court takes a closer look.”

Howe cited Medina v. Planned Parenthood (2025), where a divided Supreme Court decided that the Medicaid Act’s "any qualified provider" provision did not create a private right of action that individuals can enforce in federal court under Section 1983.

The Supreme Court’s order calls for the two lower courts to consider the Callais decision as a factor in deciding who can bring a Voting Rights Act or Section 1983 challenge about voting districts. The new stricter evidence requirements from Callais would also require higher levels of proof of present-day intentional racial discrimination to pursue a claim. For now, the two cases are starting over in the lower courts, but they may not stay there for long.

In his concurring opinion in Brnovich v. Democratic National Committee (2021), Justice Neil Gorsuch noted that “our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under Section 2. Lower courts have treated this as an open question.” While that question was not at the Court in Brnovich, it will be in front of justices soon.

As for Monday’s order, it was issued with objections from Justice Ketanji Brown Jackson. The two cases presented “only the question of Section 2’s private enforceability, which our decision in Louisiana v. Callais did not address,” Jackson wrote in Monday’s order. She would have affirmed the Mississippi decision and reversed the Turtle Mountain Band decision.

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

Oliver Wendell Holmes Jr. was born in Boston on March 8, 1841. His father, Holmes Sr., was famous throughout America and Europe for his poetry and medical prowess. Young “Wendell,” as Holmes Jr. was then known, grew up in the shadow of his celebrated father, fueling a lifelong rivalry between them. Navigating these paternal tensions, Holmes grew up as a member of Boston’s elite, learning history, mathematics, Greek, and Latin at a small private school run by Epes Dixwell, a family friend. Like so many of Boston’s young patricians, Holmes found himself at Harvard before long, matriculating in the fall of 1857.

In April 1861, the Civil War began when Confederate forces from South Carolina, the first state to secede from the Union, attacked the small Union garrison at Fort Sumter. Holmes was in his senior year at Harvard. Motivated by abolitionist sympathies and a strong sense of martial honor, Holmes left for Fort Independence to enlist in the Army. After briefly returning to Harvard to take his final exams and claim his degree, the young Holmes headed south as a lieutenant in the recently formed 20th Regiment.

Holmes was lucky to survive the Civil War. During his military service Holmes was shot in his stomach, chest, neck, and foot. The two musket balls lodged in his chest at the Battle of Ball’s Bluff were only a few inches from his heart and lungs. Each injury was life-threatening and required him to briefly travel home to recover before returning to the war. He went home for good in 1864, beleaguered and undoubtedly traumatized. As biographer Gary J. Achele notes, after the war, “[n]othing ever seemed quite right again” to Holmes. He was haunted by the “faces of his fallen comrades,” and attempted to “justify his life by achieving some great success.”

Before His Supreme Court Tenure

Holmes enrolled in Harvard Law School in the fall of 1864. In those days, legal education consisted largely of reading major treatises such as William Blackstone’s Commentaries and absorbing mountains of case law. As was not uncommon, Holmes left Harvard after two years to clerk for Robert Morse, a well-respected lawyer.

After passing the bar in March 1867, Holmes devoted much of his time to his law practice but remained strongly drawn to scholarship. Holmes seized the chance to become coeditor of the American Law Review, publishing six essays and around 60 notes over his three-year tenure. His first groundbreaking intellectual work came in 1880 when he was asked to deliver the Lowell Lectures, which he famously published under the title The Common Law. In analyzing the history of the common law, Holmes began to develop a philosophy of law often referred to as “legal realism”: the idea that law is shaped as much by how it operates in practice as by statutes and formal legal rules. In Holmes’ words, “[t]he felt necessities of the time … have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

The Common Law earned Holmes a reputation as a legal scholar. He briefly accepted a post as a professor at Harvard Law School before being appointed to the Massachusetts Supreme Judicial Court in 1882. Alongside his judicial duties, Holmes continued to publish articles and speeches. Perhaps the most important of these came in 1897 in a dedication address at Boston University School of Law entitled The Path of the Law. In the speech, Holmes asked his audience to consider law from the perspective of a hypothetical “bad man.” “If you want to know the law and nothing else,” Holmes argued, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.” This thought experiment was meant to dispel the “confusion between morality and law,” and offer to lawyers the ability to see the law as mere “prophecies of what the courts will do in fact.”

In 1899, Holmes succeeded Walbridge A. Field as chief justice of the Massachusetts Supreme Judicial Court. Holmes had been slowly increasing his workload, and, by this point, he was a seasoned jurist. His time in the post did not last long, however, as he was soon considered for a seat on the U.S. Supreme Court.

Holmes on the Supreme Court

In June 1902, Justice Horace Gray announced his plan to retire. Gray had himself served on the Massachusetts court where Holmes was then serving as chief justice. Holmes was recommended to President Theodore Roosevelt by Sen. Henry Cabot Lodge, who wrote to the president that “he is our kind right through.” It took a meeting between Holmes and Roosevelt at Oyster Bay to seal the deal. Oliver Wendell Holmes Jr. took the oath of office to join the Supreme Court in December of 1902.

In the 1905 Supreme Court case, Lochner v. New York, the Court invalidated a state law limiting work hours for bakers. The majority relied on “liberty of contract,” the right of an individual to freely sell his or her labor. In one of the most famous dissents in the Court’s history, Justice Holmes argued for judicial restraint and claimed the majority had read their own economic views into the Constitution. To Justice Holmes, his own “agreement or disagreement” with a given opinion “has nothing to do with the right of a majority to embody their opinions in law.” The Constitution, argued Justice Holmes, is not “intended to embody a particular economic theory” but is rather “made for a people of fundamentally differing views.”

During World War I, the Court upheld three convictions for anti-war speech under the 1917 Espionage Act. Justice Holmes wrote all three majority opinions, reasoning in Schenck v. United States that such speech presented a “clear and present danger” of obstructing military recruitment. Yet when a similar question was soon presented in Abrams v. United States, this time involving communist anti-war leaflets, Holmes did something remarkable: He changed his mind. As historian Thomas Healy has uncovered, through conversations with up-and-coming scholars Harold Laski and Felix Frankfurter, Holmes reconsidered his position, reimagining First Amendment jurisprudence in the process.

Justice Holmes’ Abrams dissent provided a powerful rationale for robust free speech protections based on the marketplace of ideas. “[W]hen men have realized that time has upset many fighting faiths,” wrote Justice Holmes, “they may come to believe … that the ultimate good desired is better reached by free trade in ideas.” The “best test of truth” does not come from government intervention but the “power of the thought to get itself accepted in the competition of the market.” In the estimation of Robert Post, Justice Holmes’s opinion “virtually invents First Amendment doctrine.”

The darkest blot on Justice Holmes’s legacy came in 1927 with the case Buck v. Bell. Justice Holmes wrote the majority opinion upholding a Virginia law allowing forced sterilization in mental health institutions. The decision is indefensible, even as a product of its time. As Victoria Nourse notes, by 1927 the “intellectual heyday” of eugenics had already passed, and multiple lower courts had rejected “eugenic sterilization.” The Justice’s opinion is, quite simply, lawless, motivated by prejudice rather than constitutional principle. It is hard to ever fully separate the rest of his life and career from the tragedy of Buck v. Bell.

Oliver Wendell Holmes Jr. retired from the Court in 1932, stating in his brief letter of resignation that “the time has come and I bow to the inevitable … My last word should be one of grateful thanks.” He passed away three years later. Scholarly interest in Holmes has hardly waned in the near century since his death. Once almost universally venerated, Holmes has been endlessly debated—labelled arrogant, heroic, nihilistic, and genius. In the words of G. Edward White, Holmes has been “all things to all commentators.” A flawed man who attempted to vindicate his survival of war by making something of his life, Holmes unquestionably succeeded in leaving his mark.

Tristan Worsham is a National Constitution Center content fellow and a graduate of the University of California, Berkeley.

References:

Abrams v. United States, 250 U.S. 616 (1919)

Gary J. Achele, Oliver Wendell Holmes, Jr. (Twayne Publishers, 1989).

Buck v. Bell, 274 U.S. 200 (1927)

Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Metropolitan Books, 2013)

Oliver Wendell Holmes Jr., The Common Law (Little, Brown, and Company, 1881).

Oliver Wendell Holmes Jr.,  “The Path of the Law,” Harvard Law Review 10, no. 8 (1897): 457-478.

Lochner v. New York, 198 U.S. 45 (1905)

David Luban, “The Bad Man and the Good Lawyer: A Centennial Essay on Holmes's The Path of the Law,” New York University Law Review 72 (1997): 1647-1543.

Victoria Nourse, “Buck v. Bell: A Constitutional Tragedy from a Lost World,” Pepperdine Law Review 39 (2011): 101-117.

Robert Post, “Writing the Dissent in Abrams,” Seton Hall Law Review 51 (2020): 21-39.

Schenck v. United States, 249 U.S. 47 (1919)

Edward White, “Looking at Holmes in the Mirror,” Law and History Review 4, no. 2 (1986): 439-465.

Currently, one case in front of the justices as part of its interim or emergency docket is the fate of mail-order access to mifepristone, a medication used as part of a regimen to end pregnancies. Two current emergency petitions, GenBioPro v. Louisiana and Danco Laboratories v. Louisiana, are under consideration this week on an expedited basis.

While merits cases at the Supreme Court take time to develop, the expedited mifepristone cases are typical of the current state of the emergency docket. Critics of the growing number of emergency applications to the Court refer to this set of cases as the Court’s “shadow docket,” a term coined by law professor William Baude in 2015 to describe what he called “a range of orders and summary decisions that defy its normal procedural regularity.” Not everyone agrees with that term and its definition, but the mifepristone cases will be front and center in the docket debate.

The GenBioPro v. Louisiana and Danco Laboratories v. Louisiana petitions come in the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which sent the issue of abortion regulation back to the states. After Dobbs, the Biden administration allowed the Food and Drug Administration (FDA) to expand access to mifepristone through online prescriptions without an in-person doctor visit. In October 2025, the state of Louisiana sued the FDA, claiming the medication had not been adequately tested and resulted in abortions considered as illegal in the state.

On May 1, 2026, the Fifth Circuit Court of Appeals issued a ruling in Louisiana v. FDA that agreed with Louisiana’s claims; however, three days later, the Supreme Court justice with responsibility for the Fifth Circuit, Samuel Alito, granted an administrative stay, which allowed continued mail access to mifepristone while the Court considered the matter. Two drugmakers, Danco Laboratories and GenBioPro, claimed various harms from the Fifth Circuit ruling.

Merits cases versus Non-Merits matters

Many people are familiar with what are considered “merits” cases as considered by the Supreme Court. These cases come from several different paths to the Court and typically involve a disagreement, or split, between decisions by federal circuits and state supreme courts, alleged violations of the Constitution and its precedents, or in some cases, disagreements between states. Public arguments are heard at the Supreme Court after briefs are filed by the parties involved and friends of the court. And the Court hands down its decisions after internal deliberations, with opinions attached.

Non-merits matters are all other appeals and requests considered by the Court that are not merits cases. The most common of these are petitions for writs of certiorari, or requests made to the Court to hear appeals. Various estimates of these “cert” petitions range from 4,000 to 8,000 per year, with 80 or so accepted by the Court for arguments each term. The Court also handles procedural orders about how cases are filed and time extensions for arguments.

The other major part of the Court’s non-merits matters docket are emergency orders involving requests for injunctive relief and stays. For parties seeking injunctions, they may seek a preliminary injunction, which is issued early in the legal process to preserve the status quo as a case makes its way through the courts and develops a record. A stay is an action taken by a court to pause a government action. Parties asking for a stay pending appeal often want the Supreme Court to pause an injunction issued by the lower courts while the appeals case is litigated. These are seen as temporary relief actions, unlike permanent injunctions that remain in place until a court decides a case on the merits.

According to the Congressional Research Service, the interim docket consists of cases involving preliminary injunctions and stays pending appeal. If parties on the interim docket seek expedited consideration claiming imminent practical harm, the cases are considered “emergency matters” that have been labeled as the "emergency docket or, by some scholars and commentators, the “shadow docket.”

Cases on the Interim Docket

One of the recent controversies over the interim or emergency docket is the increase of cases using that pathway to the Supreme Court.

In the current term, 51 significant emergency appeals were submitted to the Court, according to a list compiled by SCOTUSblog. As of May 12, 2026, seven applications were pending, including two appeals seeking “to pause a ruling from the U.S. Court of Appeals for the 5th Circuit preventing mifepristone from being prescribed by telemedicine and delivered by mail.” The remaining appeals are part of cases that were argued in front of the justices on the temporary protected status of immigrants, the use of presidential powers to remove executive officers, and the redistricting of congressional election maps.

On May 11, 2026, three interim docket cases involving Alabama’s redistricting maps were decided as moot by Justice Clarence Thomas. Among the other applications this term, per SCOTUSblog, the federal government prevailed in Trump v. Orr (about transgender and nonbinary identification language on passports) and Trump v. Boyle (about the firing of three Consumer Product Safety Commission members).

The frequent appearance of cases on the interim docket in the second Trump administration has been much discussed. In July 2025, Erwin Chemerisnky of UC Berkeley School of Law noted that the number of interim docket cases grew from 44 in the last year of the Biden administration to 113 during the first six months of the second Trump administration.

In his book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” Steve Vladeck of the Georgetown University Law Center argued that the use of the interim docket has led to decisions from the Court with a significant impact on major cases with the benefit of full briefings, public arguments, and full written opinions from the justices.

In an online discussion with Vladeck in 2024, Trevor N. McFadden, a federal district judge of the United States District Court for the District of Columbia, noted that the use of the term “shadow docket” was problematic. “Using the term shadow docket when we’re really talking about the Court’s emergency docket is both confusing — because it’s over-inclusive — and misleading, because it conjures images of something sinister or foreboding. In reality, most courts have a docket to handle matters that require expedited treatment,” McFadden said.

To be sure, the debate over the interim docket, and the appropriate names of actions taken under its jurisdiction, will not be going away soon. In March 2026, Justices Ketanji Brown Jackson and Brett Kavanaugh spoke at an event in Washington when the subject of the interim docket came up, including in the context of the mifepristone cases.

According to an account from the New York Times, Kavanaugh said emergency requests were “not a new phenomenon” and had been growing during the Biden administration. Kavanaugh cited an emergency request by the Biden administration to keep mifepristone access in place during the appeals process.

Jackson believed the Trump administration was using the docket to approve new policies, citing the mifepristone cases. “I just feel like this uptick in the court's willingness to get involved ... is a real unfortunate problem," Jackson told an audience, according to various reports. “It's not serving the court or this country well.”

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

The Court started the current term on October 6, 2025, hearing arguments in Villarreal v. Texas, where the justices considered a Sixth Amendment case about an attorney from talking to his client during an overnight recess. It concluded on April 29, 2026, with Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a dispute over generic drug labeling and patent infringement.

The justices heard a total of 58 cases in seven months with 29 opinions released. The list of major cases already decided includes opinions on conversion therapy, the Voting Rights Act, and the president’s tariffs powers. Remaining are at least 10 major decisions, including birthright citizenship, mail-in voting, transgender athletes’ rights, campaign finance, the ability of the president to fire federal officers, the Fourth Amendment, and immigration. Here is a list of the major cases decided and those still to come.

Major Cases Decided

Tariffs

Learning Resources v. Trump

In a 6-3 decision, the Court ruled that the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs. In his majority opinion, Chief Justice John Roberts wrote that “against that backdrop of clear and limited delegations, the Government reads IEEPA to give the president power to unilaterally impose unbounded tariffs and change them at will. That view would represent a transformative expansion of the President’s authority over tariff policy.”

In the main dissent, Justice Brett Kavanaugh believed President Donald Trump could use IEEPA “in light of the statutory text, longstanding historical practice, and relevant Supreme Court precedents.”

Voting Rights Act

Louisiana v. Callais

A divided Supreme Court in a 6-3 decision narrowed the ability of states to use race as a determining factor in creating election districts. The decision focused on Section 2 of the Voting Rights Act of 1965 (or VRA), a landmark achievement of the Civil Rights Movement.

In his majority opinion in Callais, Justice Samuel Alito wrote a Louisiana law went against the purpose of the VRA. “Because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8, and that map is an unconstitutional racial gerrymander,” Alito said.

In her dissenting opinion, Justice Elena Kagan was deeply skeptical of the majority opinion, which Kagan labeled as the “latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

Conversion Therapy

Chiles v. Salazar

Colorado and 20 other states have laws prohibiting mental health professionals from using conversion therapy on minors because it is considered unsafe and ineffective. The purpose of conversion therapy is to change a person’s gender identity or sexual orientation. Talk therapy with that purpose fell under Colorado’s prohibition.

In an 8-1 decision, Justice Neil Gorsuch held that Colorado’s law regulated speech based on viewpoint, violating the First Amendment. “The First Amendment stands as a bulwark against any effort to prescribe an orthodoxy of views, reflecting a belief that each American enjoys an inalienable right to speak his mind and a faith in the free marketplace of ideas as the best means for finding truth,” he concluded.

In her dissent, Justice Ketanji Brown Jackson said “Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional. In concluding otherwise, the Court’s opinion misreads our precedents, is unprincipled and unworkable.”

Cases Argued and Awaiting Decisions

Transgender Athletes

Little v. Hecox and West Virginia v. B.P.J.

In two cases scheduled heard separately on the same day, the Court considered the extent to which gender identity and biological assignment at birth can be used as factors in scholastic sports competitions. In Little, the Idaho Legislature enacted the Fairness in Women’s Sports Act, which bases competition on biological assignment at birth. The Ninth Circuit Court of Appeals ruled the law violated the 14th Amendment Equal Protection rights of “transgender women and girls.” In the case from West Virginia, a parent sued on behalf of her child, B.P.J., arguing that a state law banning biological boys who identify as girls from competing on girls’ teams was unconstitutional. The district court ruled in favor of the state on Equal Protection Clause and Title IX grounds. A divided Fourth Circuit Court of Appeals overturned the district court decision in favor of the student on the Title IX claim and ruled against the state on the Equal Protection questions.

The Second Amendment

Wolford v. Lopez

The state of Hawaii passed a law making it a crime for a person with a concealed carry permit to carry a handgun on private property unless they have been "given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property." The Ninth Circuit Court of Appeals ruled in favor of the state. The petitioners cite a Second Circuit ruling on the same question regarding a similar law that the court struck down.

United States v. Hemani

On a different Second Amendment question, the Fifth Circuit Court of Appeals invalidated a federal law that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” concluding that the law violated the Second Amendment in most instances. The Solicitor General argued that the Supreme Court should uphold the law upheld because of “narrow circumstances in which the government may justifiably burden” firearms possession, including when “habitual illegal drug users with firearms present unique dangers to society.”

Presidential Removal Powers

Trump v. Slaughter

The Court is considering a dispute over the ability of the president to fire Federal Trade Commission (FTC) members. In March 2025, President Trump removed Rebecca Kelly Slaughter from her position as a commissioner for the FTC. Slaughter countered by suing Trump and others, claiming her dismissal violated the terms of the Federal Trade Commission Act.

The U.S. District Court for the District of Columbia found that Slaughter’s firing violated a precedent set in Humphrey’s Executor v. United States (1935), which established the constitutionality of the FTC’s removal protections. The questions at the Court are:

1) Whether the statutory removal protections for members of the FTC violate the separation of powers and, if so, whether Humphrey’s Executor v. United States should be overruled.

(2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

Trump v. Cook

The Supreme Court also will decide if it should stay a district court ruling preventing President Trump from firing Lisa Cook, a member of the Federal Reserve Board of Governors. Cook started serving a 14-year term in the board in 2023 and President Trump tried to fire Cook this year, alleging mortgage fraud by Cook before her appointment. Under the Federal Reserve Act, the president can only remove members of the Federal Reserve Board “for cause.”

Birthright Citizenship

Barbara v. Trump

In June 2025, the Supreme Court first considered the birthright citizenship question in the context of national injunctions related to President Trump’s executive order on birthright citizenship. The justices did not rule on the merits of Trump’s order then. But now the Court will consider the executive order’s claim that the Citizenship Clause of the 14th Amendment was adopted to confer citizenship on formerly enslaved people and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. Wong Kim Ark and other precedents have held that a child born in the United States is entitled to all the rights and privileges of citizenship regardless of their nationality, with limited exceptions.

Absentee Federal Election Ballots

Watson v. Republican National Committee

This case considers whether a federal law or a state law determines when absentee federal election ballots can be counted if they are mailed before election day and arrive late. Under Mississippi’s statute, it requires that ballots for federal offices be cast— marked and submitted to election officials—by that day. Mississippi allows mail-in absentee ballots to be counted if they are received by election officials within 5 business days after election day. The Fifth Circuit Court of Appeals held that the federal election-day statutes require ballots be cast by voters and received by election officials by election day and Mississippi’s law was pre-empted by the federal statute.

Cellphone Data Access

Chatrie v. United States

A Virginia man claims a detective did not reasonably obtain the search warrants required by the Fourth Amendment to track down his cellphone location data. The government later used this data to convict him of a crime. Law enforcement had asked for a geofence warrant from a magistrate. Geofence warrants set a distance from a certain physical point from which service providers must provide data to law enforcement about mobile phones users’ activities.

While the Court is only asked in Chatrie to consider the specific execution of the geofence warrant in the case, its decision could shape the Fourth Amendment protections established for cellphone users in Carpenter v. United States (2018).

Immigration

Mullin v. Doe

In the case, the Supreme Court will decide whether the Trump administration can end the Temporary Protected Status (TPS) program for approximately 6,100 Syrian and 350,000 Haitian nationals.

The administration argues that federal law bars courts from reviewing any Department of Homeland Security determination regarding TPS terminations. The Syrian challengers argued that the DHS needed to follow the rules set by Congress, while attorneys for the Haitian challengers argued that the decisions were based on “racial animus towards non-white immigrants and bare dislike of Haitians, in particular.”

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

Sumner was born in Boston on Jan. 6, 1811, as the eldest of nine children. His father, Charles Pinckney Sumner, was a lawyer and county sheriff who harbored antislavery views unusual for his time and class. After graduating from Harvard College in 1830 and Harvard Law School in 1833, Sumner spent two years traveling and studying in Europe before returning to Boston to practice law.

Sumner initially devoted himself to reform causes rather than electoral politics, writing and lecturing on prison conditions, public education, and the peace movement. In 1845, he delivered a Fourth of July address in Boston attacking the Mexican-American War as an instrument of slaveholder expansion. “War crushes with bloody heel all justice, all happiness, all that is Godlike in man,” he said. “In our age there can be no peace that is not honorable; there can be no war that is not dishonorable.”^[2] Sumner aligned first with the Conscience Whigs and then with the Free Soil Party before a coalition of Free Soilers and Democrats elected him to the U.S. Senate in 1851.

Sumner’s Political Career

Sumner arrived in the Senate as part of a Free Soil-Democratic coalition and quickly established himself as the chamber’s most unsparing antislavery voice. In his 1852 speech, “Freedom National, Slavery Sectional,” he argued that the Constitution nowhere recognized property in man and that slavery was a purely local institution with no legitimate claim on federal protection, declaring himself “painfully convinced of the unutterable wrongs and woes of slavery” and that it could “find no place under our National Government.”^[3] When Congress passed the Kansas-Nebraska Act in 1854, repealing the Missouri Compromise and opening new territories to slavery, Sumner helped organize the opposition that coalesced into the Republican Party.

On May 19, 1856, Sumner rose in the Senate to deliver what would become the most consequential speech of his career. “The Crime Against Kansas” was a two-day assault on the pro-slavery violence convulsing the territory and the senators whom he held responsible. He described Southerners’ effort to force slavery on Kansas as “the rape of a virgin Territory” and mocked Sen. Andrew Butler of South Carolina for taking as a mistress “… the harlot, Slavery.”^[4] Two days later, Butler’s cousin, Rep. Preston Brooks, entered the Senate chamber and violently assaulted Sumner with a metal-tipped cane, leaving him with such severe neurological damage that he did not return to Congress for three years.

During the Civil War, Sumner argued from the first day of fighting that Lincoln had the authority to order emancipation under martial law. He met with the president frequently, pressing him to abandon proposals for gradual emancipation and to make the abolition of slavery the war’s central objective. In an 1864 letter to Lincoln, he wrote that “freedom once given could not be reclaimed, & that the country was solemnly bound to the immediate present freedom of every slave in the rebel states.”^[5] As chairman of the Senate Foreign Relations Committee, he drew on his long friendships with British liberals Richard Cobden and John Bright to navigate the Trent Affair, persuading Lincoln to release two captured Confederate diplomats and defuse a crisis that might have brought Britain into the war on the Confederate side.^[6]

Activities during Reconstruction

The Reconstruction era (1865-77) brought Sumner to the height of his influence and the outer limits of his radicalism. He fought for full civil and voting rights for freed people, insisting that the Constitution, read alongside the Declaration of Independence, demanded for African Americans the protections afforded to any citizen. His guiding conviction, which historian Eric Foner identified as central to the entire Reconstruction project, was that the federal government was “the custodian of freedom,” a direct rebuke to the antebellum view that states alone determined the rights of their citizens.^[7]

The culminating fight of Sumner’s career was the Civil Rights Act of 1875, which he had first introduced in 1870 and described as the “crowning work” of Reconstruction.^[8] The bill forbade racial discrimination in all forms of public accommodation — transportation, hotels, theaters, schools, and cemeteries — and criminalized the exclusion of Black citizens from jury duty. It was the most ambitious civil rights legislation the country had ever seen. One critic argued that Sumner’s legislation would force “social equality with an inferior race,” to which Sumner replied that if his belief in liberty and equality as the “God-given birthright of all men” was an error, then “it is an error which I love; if this be a fault, it is a fault which I shall be slow to renounce.”^[9]

Before he died in March 1874, Sumner’s final words to Frederick Douglass and others at his bedside were, “Don’t let the bill fail.”^[10] Thousands of mourners paid their respects at the Massachusetts State House, where his coffin rested before his funeral at King’s Chapel; the procession then followed his flower-draped coffin for the five-mile walk from Beacon Hill to Mount Auburn Cemetery. Among his pallbearers were Henry Wadsworth Longfellow, Oliver Wendell Holmes, Ralph Waldo Emerson, and John Greenleaf Whittier.

Congress passed a weakened version of the Civil Rights Act the following year, though it stripped out all references to equal and integrated education to make it more palatable to white voters. In 1883, the Supreme Court struck down the act’s public accommodations provisions entirely, ruling that the 14th Amendment restrained only the states, not private individuals. It would take another century and another civil rights movement to continue what Sumner had started.

Anna Salvatore is a Content Fellow at the National Constitution Center and a graduate of Princeton University.

Notes

^[1] Charles Sumner, quoted in C.N. Douglas, comp., Forty Thousand Quotations: Prose and Poetical (New York: Halcyon House, 1917), Bartleby.com, https://www.bartleby.com/lit-hub/forty-thousand-quotations-prose-and-poetical/authors/charles-sumner/.

^[2]  Excerpt taken from Charles Sumner, The True Grandeur of Nations: An Oration Delivered before the Authorities of the City of Boston, July 4, 1845 (Boston: American Peace Society, 1845).

^[3] Charles Sumner, “Freedom National, Slavery Sectional,” speech delivered in the United States Senate, August 26, 1852, EmersonKent.com, https://www.emersonkent.com/speeches/freedom_national_slavery_sectional.htm.

^[4] Charles Sumner, “The Crime Against Kansas,” speech delivered in the United States Senate, May 19–20, 1856, in The Works of Charles Sumner, vol. 4 (Boston: Lee and Shepard, 1875).

^[5] Charles Sumner to Abraham Lincoln, November 20, 1864, Manuscript Division, Library of Congress, reproduced at United States Capitol Visitor Center, https://www.visitthecapitol.gov/artifact/letter-charles-sumner-abraham-lincoln-november-20-1864.

^[6]  “Charles Sumner,” Encyclopaedia Britannica, https://www.britannica.com/biography/Charles-Sumner.

^[7] Eric Foner, “The Strange Career of the Reconstruction Amendments,” Bloomberg, August 17, 2010, https://ericfoner.com/articles/08172010bloomberg.html.

^[8] “Civil Rights Act of 1875,” Encyclopedia.com, https://www.encyclopedia.com/social-sciences-and-law/law/law/civil-rights-act-1875.

^[9] Charles Sumner, speech on the Civil Rights Bill, United States Senate, 1866, autograph quotation reproduced at Raab Collection, https://www.raabcollection.com/american-history-autographs/sumner-famous-speech-civil-rights-bill.

^[10] “Landmark Legislation: Civil Rights Act of 1875,” United States Senate Historical Office, https://www.senate.gov/artandhistory/history/common/generic/CivilRightsAct1875.htm, citing David Donald, Charles Sumner and the Rights of Man (New York: Alfred A. Knopf, 1970).