Three Somewhat Surprising Aspects of the End of the Supreme Court’s 2025

The win-loss outcomes of the blockbuster cases issued over the last week or so from the Supreme Court tracked the predictions of most sophisticated Court watchers: In Trump v. Slaughter, the President won the general right to fire heads of so-called “independent executive agencies;” In Trump v. Cook, he lost in his attempt to fire (for now, at least) a Federal Reserve Governor accused of—but not proven to have committed—wrongdoing; In Trump v. Barbara he lost in his attempt to upend conventional interpretations of the birthright citizenship clause of the Fourteenth Amendment; In National Republican Senatorial Committee v. Federal Election Commission the Republican party won the right to coordinate with candidates when expending election-related money; and in West Virginia v. B.P.J. and Little v. Hecox public schools were allowed to limit participation in girls’ sports to individuals designated as female at birth. But there were some things the Justices did and said that weren’t fully expected, and in the space below I briefly identify and discuss what I think are three of the most interesting and illuminating ones. Better Late than Never? I’ll start with the result in Watson v. Republican National Committee, a case involving a claim that federal statutes embodying the concept of “Election Day” preempted the power of states (in this instance, Mississippi) to count, in federal elections, ballots that are postmarked by midnight Election Day but received in hand by election officials some days later (so-called “late-arriving ballots.”) As I (and my co-author Jason Mazzone) painstakingly pointed out, here and here and here, the stronger arguments were in favor of states and against pre-emption; if, we asked, voters have made and sent in their unalterable electoral choices by midnight, and if (as everyone agrees) ballot counting can (and frequently does) continue after midnight, why would it make sense to construe federal statutes as insisting that the ballots be in hand by midnight (as opposed to en route via a mail delivery system by that time)? After all, States can certainly have drop boxes (either outside in-person polling places or in freestanding locations around the state) that remain open (with, for example, secure timer locks) for people to drop off ballots on or before 11:59 PM on Election Day (even if the ballots from these drop boxes are not collected until after midnight or days later), so why can’t Mississippi consider post offices to be such drop boxes? The only potentially meaningful difference between ballots dropped in the mail system by Election Day but arriving a few days after and ballots that have already arrived in hand by the end of Election Day is that the former might theoretically be “recalled” from the United States Postal Service (USPS) system (or other common carrier systems such as FedEx). If a voter spends the money to add USPS tracking information to a mail-in ballot, under some circumstances, USPS might, for a fee, be able to retrieve that piece of mail and return it to the sender after it is postmarked but before it is out for delivery. So in theory perhaps a voter could drop a ballot in the mail on Election Day, learn the election results in neighboring states the next day, and then seek to pull back his ballot from USPS before it arrives at the election officials’ offices. Such a pullback would not, of course, permit the voter to amend his vote to pick different candidates, but it might enable him to nullify his already-cast vote (which could affect an outcome), and that phenomenon could run afoul of Congress’s desire that voters not know the results in other races before casting their own ballots. Jason and I flagged this wrinkle, but suggested that there were no facts in the record indicating any ballots had ever been recalled in this way, and that there was no evidence that Congress intended to ban the counting of all late-arriving ballots simply because of this hypothetical possibility affecting a very small number of ballots at the very most. But we did urge states to tweak their own laws to prevent common carriers from recalling ballots postmarked shortly before or on Election Day (something that wouldn’t be technologically hard to do). With this one wrinkle ironed out, we wrote, “this should be . . . another case in which the Supreme Court [reverses] the Fifth Circuit [which had struck down the Mississippi law as preempted.]” And yet, after oral argument most observers were predicting that a majority of Justices would affirm, rather than reverse, the Fifth Circuit. The SCOTUSblog headline for the post-argument analysis by Amy Howe (a very experienced and knowledgeable Court analyst) was representative: “Justices seem ready to overturn state law allowing for late-arriving mail-in ballots.” Abbie VanSickle from the New York Times ran a story under a similar headline: “Supreme Court Appears Poised to Reject Late-Arriving Mail-In Ballots Law.” Lo and behold, this week a 5-4 majority reversed the Fifth Circuit and upheld the Mississippi law. Writing for the Court, Justice Amy Coney Barrett didn’t find any meaningful reason to think Congress intended to prevent states from counting late-arriving ballots, and that the “ballot recall” possibility was not sufficient to establish preemption. That issue, she suggested, was raised late in the litigation and has not benefited from factual determinations about how feasible recall really is. And in any event the small potential of recall might mean simply that some states need to tighten up their laws to prohibit the practice (as Jason and I had recommended last year states do), not that Congress wanted to prohibit all late-arriving ballots from ever being counted, whether or not a state had closed the recall loophole (which was the challengers’ theory). What are we to glean from this “surprising” result? For me, the big takeaway is that the Court got to the best legal answer (even though I think, as a policy matter, states—like my home state of California—should not only eliminate the recall loophole but also ensure that ballots are counted and results certified more quickly after Election Night.) But what about the fact that major news outlets mis-predicted the outcome? One possible lesson is that oral arguments can misdirect. And certainly they can: Justices sometimes float trial balloons to the oral advocates, and sometimes Justices do change their minds after argument. But another lesson (that I think is more applicable here) is that it is sometimes not so easy to fairly interpret oral argument right after the Justices finish their questioning and everyone in the audience is still basking in the heat of the moment. Having gone back to read the full argument transcript—which enabled me to see all the Justices’ words in a fuller and less emotionally charged context— I didn’t come across any question or comment by Chief Justice Roberts or Justice Barrett (the two Justices who would be needed to get to five assuming the Elena Kagan-Sonia Sotomayor-Ketanji Brown Jackson triumvirate would uphold state power here) strongly indicating either of the two was inclined to strike the law down. Indeed, Justice Barrett (who, again, wrote the majority opinion in the case) had previewed the way she ultimately treated the recall issue; the issue did not justify preempting on its face every state law permitting counting of late-arriving ballots, even if it meant that certain states would have to take actions to deal with the problem. The moral of the story? Even though oral arguments can be revealing, you need to analyze them very carefully before drawing conclusions. And you also need to analyze them independently, without being influenced by what other analysts and journalists might be rushing to predict to make deadline. (Going) Bigger is Sometimes Better: Resolving Constitutional Questions When Statutory Rulings Might Have Sufficed In a famous speech Chief Justice John Roberts reportedly said: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Justice Brandeis operationalized this instinct in a famous case, Ashwander v. Tennessee Valley Authority, when he wrote: “The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” This so-called canon of constitutional avoidance is often observed. But at the end of the recently concluded term, not so much. In three separate cases in the last two weeks, the Court majority decided a constitutional question when a statutory resolution (in the same direction) might have been feasible. In Landor v. Louisiana Department of Corrections and Public Safety, the majority opinion (by Justice Neil Gorsuch) chose to reject the idea that public prison guards could be liable in their personal capacities for violating the rights of prisoners under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) on the ground that imposing liability would exceed Congress’ powers under the Spending Clause of the Constitution. But the Court might have decided in the guards’ favor on the (narrower) ground that in RLUIPA Congress simply didn’t intend for such liability. In the Lisa Cook Federal Reserve case, the Court went out of its way to say that it is constitutionally permissible for Congress to prevent the President from removing Federal Reserve Governors at will, even though the administration in that case did not take a position on that issue and did not seek to terminate Ms. Cook at will, but instead argued (unsuccessfully, it turns out) that statutory “cause” existed. And in the Barbara birthright citizenship case, all nine Justices weighed in on the meaning of the Fourteenth Amendment even though six of them clearly could have invalidated President Trump’s Executive Order (the ultimate outcome) on the ground that the Order violated a Congressional statute. (That resolution would technically have rested on a constitutional separation of powers violation too, but perhaps one that would have required less work to explain than the Fourteenth Amendment violation.) All of this just goes to show, as Justice Gorsuch observed in Landor, that the avoidance canon is a “prudential” rule, not a “mechanical” one. And Justice Gorsuch also pointed out the rule has less applicability when “the constitutional question . . . is readily resolved by our precedents”—as I would argue was true in Barbara. To these observations I would add a third, important one: some constitutional questions need—because of their momentous political and economic consequences—to be resolved sooner rather than later, especially when the Court has been giving thought to such questions for years and would not benefit from letting the questions continue to percolate even more. So even if Barbara and Cook could have come out the same way on narrower grounds, they should have come out the way they did: by definitively answering the festering questions about constitutional birthright citizenship and Federal Reserve independence on which the masses and the markets needed clarity and predictability. The Mysteries of Mootness The third surprise (at least for me) from the end of the term was that the Court did not find one of the two transgender athlete cases—the Little v. Hecox case from Idaho– to be moot. As the Court acknowledged in a footnote deciding the pair of cases, the plaintiff in Hecox “filed a suggestion of mootness [in the Supreme Court] stating that Hecox will ‘cease playing women’s sports in any context covered by’ the Idaho law.” The Court found that this did not moot the case because Hecox’s “shift [in intentions] may not be permanent, particularly given Hecox’s prior change in position” from her original desire to compete. “Moreover,” the Hecox Court went on, “post-certiorari actions that would ‘insulate a decision from review by this Court must be viewed with a critical eye.’” It is true that a temporary cessation in conduct that can easily be resumed does not, and should not, moot a case. But, in fact, Hecox did more than change her mind and her activity. She asked that the case she filed against Idaho be dismissed with prejudice. And as the Supreme Court has itself noted in prior cases, a mere cessation of activity is not the same thing as a dismissal of a case with prejudice; the latter prevents the plaintiff from changing her mind even if she wants to. In other words, there is no possibility that the dispute between Hecox and Idaho can ever be resurrected (which was the Court’s fear) because she can no longer seek to avoid the strictures of the Idaho ban on transgender participation, because she is subject to the Idaho law and can no longer challenge it in any court in light of her sworn stipulation and a dismissal with prejudice that would come about either by the independent action of the district court or by virtue of the Court’s reliance on her representations. Moreover, dismissal of her case in the district court would, as a matter of course, result in the vacatur (or erasing) of the Ninth Circuit ruling in her favor. For this reason, Hecox’s attempt to dismiss her case with prejudice was not an effort, as the Court suggested it might be, to protect or “insulate” a favorable “decision [below] from review.” The short of it is that, under settled principles, the Hecox dispute was moot, and the Court held on to it simply because the majority of Justices seemed offended by what they surmised was strategic behavior by one of the litigants. But litigants (and lawyers) make self-interested and strategic decisions (such as whether, when, and where to sue) all the time, and if mootness is supposed to be (as the Court often says it is) more than a mere prudential doctrine but instead a hard constitutional limit on judicial power, then the Court erred in not dismissing the case. And given that the Justices could have said whatever they wanted to about transgender equality in sports in the companion case, West Virginia v. B.P.J., the decision by the majority to hold on to Hecox and muck up mootness doctrine is somewhat surprising (and disappointing).