During this 250th anniversary of the Declaration of Independence, it may be worth recalling the document’s only identified audience. Rather than single out the American public, the Declaration instead stated that “a decent respect to the opinions of mankind requires that they [the United States] should declare the causes which impel them to the separation” from Great Britain. Yet, for some time, that “decent respect” has been missing in action. From tariffs to Iran to the World Cup, concern about views from abroad has been the last thing on the mind of either the president or his enablers in Congress.The current Supreme Court is, I fear, little better. At least that is the case with regard to one formal expression of the opinions of humankind: international law. Indeed, the increasing hostility to long established international human rights protections in particular is of a piece with its antipathy to rights that had been thought to be well established by the Constitution.Consider treaties. Perhaps the most flagrant show of disrespect for the views of the international community came in a series of cases involving the right of foreigners detained in this country to have access to an official from the consulate of their home state. This right is guaranteed in the Vienna Convention of Consular Relations, a treaty to which the United States is a party and indeed took the lead in drafting. In time, the question arose whether a foreigner could waive the opportunity to argue that a state failed to inform them of their right to consult their home country’s consulate, much like a failure to inform a detainee of the right to an attorney under Miranda. Some states took the position that if the foreigner did not raise the issue at trial or on direct appeal, he or she could not present it in later proceedings. In its first case to consider the question, the Supreme Court held in pertinent part that the Convention permitted waiver. Yet the International Court of Justice, the multinational UN tribunal with the primary job of interpreting treaties, disagreed. If, given the opportunity, would the Supreme Court respect the expertise of the ICJ?That opportunity arose in two cases once again involving foreign individuals who had been convicted in U.S. state courts without being informed of the right to consult their home nations’ consulates. In each, the convicted individuals claimed their right to raise the issue of consular access could not be waived and argued that the court should reconsider its earlier determination in light of the ICJ’s judgements. In both cases, the Supreme Court majority stressed that the ICJ’s holdings deserved “respectful consideration.” Respectful consideration, however, did not stop the court from rejecting the ICJ position and sticking to its previous view of the treaty. Thanks to these decisions, out of 182 state parties to the treaty, the United States became, and remains, the only one to have repudiated the ICJ’s rulings.Indeed, these cases reflect a general pattern that goes back to the early years of the Rehnquist court. In one decision, for example, the court departed from an international consensus that an extradition treaty between two nations does not permit one state to evade the requirement of extradition proceedings by simply going into the territory of the other and kidnapping the desired suspect. In another, a majority adopted a unique interpretation of the 1967 Refugee Convention by allowing for turning back boats crowded with persons fleeing Haiti when they were on the high sears rather than U.S. waters. And this parochialism goes beyond human rights cases: In yet another decision, the court interpreted a bilateral investment treaty by applying the interpretative principles of domestic contract law rather than, as does the rest of the world, applying the distinctive principles used to interpret, well, treaties.The court has been even more provincial when it comes to customary international law or CIL. Fully as binding as a treaty, a customary international law rule principally arises when a near consensus of the world’s states recognize a prohibition or a duty. If so, the resulting rule will bind every government whether it had previously recognized it or not, unless a particular state had earlier consistently objected to being bound. Even without a treaty, for example, the U.S. would be under an obligation not to return – the international law term is refoule – refugees back to states where they would have a well-founded fear of persecution on the basis of race, national origin, gender, or similar bases.But don’t put your faith in CIL at the Supreme Court. In fairness, the justices are rarely called upon to apply CIL directly. But when those opportunities arise, the modern court, again, takes the road less travelled by the rest of the world. An especially consequential example arose in the 2017 case of Jesner v. Arab Bank, PLC. There the question involved whether a private corporation could be sued for facilitating a state’s violations of CIL, in this instance, through terrorism. The court answered with a categorial no. This answer not only failed to reflect an international consensus precluding corporate liability. Worse, it managed to ignore a growing international trend establishing accountability for corporations that assist states that engage in arbitrary detention, forced labor, and extrajudicial murder.The court’s American exceptionalism is even more pronounced when international law – treaty or CIL – is relevant in interpreting U.S. statutes. In the classic 1804 case Murray v. Schooner Charming Betsy v. Murray, Chief Justice John Marshall declared that “[a]n act of Congress ought never to be construed to violate the law of nations [today’s customary international law] if any other possible construction remains.” Since then the Charming Betsy cannon has provided the principal opportunity, indeed requirement, for the Supreme Court to keep the nation on the right side of international law. So far as the current court goes, however, Marshall’s injunction has mostly been honored in the breach, mainly by ignoring Charming Betsy altogether. For examples, one need go no further than some of this past term’s major cases.In Mullin v. Al Otro Lado, the court read the Immigration and Nationality Act to preclude persons not yet having “arrived in” the United States from seeking asylum under the statute. In similar fashion, the court in Mullin v. Doe decided that the federal Temporary Protected Status statute did not permit judicial review of the Trump administration’s determination that Haitians and Syrians can now be safely deported back to those countries, overturning the determination of the previous administration. Neither decision invoked the Charming Betsy canon. Rather, each holding makes it highly likely that the U.S. will return, or refoule, individuals to countries where they plausibly fear persecution. The Refugee Convention prohibits precisely this action. As does CIL. So much for “a decent respect for the opinions of mankind.” (To its credit, in Learning Resources, Inc. v. Trump the court did correctly determine that the International Emergency Economic Powers Act did not authorize the Trump “Liberation Day” tariffs. That conclusion would nonetheless have been substantially stronger had any of the opinions noted that a contrary holding would have been inconsistent with the nation’s international free trade obligations, not least under the World Trade Organization.)It was not always thus. In the past, the court could sometimes embrace international law, and even get it right, in major, high-profile cases. Most notably, a slim majority in the post-9/11 case, Hamdan v. Rumsfeld, invoked Common Article 3 of the Geneva Conventions, which provides basic rights, including the right to be tried in a regularly constituted court, “in conflicts not of an international character.” The Bush Administration advanced the idiosyncratic argument that 9/11 was an international conflict insofar as foreign nationals training abroad had attacked the United States and such persons were thus not subject to such rights. The Supreme Court pushed back, rightly holding that “not of an international character” was a settled term of art, referring to a conflict between a state actor, such as the United States, against a non-state actor, in this instance, al-Qaida.Though modern originalist justices are loathe to admit it, exactly this international orientation comports with the vision of the Constitution’s founders. One reason for the Constitution’s creation was the nation’s inability to uphold its treaty obligations under the Articles of Confederation. The new framework’s solution was to make the default position that treaties would be part of the self-executing “supreme Law of the Land.” As for CIL, President George Washington invoked it to prohibit Americans from violating the nation’s neutrality during the war between Britain and the new French Republic. And Marshall, in several landmark cases, relied upon it to rule against actions by the U.S. Navy during the quasi-war with France (for example, invalidating the seizure of a ship as exceeding the actions that Congress had authorized), or by the Madison administration in the War of 1812 (invalidating the executive’s seizure of enemy property at the outset of the war as contrary to the law of nations, which only Congress had the constitutional power to violate).To be fair, the causes for and decline in respect for international law long predates the current court. Not least is the nation’s rise from weak republic to superpower consistently engaged in conflicts, hot and cold. Abroad, that transformation promotes the idea that the international rules that apply to everyone else don’t apply to us. At home, it also tends to promote executive power at the expense of Congress, and of the courts, who earlier were not afraid to use international law as a check.But, as with much else, the decline has accelerated with the court’s current roster. In this regard, it cannot be a coincidence that a court dedicated to freeing the executive from certain domestic constraints, while also restricting statutory and constitutional rights, has followed a similar course in the international arena.

With the justices now on summer recess, let’s take a minute to reflect on the term and its impact on the Second Amendment. As a reminder, the court heard two Second Amendment challenges this time around: United States v. Hemani and Wolford v. Lopez. These cases mark the first time since the court recognized an individual right to own a firearm for self-defense in District of Columbia v. Heller that the justices have decided more than one Second Amendment case in a single term.The first Second Amendment decision we got was Hemani, decided on June 18, where the justices unanimously held that the federal government could not prohibit someone who admitted to using marijuana every other day from possessing a firearm. The government offered “habitual drunkard” laws in support of the federal regulation to demonstrate that the law was consistent with a historical tradition of firearm regulation. At the founding, the government contended, there was a practice of disarming individuals who drank so much as to fall under that category – which they asserted was analogous to drug users like Hemani. The court disagreed - with Justice Neil Gorsuch writing for the majority that such laws “targeted different kinds of people, did so for different reasons, and operated in different ways.”A week later, the justices announced their opinion in Wolford v. Lopez. In a 6-3 decision, the court struck down a Hawaii law that made it illegal for anyone to bring their firearm onto private property open to the public without explicit consent from the property owner. Justice Samuel Alito, writing for the majority, held that the Hawaii law implicated the “plain text of the Second Amendment,” and that, because the government failed to produce “relevantly similar” historical analogues in support of the law, it too violated that amendment.As a quick reminder, in 2022 the Supreme Court rejected the means-end scrutiny mode of analysis that many of the lower courts had adopted in the years following Heller, in which they weighed the government’s justification in passing the law against the right being burdened. In New York State Rifle & Pistol Association v. Bruen, the justices recognized a different framework for analyzing Second Amendment challenges, and this is what was applied in both Hemani and Lopez. Under this framework, courts must first ask whether “the Second Amendment’s plain text covers an individual’s conduct.” If the answer is no, the analysis comes to an end. If the answer is yes, the conduct is “presumptively protected” by the Constitution. The government must then show that the regulation “is consistent with the Nation’s historical tradition of firearm regulation.” If the government can satisfy this burden, then the regulation is enforceable consistent with the Second Amendment. If not, it will be struck down as unconstitutional.But let’s unpack that.Bruen’s step one “plain text” inquiryUp until recently, we have not had much guidance on what the “plain text” analysis at step one of Bruen’s history and tradition framework was supposed to look like. In Wolford, Alito clarified that this inquiry consists of three questions: (1) “does the law apply to ‘the people’—which is to say, ‘all members of the political community’?”; (2) “does it concern any form of “Arms,” which he defined as “any weapon customarily used for offensive or defensive purposes’?”; and (3) “does the law place any restrictions” on the keeping or bearing of arms?Taking these in questions order, the first reveals next to nothing about who counts as part of “the people” – we already knew from Heller that this group was limited to “members of the political community” (for what that means, see my earlier piece). Alito’s description of “Arms” (which I have written about here) also went unchallenged.The final part of the inquiry was a bit more interesting. According to the opinion, if the law places any restriction on the keeping or bearing of arms then this threshold has been met. While that may seem underwhelming, lower courts have not conducted the plain text analysis quite that way. For example, the U.S. Court of Appeals for the 4th Circuit rejected a challenge to Maryland’s handgun qualification license requirement because plaintiffs had not demonstrated that the law “infringe[d]” or “effectively denie[d]” the right to keep and bear arms. Relatedly, the U.S. Court of Appeals for the 9th Circuit held that “laws imposing conditions and qualifications on the sale and purchase of arms do not implicate the plain text of the Second Amendment” because Heller carved out this category of regulations as “presumptively lawful.” Alito’s language would seem to throw these rulings into doubt.This reading is further enforced by Justice Amy Coney Barrett’s concurrence, in which she characterized – in a footnote – the disagreement between the majority and dissent as being over “whether courts can smuggle additional limits, drawn from our regulatory tradition, into the plain text stage of the inquiry.” According to Barrett, “[t]he answer is and always has been no.”Bruen’s step two historical analysisAs noted above, if step one is satisfied (that is, the conduct at issue is covered by the Second Amendment), the court moves on to step two, in which the government must show that the regulation being challenged “is consistent with the Nation’s historical tradition of firearm regulation.”At the outset, one question that the court again declined to answer in both Hemani and Wolford is whether the “historical tradition” being considered dates back to 1791 or 1868. The Bill of Rights, including the Second Amendment, was ratified in 1791, but – at that time – this only applied to the federal government. As held by the court in McDonald v. City of Chicago, with the passage of the due process clause of the 14th Amendment in 1868 the Second Amendment came to apply to the states. So which date should count? For now, we don’t know.Moving on to the substance of the analysis, Wolford divides the second step into three more inquiries. First, Alito explains that when considering whether there exists a historical tradition, one may look to see if there is a “historical analogue” to today’s regulation. When assessing a historical analogue, courts should initially consider “the number of jurisdictions in which [the analogues] were adopted.” In Bruen and again in Wolford, the majority cautioned that “[a]n outlier legal rule adopted in a few locales” is not going to be sufficient to demonstrate a historical tradition (though just how many such rules are necessary to have existed the court left unresolved).The second and seemingly interrelated inquiry that Alito lays out is “the extent to which [the analogues] were well-accepted.” Courts may find that there was express acceptance through studying judicial decisions construing such laws, or such acceptance may be implied – as when a firearm regulation was “open, widespread, and unchallenged.”The final question that a court must answer is whether the analogues are “‘relevantly similar’ to the modern law.” That is, a court needs to assess “how” and “why” the historical analogue restricted the Second Amendment right and ensure that these two reference points are “sufficiently similar.” In Wolford, the court cautions that this will not be a “mechanical” determination but rather requires “an exercise of judgment.”In Hemani, for example, the court found that the government’s analogues had not met this standard because habitual drunkard laws “targeted different kinds of people [than casual marijuana users], did so for different purposes, and operated in different ways.” So, we know that a historical analogue cannot differ on all three of these points. But the justices declined to decide whether any one of these differences on their own “would prove fatal to the government’s cause.”Wolford provides one more piece of information about how to conduct this historical analysis. In defense of its law, Hawaii cited an 1865 Louisiana statute which made it generally illegal for anyone to carry a firearm onto another person’s property without their express consent. The majority concluded that this law “carries no weight” because it was “neither widespread nor widely accepted.” But the opinion did not stop there. The law, Alito explained, was enacted as part of the “so-called Black Codes” that confederate states used “to perpetuate the subjugation of blacks” between the end of the Civil War and the beginning of the Reconstruction era, used as “a tool for disarming” this population of people. Because “the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment” were well aware of the importance of the right to keep and bear arms for black individuals at this time, “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”Yet the majority does not explain how to evaluate the pedigree of similar history going forward. As Justice Ketanji Brown Jackson asked in her dissent, “how [is] one is to go about accurately identifying such a verboten law”? That question is not just academic: it may well emerge again, perhaps in cases involving felon disarmament where lower courts have routinely relied on historical laws disarming categories of people such as Native Americans and religious minorities as a basis for upholding the modern felon-in-possession prohibitions.The 2026-27 term and beyondAlthough Hemani and Wolford provide more information about how to apply Bruen’s history-and-tradition analysis, many questions remain, among them whom the right protects and how far it extends. While we do not know exactly what the next term holds at this point, we do know that we will have more answers to at least one of these questions: what counts as an “Arm” for the purpose of the Second Amendment. On June 30, the justices issued an orders list from their “clean-up conference” which included a cert grant in Viramontes v. Cook County and Grant v. Higgins (these two cases have been consolidated). In those cases, the justices will consider whether the Second Amendment protects the right to possess semiautomatic rifles such as AR-15s.In the same orders list, the justices declined to hear a number of cases about the constitutionality of restrictions on the ability of individuals under the age of 21 to acquire or possess firearms. Justice Clarence Thomas indicated he would have granted review in West Virginia Citizens Defense League v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, which involves a challenge to the federal law that bans the commercial sale of handguns to such persons. Thomas may not have gotten his way – for now – but it is only a matter of time before the court addresses some of the many other lingering questions in this rather fraught area.

Plus, is Justice Kavanaugh the great concurrer of the Roberts court?

As a resource for court observers interested in criminal law, this column completes (together with my prior column) my listing of criminal law and related cases decided by the court this term. Below you will find a list of 19 merits cases the court decided this term that I think are broadly related to criminal law topics – as well as six more criminal law summary dispositions. A full listing of all the criminal law merits cases decided in a term allows readers to look at the entire forest in addition to single trees.The 16 pure criminal law cases discussed in my last column, plus the 19 additional “related” cases listed below and the six summary dispositions totals 41 criminal law and related decisions issued by the court this term. This constitutes a whopping 60% of the 68 merits cases that the court lists as “Opinions of the Court - 2025” on its website. Don’t let anyone tell you that the Supreme Court does not do much criminal law work. They do.Sidenote on the structure of the Supreme Court’s websiteThis is worth briefly examining here, not just for readers trying to find their way around that website, but also to note the confusion between the undifferentiated mass of justices’ writings that the media and public see, versus what the court thinks are clear divisions between their opinions.The Supreme Court’s website is complex, and impossible to figure out unless you spend minutes (hours?) clicking around on it. Seven main topics are listed across the top. These headings yield a total of 44 different subheadings once you click on them. Spend a summer afternoon on this, and you’ll soon be sleeping among the daisies.For official writings, the court’s website divides the justices’ opinions into two subheadings. One is captioned “Opinions of the Court,” consisting primarily of the justices’ precedential legal views in cases after full briefing and oral argument. Here the court also lists “summary” dispositions, that is, decisions issued without full briefing or oral argument based on the petition for certiorari (review) papers alone. And then there is a separate subcategory, titled “Opinions Relating to Orders.” The latter category addresses what has become known as the “interim” or “emergency” or “shadow” docket – my strong-but-unpopular view is that we should just use the court’s own term and call this the “orders” docket. This part of the court’s website includes opinions issued upon the denial or granting of stays (emergency or otherwise) – but it also includes opinions that a justice or justices might write to dissent from the denial of a petition for certiorari.This two-part division of justices’ writings does not perfectly match the way court observers tend to think about what the court does. What a justice says about a legal issue is important, no matter where the court decides to publish it. And when hard copies of the court’s work are finally published in thick volumes, these are labeled the U.S. Reports. The justices used to say that the “opinions” decisions are forceful legal precedents, while those on the “orders” docket are not. But that division appears to have broken down. And any interested court observer needs to examine both places to have a full understanding of what the justices are officially saying.Now that that’s clear (smile), here are some further thoughts, and additional lists, summarizing this term’s criminal law writings published as “Opinions of the Court.”Further thoughts about the 16 pure criminal law decisionsIn my July 15 column, I wrote about the 16 pure criminal law cases decided by the court this term after full briefing and oral argument. That’s almost 30% of the court’s merits docket. Eleven of the 16 were decided in favor of a criminal defendant or the defense’s view. And this takes work: the 16 pure criminal law cases alone totaled 624 pages of writing (I added them up). My prior column offered some immediate thoughts about these “pure” cases; below are a few additional ones. (I recently spoke about the court’s criminal work on The Dispatch’s “Advisory Opinions” podcast.)Only three of the 16 pure cases were decided 5-4, while seven were decided by 9-0 votes (albeit some with concurring opinions). There were also three 8-1 results. Whether due to careful case selection or other factors, the fact is that the justices found more agreement than disagreement in the criminal law cases they decided to hear.The three 5-4 decisions were all pro-defense results. (Another two cases were pro-defense by 6-3 votes.) Together with the three expected “liberal” justices, Justice Brett Kavanaugh provided a dispositive vote in all three pro-defense 5-4 decisions – he was joined by the chief justice in two and Justice Amy Coney Barrett in the third. Kavanaugh was also in the majority of all the 6-3 decisions. It’s a fine demonstration of what I have called “the wild card court” this term.Two of the pro-defense cases were decided for the criminal defendant on Second Amendment grounds; and the three “liberal” justices separated themselves in both (dissenting in Wolford v. Lopez, and concurring separately in United States v. Hemani). When former federal prosecutor Samuel Alito is ruling to strike down a criminal statute while former public defender Ketanji Brown Jackson is dissenting, a pro-defense decision does not comfortably fit the characterization of “liberal.” The “politics” of gun control (and perhaps other issues) suggests that criminal law observers need to develop a more nuanced way of measuring results.Chief Justice John Roberts was in the majority of all 16 of the court’s pure criminal law cases. That is remarkable: Roberts is the only justice we can say this about. And the chief being in the majority is a powerful position: he thereby retains the power to assign the writing of each majority opinion to any of his eight colleagues. Kagan was given the authorship for five of the 16 cases; no other justice wrote more than two (Justice Clarence Thomas wrote none).The factors that go into majority opinion assignments are complex and can be “strategic.” But another factor is often unmentioned yet has become the norm under Roberts: equally distributing all the full merits decisions (57 this term) among all nine justices. (For example, this term each justice authored either six or seven majority opinions.) This requires some experienced predictive prescience, looking at the entire term months in advance. If the “liberal” justices will not be in the majority in closely divided cases at the end of the term, the chief needs to “load them up” with majority opinions early. Regardless of how this all plays out, with five majority decisions assigned to her, Kagan has become (perhaps surprisingly, as she has little criminal litigation experience) the “go-to” author for criminal law decisions.19 cases related to, even though not “pure,” criminal lawBeyond the 16 pure criminal law cases (or 17, see my prior column), I consider another 19 opinions of the court this term to be related to criminal law, such that criminal law litigators or aficionados would want to read them.Indeed, the 2025-26 term might be called the “immigration term.” In addition to Trump v. Barbara, the birthright citizenship decision (extensively covered elsewhere), the court decided four additional cases important for immigration law. Competent criminal lawyers, defense or prosecution, should be aware of immigration status and consequences in any criminal case. So I list the immigration cases first:Urias-Orellana v. Bondi (March 4, Jackson, 9-0): A “substantial evidence” standard of proof applies to the Board of Immigration Appeals’ determinations about fear of persecution claims under the immigration statutes.Blanche v. Lau (June 23, Thomas, 6-3): An officer at the border need not have clear and convincing evidence to deem a lawful permanent resident (green card holder) inadmissible if such evidence is presented at a later removal hearing. (Based on footnote two, a possible lower standard of proof was left undecided.)Mullin v. Al Otro Lado (June 25, Alito, 6-3): “An alien ‘arrives in the United States’ [under the statute] only when he crosses the border,” and persons arriving “at” the border without crossing it are not entitled to apply for asylum.Mullin v. Doe (June 25, Alito, 6-3): A statutory challenge to the elimination of Temporary Protected Status for Hatians and Syrians is barred from judicial review by the statute; and the constitutional challenge based on race discrimination is “unlikely to succeed.” (The procedural status here was certiorari before judgment on a government motion for stay.)Fourteen additional civil cases related to criminal law. Reasonable minds might disagree about whether the following cases should be considered related to criminal law. But given this is a resource for criminal law practitioners and scholars, I err on the side of broad inclusion. Similar cases are grouped together (for example, two cases on aiding and abetting, two cases that address confiscated property in Cuba, and so on). Phrases that help suggest a link to criminal law issues or interests are underlined.GEO Group, Inc. v. Menocal (Feb. 25, Kagan, 9 (7+2) to 0): A pretrial order denying dismissal based on a claim of defense contractor immunity is not immediately appealable, because it is not a final order.Cox Communications v. Sony Music (March 25, Thomas, 9 (7+2) to 0): Aiding and abetting copyright infringement is not sufficiently proved absent proof that a service provider either induced, or tailored service to, the infringement.Hikma Pharmaceuticals v. Amarin Pharma(June 4, Jackson, 9-0): A patent infringement claim for “active inducement” requires more than just a “plausible reading” of a generic drug label.Cisco Systems v. Doe (June 23, Barrett, 6-3, dissents in part): Aiding and abetting claims (for alleged religious persecution in China) are not authorized under the Alien Tort Statute or the Torture Victim Protection Act.Hencely v. Fluor Corp. (April 22, Thomas, 6-3; unusual voting coalitions, Alito dissenting with Roberts and Kavanaugh): State law claims against a government contractor (for allegedly hiring a suicide bomber employee) are not preempted when the contractor allegedly acted outside government authority.First Choice Women’s Resource Centers v. Davenport (April 29, Gorsuch, 9-0): A religious nonprofit has standing to challenge a state attorney general subpoena that demands identification of donors.Havana Docks Corp. v. Royal Caribbean Cruises (May 21, Thomas, 8-1, unusual Kagan solo dissent): Cruise lines’ use of docks built by Havana and later confiscated by the Cuban government is sufficient to support liability for “trafficking in confiscated property” under a 1996 federal statute.Exxon Mobil v. Corporacion Simex, S.A. (Cuba) (June 23, Kavanaugh, 6-3): Any sovereign immunity for Cuban agencies and instrumentalities from confiscated property liability was abrogated by a 1996 statute.Sripetch v. SEC (June 4, Gorsuch, 9-0): Securities law: a showing of pecuniary loss is not required for a disgorgement award.Federal Communications Commission v. AT&T(June 4, Roberts, 8-1): The Federal Communications Commission may issue a forfeiture order without a jury trial because the order is not a final resolution or conclusive.FS Credit Opportunities v. Saba Capital (June 11, Barrett, 6-3): Investment Company Act (similar to securities law) – “The ICA does not impliedly empower private parties to sue for rescission of contracts that allegedly violate the Act.”Landor v. Louisiana Dept. of Corrections (June 23, Gorsuch, 6-3): A damages lawsuit against individual prison officers for violating a prisoner’s religious rights is not authorized if the officers have not knowingly and voluntarily consented to possible liability, under a spending clause statute.Pung v. Isabella County (June 23, Alito, 9 (7+2) to 0): “Just compensation” for a fairly conducted tax sale of property for unpaid taxes is the auction price, not a higher hypothetical fair market value.West Virginia v. B.P.J. (June 30, Kavanaugh, 6-3, dissents in part): A state may permissibly maintain female sports teams limited to biological females under Title IX and the 14th Amendment. (I wrote last summer about potential criminal laws relating to transgender persons).The six summary criminal law dispositions this termFor some cases that come to the court on petitions for review, the result seems so clear (if not “easy”) to a majority of the justices that they are decided summarily, that is, without asking for full briefing or oral argument. Instead, the court will issue a “per curiam” decision, based simply on the petition for certiorari filings alone. (“Per curiam” means “for the court” without identifying an author.) The justices most often use this tool to reverse decisions of lower courts that have granted defense relief in criminal habeas corpus or denied qualified immunity for law enforcement officers. This term was no exception. The first and last case below were pro-defense; the other four were not.Pitts v. Mississippi (Nov. 24, 9-0): The Sixth Amendment’s confrontation clause requires case-specific findings before screening of a child abuse victim’s trial testimony (but the error might be held “harmless” on remand).Clark v. Sweeney (Nov. 24, 9-0): The U.S. Court of Appeals for the 4th Circuit violated the “party presentation principle” when it granted habeas relief in a second-degree murder case. (I criticized this decision in a December 2025 column.)Klein v. Martin (Jan. 26, 8-1, Jackson dissenting without opinion): The 4th Circuit erred in ruling that “no fair-minded jurist” could find that an undisclosed forensic report was immaterial in a Brady analysis under the federal habeas statute.Zorn v. Linton (March 23, 6-3, Sotomayor dissenting with Kagan and Jackson): An officer was entitled to qualified immunity because no precedent clearly established that using a wristlock on a nonviolent protestor after a verbal warning would violate the Constitution. Dissent: The lower court’s denial of summary judgment for the officer was “not so clearly erroneous as to warrant the ‘extraordinary remedy of a summary reversal.’”District of Columbia v. R.W. (April 20, Sotomayor dissenting without opinion; Jackson dissenting): An officer had reasonable suspicion to stop a juvenile based on the totality of the circumstances. Dissent: The appellate court applied the correct methodology; the court’s “factbound” assessment “does not merit the use of our summary discretion.”Whitton v. Dixon (June 1, 7-2, Thomas dissenting with Alito): Reversed a Florida affirmance of a murder (death penalty) verdict because the materiality of false and harmful witness testimony at trial could not be cured by reference to DNA evidence that did not exist at the time of trial but was discovered a decade later. Dissent: “[W]e should not have exercised our summary powers ... here” because the evidence was overwhelming without the DNA evidence and Whitton has not exhausted his claim. Thus, any error was a technicality that will not affect the outcome of the case.

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not necessarily reflect the opinions of SCOTUSblog or its staff.A case like Anderson v. Intel Corporation Investment Policy Committee will never lead the evening news. There is no constitutional clash, no culture-war flashpoint – just a question about what a lawsuit must allege to survive its first test in court. But the stakes could hardly be more far-reaching. More than 100 million Americans save for retirement through employer-sponsored plans – 401(k)s and their kin – governed by the Employee Retirement Income Security Act, or ERISA. That law does not command employers to offer plans; it cajoles them into doing so. And Congress built the statute so that the burdens of employer sponsorship – litigation expenses above all – would not “unduly discourage employers from offering” ERISA plans in the first place.Whether that design endures is what the justices will decide next term.***In Anderson, the question presented sounds technical: when a plaintiff claims that fiduciaries imprudently selected an underperforming investment, must the complaint identify a “meaningful benchmark” – a genuinely comparable fund against which the challenged one can be measured?The facts show why the benchmark is decisive. After the 2008 crash erased over half the value of some stock-heavy retirement funds, Intel’s retirement-plan fiduciaries rebuilt key funds in its plans around a different goal: limiting losses rather than maximizing returns. They added substantial holdings in hedge funds, commodities, and private equity – assets that tend not to rise and fall with the stock market. Participants were told the funds prioritized reducing volatility and guarding against large losses, and that the price of that protection was that the funds would not compare favorably with stock-heavy funds during bull markets.Then came one of the longest bull markets in history. The diversified fund beat its disclosed target of a five percent annual return above inflation. The plaintiffs sued anyway, alleging that the funds trailed riskier stock-heavy funds and market indexes like the S&P 500 during those years.The U.S. Court of Appeals for the 9th Circuit disagreed. When a claim rests on comparative underperformance, it held, the plaintiff must supply “a sound basis for comparison—a meaningful benchmark.” Funds with “different aims, different risks, and different potential rewards” cannot fill that role. The U.S. Courts of Appeals for the 7th, 8th, and 10th Circuits had already said the same. Only the U.S. Court of Appeals for the 6th Circuit has gone the other way, saying no such benchmark is needed.Several background principles frame the dispute. ERISA’s “prudent man” standard, codified at 29 U.S.C. § 1104(a)(1)(B), measures a fiduciary’s care against that of “a prudent man acting in a like capacity and familiar with such matters” conducting an “enterprise of a like character and with like aims.” The Supreme Court has spoken to how that standard operates at the pleading stage: 2012’s Fifth Third Bancorp v. Dudenhoeffer called the motion to dismiss an “important mechanism for weeding out meritless claims” – the tool for dividing “the plausible sheep from the meritless goats” – while 2019’s Hughes v. Northwestern University instructed courts to give “due regard to the range of reasonable judgments a fiduciary may make” through “context-specific” scrutiny.The question in Anderson is what those commitments require when a complaint’s theory of imprudence is that the defendant’s fund made less money than some other fund. As noted, here each fund came with disclosed comparators built in. The performance was measured against benchmarks the fiduciaries selected and disclosed to participants, including a customized composite of the underlying benchmarks for each asset class, and respondents also identified the MSCI World Index as a relevant benchmark. ERISA’s disclosure regulation also independently requires fiduciaries to give participants a comparable broad-based market index for every fund.***The petitioners, a putative class of Intel plan participants, contend that the 9th Circuit’s meaningful-benchmark requirement is an atextual heightened pleading standard. Nothing in ERISA’s prudence provision mentions benchmarks, meaningful or otherwise; the statute asks only whether the fiduciary’s own conduct was prudent, not whether the plaintiff can first locate a better-performing twin. Under the pleading threshold carved out in the landmark cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal they argue, courts must assess a complaint’s allegations holistically, and sustained underperformance – considered alongside allegations about fees, strategy, and asset choices – can “nudge[]” a claim “across the line from conceivable to plausible” without any threshold comparator showing. The requirement is also overinclusive, they warn: a fiduciary whose strategy is truly an outlier may have no analogous fund to point to, leaving the most aberrant conduct the least reviewable. And by demanding a benchmark before discovery, the rule forces plaintiffs to prove comparability at the moment they know least – effectively resolving the merits at the pleading stage.The Intel fiduciaries respond that the requirement is not an addition to the court’s pleading case law but an application of it. The statute itself speaks in comparative terms – “like capacity,” “like character,” “like aims” – and the petitioners themselves told the district court that it “commands comparisons to similarly situated fiduciaries.” A bare performance gap between dissimilar funds, the respondents argue, supports no inference of a flawed process, because it carries an obvious alternative explanation: funds with different objectives and risk tolerances are supposed to perform differently. A risk-mitigating portfolio trailing an equity-heavy one in a bull market is the strategy working, not failing – especially where, as here, the plans disclosed in advance that the funds “would not compare favorably with equity-heavy funds during bull markets.” Nor, according to Intel, is the standard a straitjacket. The 9th Circuit disclaimed any demand for identical allocations; a comparator need only share the challenged fund’s basic aims. Indeed, the requirement governs only claims predicated on underperformance: a plaintiff who attacks the process directly – fiduciaries who acted improperly by never meeting, never reviewing data, never monitoring things – or whose circumstantial allegations independently suggest a flawed process needs no comparator at all. And courts routinely find the standard satisfied in practice, crediting comparators with shared objectives or the defendant's own disclosed benchmarks (benchmarks the Anderson plaintiffs conspicuously declined to invoke).Both sides, in short, claim the mantle of precedent: the petitioners as defenders of holistic, context-specific review, the respondents as enforcers of the plausibility line. Both also claim ERISA’s purposes: the petitioners emphasize participant protection and access to court; the respondents emphasize the statute’s tolerance for diverse strategies and Congress’ concern that litigation expenses not discourage employers from offering plans at all.***In my view, the respondents have the better of the argument for a reason that sounds in ERISA’s own design. The statute affirmatively commands diversification and expressly contemplates that fiduciaries may pursue different aims with different risk tolerances. Variation in outcomes is therefore not evidence of a breach; it is the guaranteed byproduct of the conduct Congress prescribed. A pleading regime in which any performance gap against any fund states a claim would convert that statutory design into perpetual litigation exposure, with settlement pressure – not merits adjudication – resolving most cases. The meaningful-benchmark requirement answers that problem without closing the courthouse door. Plaintiffs with genuine process allegations need no comparator, and plaintiffs who choose a comparative theory must simply make a comparison capable of supporting their inference. That is not a heightened pleading standard. It is what plausibility means when the theory is “my fund made less money than that one.”Which returns us to the stakes. Dudenhoeffer promised pleading-stage review with teeth precisely because ERISA class actions are uniquely expensive to defend and uniquely prone to in terrorem settlement. Allowing a complaint that fails to identify any comparator to advance to summary judgment or trial will make the litigation cost of ERISA plans too high to bear for many employers. That increased exposure will deter new sponsors and prompt existing ones to reconsider offering plans. Many employers – quite rationally – will walk away from offering plans. Who can blame them? Employees, in turn, would lose meaningful benefits.Anderson will thus reveal whether Dudenhoeffer’s promise still holds. The court should hold that it does, and affirm. The retirement security of more than 100 million Americans may well depend on it.