Every Monday morning, I\u2019ll be offering an update on goings-on at the Court (\u201cOn the Docket\u201d); a longer introduction to some feature of the Court\u2019s history, current issues, or key players (\u201cThe One First \u2018Long Read\u2019\u201d); and some Court-related trivia. If you\u2019re not already a subscriber, please consider becoming one\u2014and upgrading to a paid subscription, for which we just launched new bonus features<\/a>, if your circumstances permit:<\/p>\n The Court made quite a bit of news last week, and we\u2019ll cover all of it below. But one of the rulings that received relatively fewer headlines was last Tuesday\u2019s \u201cdenial of leave to file an original bill of complaint\u201d (i.e., a refusal to exercise \u201coriginal\u201d jurisdiction) in a case with the intriguing caption Florida<\/a> v. <\/a>California<\/a>. The lawsuit arose out of accusations Florida leveled against California and Washington of violating federal safety and immigration laws by issuing CDLs to individuals who are not U.S. citizens or lawful permanent residents and who allegedly lack English proficiency. Even though the Supreme Court\u2019s jurisdiction in such cases is both \u201coriginal\u201d (meaning cases start in the Supreme Court) and \u201cexclusive\u201d (meaning no other court can hear such a case), the justices refused to take up the dispute\u2014prompting a dissent by Justice Thomas that was joined by Justice Alito.<\/p>\n I\u2019ve written before<\/a> about the debate over what is sometimes known (among the three people who follow this stuff) as the \u201cWyandotte doctrine\u201d\u2014the idea that the Supreme Court can exercise the same discretion to decline to hear original jurisdiction cases that it exercises over (almost all of) its appellate docket. Indeed, it\u2019s been 50 years<\/a> since the Supreme Court first held that it did not have to hear a lawsuit just because there are states on both sides. My own view has always been that this is a perfectly valid interpretation of Article III of the Constitution and a reasonable (if not self-evident) interpretation of the relevant statute, 28 U.S.C. \u00a7 1251(a)<\/a>. But I wanted to use this most recent case to illustrate the biggest reason why I think such discretion is a good thing\u2014because of what it would mean for the Court\u2019s docket, and how it would look, if the justices couldn\u2019t duck politically charged cases like Florida.<\/p>\n More on that below. But first, the (rest of the) news.<\/p>\n The Merits Docket<\/p>\n The Court handed down four decisions in argued cases on Thursday:<\/p>\n In Rutherford <\/a>v. <\/a>United States<\/a>, the Court addressed whether a district court may treat the non\u2011retroactive sentencing changes Congress made to 18 U.S.C. \u00a7 924(c) in the First Step Act of 2018 as an \u201cextraordinary and compelling reason\u201d under 18 U.S.C. \u00a7 3582(c)(1)(A)(i) to support the compassionate release of those sentenced prior to the statute\u2019s enactment (that is, those who would have benefitted from the new rule had it applied retroactively). Writing for the \u201cusual\u201d 6-3 majority, Justice Barrett held that the sentencing disparity created by Congress\u2019s non\u2011retroactive change cannot serve as an extraordinary and compelling reason warranting a sentence reduction. Justice Sotomayor filed a dissent, joined by Justices Kagan and Jackson, arguing that Congress gave the Sentencing Commission discretion to decide what counts as \u201cextraordinary and compelling reasons\u201d for a sentence reduction, and that the Commission\u2019s choice to count such a disparity as one was well within the discretion Congress had given to it, and should\u2019ve been left alone.<\/p>\n In Fernandez <\/a>v. <\/a>United States<\/a>, a companion case to Rutherford, Justice Barrett also held (again, writing for all six Republican appointees) that doubts about the legal validity of a conviction or sentence can never qualify as \u201cextraordinary and compelling reasons\u201d supporting compassionate release under \u00a7 3582(c)(1)(A)(i). Instead, challenges \u201cclose to the core of habeas corpus\u201d must be brought under the federal habeas statute\u2014and cannot be repackaged as compassionate\u2011release motions. Justice Sotomayor, joined by Justice Kagan, concurred in the judgment because she agreed that Fernandez\u2019s appeal should fail. But she criticized the majority for deciding more than necessary, and for grafting a \u201ccomplex habeas analysis\u201d onto the compassionate\u2011release framework. And Justice Jackson filed a solo dissent arguing that nothing in the compassionate release statute categorically bars second\u2011look relief based on previously considered facts, even if those might also be appropriate for habeas relief. The ideological split in both cases is, alas, telling\u2014including for what it says about Justices Gorsuch and Barrett (who are often portrayed as more sympathetic to criminal defendants than the case law generally suggests).<\/p>\n Speaking of Justices Gorsuch and Barrett, Pitchford <\/a>v. <\/a>Cain<\/a> involved a Mississippi capital defendant\u2019s challenge under Batson <\/a>v. <\/a>Kentucky<\/a> to the prosecution\u2019s peremptory strikes of four Black jurors, where the trial court skipped Batson\u2019s third step and gave defense counsel no opportunity to rebut the prosecutor\u2019s race\u2011neutral explanations. By a 5\u20114 vote, the Court\u2014in an opinion by Justice Kavanaugh, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson\u2014held that the Mississippi Supreme Court unreasonably applied Batson in concluding that Pitchford had waived his rebuttal rights, and granted federal post-conviction habeas relief to the death\u2011row inmate. (Once again, Batson appears to be the one criminal justice issue on which Justice Kavanaugh tends to vote with the Democratic appointees.) Justice Gorsuch wrote the dissent, joined by Justices Thomas, Alito, and Barrett. Again, what I find striking about the outcome here aren\u2019t the votes of the Chief Justice and Justice Kavanaugh in favor of a death-row inmate, but the fact that Gorsuch and Barrett both dissented in such a clear-cut Batson case.<\/p>\n Finally, Flowers Foods, Inc.<\/a> v. <\/a>Brock<\/a> concerned the scope of the Federal Arbitration Act\u2019s exemption for \u201cworkers engaged in foreign or interstate commerce,\u201d as applied to \u201clast\u2011mile\u201d distributors who deliver baked goods locally after the products have moved in interstate commerce. In an opinion by Justice Gorsuch, the Court unanimously validated the arbitration exemption for the last\u2011mile drivers, holding that they fall within \u00a7 1\u2019s transportation\u2011worker carve\u2011out and therefore cannot be compelled to arbitrate under the FAA.<\/p>\n For those scoring at home, Thursday\u2019s quartet brings the total number of rulings in argued cases this term to 32, crossing the halfway mark (we expect ~25 more before the justices rise for their summer recess at the end of this month).<\/p>\n The other big ruling on last Tuesday\u2019s Order List<\/a> was the Court\u2019s summary reversal of the Fourth Circuit in Margolin <\/a>v. <\/a>National Association of Immigration Judges<\/a>. Margolin arose from an October 2021 Executive Office for Immigration Review policy requiring immigration judges to obtain supervisory approval before giving public speeches relating to their official duties, which the National Association of Immigration Judges (NAIJ) challenged on First and Fifth Amendment grounds in the Eastern District of Virginia. But the real fight was over where the NAIJ\u2019s claims have to be litigated. Under the Civil Service Reform Act of 1978 (CSRA), most federal-employee workplace grievances must be channeled to the Merit Systems Protection Board (MSPB) and the Office of Special Counsel in the first instance (with appeals to the Federal Circuit), rather than litigated in district court. The district court dismissed on that basis, but the Fourth Circuit vacated and remanded for fact-finding on whether the CSRA scheme was still \u201cfunctioning as Congress intended\u201d given the Trump administration\u2019s removals of the Special Counsel and MSPB members and the resulting loss of a quorum.<\/p>\n In an unsigned \u201cper curiam\u201d opinion, the Court summarily reversed, holding that the Fourth Circuit violated the principle of party presentation by deciding the case on a theory neither party had raised, briefed, or argued, and reiterating that federal courts are \u201cessentially passive instruments\u201d that must \u201cdecide only the questions presented\u201d and are not \u201croving commissions . . . licensed to \u2018sally forth each day looking for wrongs to right.\u2019\u201d I\u2019ve written before<\/a> about the Court\u2019s frustratingly selective adherence to this principle, and this strikes me as another example\u2014where relying upon it mostly just allowed the Court to duck a messier question on the merits (i.e., whether the evisceration of the MSPB and its lack of a quorum should bear upon the ability of district courts to hear challenges like NAIJ\u2019s).<\/p>\n On those merits, Justice Thomas, joined by Justice Barrett, wrote separately to disagree with the Fourth Circuit. As Thomas argued, \u201c[n]either the President\u2019s view that he can remove federal executive officials, nor his having done so, change the meaning of the statute or the binding nature of this Court\u2019s interpretation of it.\u201d Perhaps failing to appreciate the tension with Justice Alito\u2019s majority opinion in Callais, Thomas wrote that courts cannot \u201crewrite the statutory scheme\u201d to anticipate possible invalidation of removal protections, because \u201c[s]tatutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress\u2019s purposes.\u201d<\/p>\n To me, the significance of Margolin isn\u2019t what Thomas wrote; it\u2019s that Justice Barrett joined it. There is a lot of ongoing litigation arising out of alleged violations of civil service protections by the Trump administration. It\u2019s hard to read Barrett\u2019s very public vote here as anything other than a signal that she thinks the lion\u2019s share of those claims have to go through the (not-exactly-functioning) MSPB process. Given the importance of her vote if and when this issue reaches the Court as part of a plenary appeal, where the issue is likely to divide the justices quite sharply, that\u2019s an ominous sign, in my view.<\/p>\n The Emergency Docket<\/p>\n There were no full Court rulings on emergency applications last week. But we expect a significant ruling as early as today\u2014with three emergency applications from Alabama asking the justices to clear the way (again) for Alabama to use a congressional district map that a three-judge district court held to violate not just the Voting Rights Act, but the Constitution itself, on the ground that it reflects intentional racial discrimination. Readers may recall that just three weeks ago (on May 11), the Court issued a \u201cGVR\u201d in these same cases<\/a>\u2014vacating the district court\u2019s injunctions and ordering the court to reconsider in light of Callais, over a sharp dissenting opinion by Justice Sotomayor that was joined by Justices Kagan and Jackson. Well, the district court did just that\u2014and issued a 102-page ruling on Tuesday<\/a> that restored its original injunctions (with some relatively direct words for the Supreme Court, along the way). <\/p>\n Now, Alabama is asking the justices for a stay under (you guessed it) Purcell<\/a>. Just to underline the sequencing here, the original district court injunctions were not issued too close to the election. The only reason why things got messed up was because of the Supreme Court\u2019s intervention on May 11\u2014intervention that, as Justice Sotomayor\u2019s dissent made clear, should itself have been foreclosed by Purcell. For the Court to turn around now and invoke Purcell to allow Alabama to use a racially gerrymandered map, when it ran right over Purcell 21 days ago to wipe away a lower-court ruling blocking that map, would, in my view, only further exacerbate the appearance that the justices are playing partisan politics in these cases. That doesn\u2019t mean that it won\u2019t happen, alas.<\/p>\n The Week Ahead<\/p>\n Besides a ruling on the Alabama applications, we expect more decisions in argued cases this Thursday at 10:00 ET. As noted above, there are 25 rulings in argued merits cases still to come (plus the Trump v. Cook emergency application, which was argued in January). Both the process of elimination and the timing are making it increasingly likely that we\u2019ll start getting some of the \u201cbig\u201d rulings of the term sooner, rather than later.<\/p>\n Miscellaneous<\/p>\n Finally, I\u2019ll be offline this morning because I\u2019ll be arguing before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit<\/a> (Clement, Southwick, & Engelhardt, JJ.). I represent the appellants in Gonzalez Maldonado v. Standard Aero (San Antonio), Inc., a tort suit arising out of a 2018 military plane crash in which the district court granted summary judgment to Standard Aero based upon the government contractor defense the Supreme Court articulated in Boyle<\/a> v. <\/a>United Technologies Corp<\/a>. We\u2019re asking the Fifth Circuit to reverse and remand for further proceedings. (For those who are curious, I\u2019ll link to the briefs and to the oral argument live-stream in the footnote at the end of this parenthetical.)<\/p>\n On August 12, 2025, Harjinder Singh, an Indian national who Florida alleges crossed the Mexican border without authorization, attempted a U-turn across the median of the Florida Turnpike, swinging his tractor-trailer across both lanes of traffic and killing all three passengers in a minivan that could not avoid the wreck. Singh held a non-domiciled commercial driver\u2019s license (CDL) issued by California and had previously been licensed in Washington, and post-crash testing by the Federal Motor Carrier Safety Administration (FMCSA) indicated he could identify only one of four highway signs. Following the crash, Florida Attorney General James Uthmeier invoked the Supreme Court\u2019s original jurisdiction and moved for leave to file a bill of complaint against California and Washington, alleging that those states\u2019 CDL practices are preempted by federal safety and immigration law and constitute a public nuisance because commercial drivers routinely cross state lines. Florida sought an injunction barring the two states from issuing CDLs to applicants who are not U.S. citizens or lawful permanent residents and who do not meet federal safety requirements.<\/p>\n As part of its regular Order List last Tuesday<\/a>, the Supreme Court denied Florida\u2019s motion for leave to file the bill of complaint, leaving California\u2019s and Washington\u2019s existing licensing practices intact. California had urged the Court to reject Florida\u2019s filing as \u201cpatently meritless,\u201d explaining that its Department of Motor Vehicles verifies legal presence through the federal SAVE database and tests for English proficiency before issuing non-domiciled CDLs. Washington characterized the suit as a \u201cpolitical stunt\u201d announced on Fox News and argued that the dispute \u201cis not about boundaries or water\u201d but \u201cabout the wisdom of state policies\u201d\u2014precisely the kind of policy disagreement the Court\u2019s original jurisdiction is not designed to resolve. <\/p>\n Only Justices Thomas and Alito publicly dissented<\/a>\u2014advancing a procedural argument both justices have been making for some time. Specifically, Thomas and Alito have long maintained that the Court lacks the discretion to decline to hear cases between two or more states\u2014on the ground that Congress, at least, has made the Court\u2019s jurisdiction in such cases \u201cexclusive.\u201d Thus, the logic goes, why would Congress have given the Court discretion to not hear a lawsuit that no other court in the country can hear?<\/p>\n Even under the Court\u2019s existing discretionary framework, Thomas also argued that Florida\u2019s complaint warranted leave to file. Stressing the \u201cseriousness and dignity\u201d of the claim and the lack of \u201cavailability of an alternative forum,\u201d Thomas reasoned that Florida\u2019s claims qualified as a \u201cmodel case\u201d because the dispute \u201cwould amount to casus belli if the States were fully sovereign,\u201d analogizing California\u2019s and Washington\u2019s (alleged) licensing practices to \u201cone nation sending dangerous people into another.\u201d (I\u2019ll come back to the \u201cfacts\u201d below.)<\/p>\n On the second factor, Thomas emphasized that \u201call appear to agree that Florida cannot sue Washington and California in any other forum,\u201d noting that even federal enforcement mechanisms permit judicial review only in narrow circumstances and may not yield the declaratory relief Florida sought. He concluded that the Court was declining \u201cto even hear Florida\u2019s claims, even though it has nowhere else to bring them.\u201d<\/p>\n Yet, in my view, the nature of this very dispute illustrates why the Court\u2019s discretionary approach continues to be sound. Florida\u2019s complaint does not present the kind of bilateral, sovereign-to-sovereign controversy that historically populated the original-jurisdiction docket\u2014disputes over boundary lines, river apportionments, or interstate compacts, where the states themselves are the only proper parties. Indeed, although the Court has never publicly explained how it decides which original cases to hear, it certainly <\/a>appears<\/a> as if the Court is granting leave to file in <\/a>every<\/a> case in which state-state litigation is the only way to resolve the underlying <\/a>legal <\/a>dispute<\/a>, without regard to the identity of the parties. In contrast, when a state policy (allegedly) causes injuries in another state, there\u2019s always at least some universe of claims that can be brought by other parties (and, thus, in other courts). And those cases are the ones the justices are regularly refusing to hear.<\/p>\n That is also, of course, this case, where Florida asked the Court to adjudicate a contested federal preemption and public-nuisance theory targeting another state\u2019s regulatory policy, on a record Florida itself conceded was \u201cunclear\u201d as to how Singh\u2019s specific license was processed, with the federal Department of Transportation already pursuing parallel enforcement and rulemaking on the same subject. As Washington warned, accepting jurisdiction would invite states to \u201cbring nuisance claims against each other\u201d over any policy disagreement\u2014\u201dlax vaccination policies or firearm restrictions,\u201d for example\u2014transforming the Supreme Court into a court of first instance for politically charged interstate quarrels. <\/p>\n I\u2019ve written before<\/a> about exactly this concern\u2014which reared its head most visibly in December 2020, when Ken Paxton tried to use the Court\u2019s original jurisdiction to get the Supreme Court to step into the middle of the litigation over the 2020 election results by suing four states directly in the Supreme Court. I think we\u2019re all better off for the Court having had the ability to say, and having said<\/a>, \u201cno.\u201d<\/p>\n It\u2019s also worth saying a few words about Thomas\u2019s statutory interpretation argument\u2014and the claim that exclusive must mean \u201cmandatory.\u201d Out of context, as a matter of pure statutory interpretation, it certainly is a reasonable position. The problem for Thomas and Alito is that the Supreme Court first expressly adopted the current (discretion-based) interpretation of the same language in 1976 (50 years ago last week, to be exact<\/a>)\u2014and Congress has left that interpretation undisturbed for a half-century. There comes a point after which Congress\u2019s silence, especially in the face of these kinds of recurring dissents, may fairly be described as a form of acquiescence in the Court\u2019s interpretation.<\/p>\n That acquiescence may reflect not just a sense that the Court is doing a relatively good job of distinguishing between state-state cases that really are ones only the justices can resolve, and those, like Florida, that are political disputes where any true legal objections can be litigated by other parties elsewhere. Indeed, by demonstrating how a state attorney general can package a domestic policy dispute as a casus belli and announce it on cable news, the dissent shows\u2014perhaps unintentionally\u2014why the Court may need the discretion to which it objects, to screen out suits whose form is interstate but whose substance is political. Mandatory jurisdiction in such cases could overwhelm the docket; it could draw the Court into fact-intensive disputes it is ill-equipped to resolve as a trial court; and\u2014as the bipartisan, federally regulated CDL framework here suggests\u2014it could displace the political and administrative channels Congress has already created to address these very issues. <\/p>\n All the while, the result for which Justices Thomas and Alito keep arguing would consume the Court\u2019s finite resources with no obvious stopping point. Congress certainly has the power, in my view, to make the Court\u2019s jurisdiction in such cases mandatory. But there are strong reasons to assume it hasn\u2019t done so until and unless it says so explicitly\u2014and Florida v. California is just the latest example of why.<\/p>\n Even within the Court\u2019s non-exclusive original jurisdiction, restraint is the norm\u2014not the exception. The debate in Florida v. California is over \u00a7 1251(a)\u2014the Court\u2019s original jurisdiction in cases in which there are states on both sides. But the Court also has \u201coriginal\u201d jurisdiction under \u00a7 1251 in three other sets of cases\u2014those set forth in \u00a7 1251(b): \u201c(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; [and] (3) All actions or proceedings by a State against the citizens of another State or against aliens.\u201d<\/p>\n The Court\u2019s jurisdiction in those cases is expressly \u201cnot exclusive,\u201d meaning lower courts also have jurisdiction over the same disputes. And even though the Court continues to hear \u00a7 1251(a) cases every so often, it has been decades since the last time the Court granted leave to file an original bill of complaint in a case in which its jurisdiction rested on \u00a7 1251(b). Specifically, the last \u00a7 1251(b) case appears to have been Alaska <\/a>v. <\/a>United States<\/a>, No. 128<\/a>\u2014a dispute over title to certain submerged lands underlying waters located in southeast Alaska that was filed on November 24, 1999, and that was eventually resolved in the federal government\u2019s favor in a 6-3 ruling in 2005<\/a>.<\/p>\n As the kids say, it\u2019s been a minute.<\/p>\n I hope that you\u2019ve enjoyed this installment of \u201cOne First.\u201d If you have feedback about today\u2019s issue, or thoughts about future topics, please feel free to email me<\/a>. And if you liked it, please help spread the word!<\/p>\n![\"\"](\"https:\/\/www.newsbeep.com\/us-fl\/wp-content\/uploads\/2026\/06\/https:\/\/substack-post-media.s3.amazonaws.com\/public\/images\/f27ac52d-130f-4b5e-81bb-412b487c700f_2500.jpeg\")
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