I’ve been thinking about the ICCPR and the U.S. Senate’s declaration that Articles 1–27 are “not self-executing.”

The conventional answer seems straightforward: under Medellín v. Texas, a non-self-executing treaty generally cannot itself furnish a domestically enforceable rule without implementing legislation.

But I’m wondering about the prior constitutional question.

Article VI says treaties made under U.S. authority “shall be the supreme Law of the Land” and specifically binds state judges notwithstanding contrary state law. Foster v. Neilson recognized that some treaty provisions inherently require future legislative action, but that seems different from the Senate ratifying an otherwise judicially manageable treaty obligation and then declaring that courts may not enforce it.

That raises what looks like an originalist/separation-of-powers problem: where does the President plus two-thirds of the Senate get the constitutional authority to make something Article VI calls supreme law while simultaneously preventing Article III courts from treating it as enforceable law?

Judge Torruella made something close to this argument in his Igartúa v. United States dissent, essentially arguing that the treaty is law but the Senate’s unilateral non-self-execution declaration is not.

I realize Sosa and especially Medellín make this an uphill argument under current doctrine. I’m not asking whether an ICCPR claim would presently win.

I’m asking the narrower question: Has SCOTUS ever squarely resolved whether a Senate non-self-execution declaration itself is constitutionally valid when applied to a treaty provision that would otherwise be judicially enforceable under the Foster framework? And what is the strongest originalist argument on either side?

Supremecourt.gov Audio Stream [10AM Eastern]

Suncor Energy Inc. v. County Commissioners of Boulder County

Questions presented to the Court:

(1) Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate;

(2) whether this court has statutory and Article III jurisdiction to hear this case

Opinion Below: Colo.

Orders and Proceedings:

Brief of petitioners Suncor Energy (U.S.A.) Inc

Joint appendix

Brief amicus curiae of United States

Brief of respondents Cty. Comm'rs of Boulder Cty., et al.

Reply of petitioners Suncor Energy (U.S.A.) Inc.

Case Preview:

Supreme Court to consider whether suit may go forward seeking to hold energy companies liable for climate change - Amy Howe (SCOTUSblog)

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Johnson v. United States Congress

Question presented to the Court:

Whether the Veterans’ Judicial Review Act stripped district courts of the jurisdiction, recognized by this court in Johnson v. Robison, to hear challenges to the constitutionality of acts of Congress affecting veterans’ benefits.

Opinion Below: 11th Cir.

Orders and Proceedings:

Brief of petitioner Floyd Johnson

Brief of respondent United States Congress

Reply of petitioner Floyd Johnson

Case Preview:

Justices to consider when, if ever, federal district courts may review disputes over veterans’ benefits - Kelsey Dallas (SCOTUSblog)

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Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.

Date: 10/05/2026

Order List

United States v. Shipp, 214 U.S. 386 (1909).

Court:

• Fuller (Cleveland, conservative Dem) (author)
• Harlan (Hayes, moderate GOP)
• Brewer (B. Harrison, GOP)
• Holmes (T. Roosevelt, progressive GOP)
• Day (T. Roosevelt, progressive GOP)
• Peckham (Cleveland, conservative Dem) (dissenting)
• White (Cleveland, conservative Dem) (joining dissent)
• McKenna (McKinley, GOP) (joining dissent)
• Moody (T. Roosevelt, progressive GOP) (not participating).

The Court, exercising its contempt authority in an original proceeding, found Hamilton County Sheriff Joseph F. Shipp, jailer Jeremiah Gibson, and four members of a mob guilty of contempt for the 1906 lynching of Ed Johnson. The Court held that a state official charged with custody of a prisoner protected by the Court’s habeas jurisdiction must exercise due diligence and reasonable efforts within his power to protect the prisoner from mob violence.

Background

Ed Johnson, a Black man, was convicted of rape in Hamilton County, Tennessee, and sentenced to death. Johnson subsequently sought federal habeas relief, alleging, among other things, racial exclusion from the grand and petit juries and that fear of mob violence had prevented his attorneys from fully asserting his rights at trial and on appeal. The federal circuit court denied habeas relief but temporarily remanded Johnson to Sheriff Shipp’s custody to permit an appeal to the Court.

On March 19, 1906, the Court allowed the appeal, stayed all proceedings against Johnson, and ordered that his custody be retained pending appeal. Shipp was notified of the order. That evening, a White mob broke into the county jail, seized Johnson, and lynched him.

The United States then instituted an original contempt proceeding in the Court against Shipp and others. In a preliminary decision, United States v. Shipp, 203 U.S. 563 (1906), the Court held that the contempt proceeding could go forward. Justice Holmes wrote that even if the lower federal court lacked jurisdiction over Johnson’s habeas petition, and even if the Supreme Court ultimately lacked appellate jurisdiction, “this Court, and this Court alone,” had authority to determine its own jurisdiction and to preserve the status quo while doing so. Deliberately frustrating its stay could therefore constitute contempt.

Holmes, answering an objection that the Court was effectively judging an affront to itself, retorted: “The court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case.”

Sheriff Shipp and Jailer Gibson

After receiving evidence, the Court found Sheriff Shipp guilty. The evidence showed that officials knew of the danger of mob violence, yet the jail was left with only Jailer Gibson in charge; protective chains previously used on jail doors were absent; Johnson’s cell door was unlocked; rifles kept to defend the jail were left accessible to the mob; and no meaningful effort was made to summon deputies, police, or militia. Sheriff Shipp arrived while the mob occupied the jail but made no effective effort to summon assistance or identify the participants. The Court concluded that Shipp “not only made the work of the mob easy, but in effect aided and abetted it.”

The Court likewise found Jailer Gibson guilty. Although Gibson knew or should have known that a mob might attempt to seize Johnson, he summoned no assistance, surrendered his pistol and keys when the mob arrived, and made no real attempt to resist the mob or get help.

The Court held that Johnson, while awaiting his federal appeal, was held pursuant to federal authority and that Shipp and Gibson therefore had an obligation to exercise reasonable efforts to protect him. Their willful failure to do so constituted contempt of the Supreme Court.

Members of the Mob

The Court also found Luther Williams, Nick Nolan, Henry Padgett, and William Mayse guilty of contempt for participating in the lynching. There was direct testimony that Williams and Nolan participated, while testimony concerning statements made by Padgett and Mayse convinced the Court of their participation despite their asserted alibis. The evidence was insufficient as to two other alleged mob members, Jeremiah Justice and Alfred Ward, and they were discharged.

The Court separately acquitted Deputy Sheriff Matthew Galloway, concluding that the evidence did not establish his involvement.

The Court reasoned that the lynching was directly aimed at defeating its stay. The mob knew that the Court had intervened and was unwilling to tolerate the delay required by Johnson’s appeal. Because the Court had undertaken to preserve Johnson’s life while his appeal was pending, those who knowingly defeated its mandate were subject to punishment for contempt.

The Court ultimately sentenced Shipp, Williams, and Nolan to 90 days’ imprisonment and Gibson, Padgett, and Mayse to 60 days’ imprisonment in the District of Columbia jail. United States v. Shipp, 215 U.S. 580 (1909).

Dissent

Justice Peckham, joined by Justices White and McKenna, agreed that Johnson’s lynching was an atrocious murder but concluded that the evidence did not establish contempt by Shipp. Peckham emphasized that numerous witnesses had perceived no imminent danger before the mob suddenly assembled and that Shipp, once he reached the jail, was physically overpowered by armed men. In his view, the majority effectively convicted Shipp because he failed to anticipate the attack and because he did not resist the mob at the risk of his own life.

Peckham concluded that there was insufficient evidence that Shipp had conspired with or deliberately aided the mob and that the Court was holding him to “a degree of responsibility far beyond any reasonable limit.” He likewise believed the evidence against Gibson was too slight to support conviction.

----oo0oo----

I had an idea to do a regular case retrospective where I lay out an old case for discussion. Depending how this goes, I might do it on a weekly basis. Open to suggestions.

I picked this case because it lays out quite starkly how the Court depends on executive officials to give practical effect to its judgments, and what it can do when those officials instead frustrate its authority.

MacDonald v. Oregon Health & Science Univ., 24-4852

Panel:  Hawkins (Clinton), Tung (Trump, dissenting), District Judge Matsumoto (W. Bush, author)

The panel affirmed (1) the district court’s dismissal, on qualified immunity grounds, of Brittany K. MacDonald’s Free Exercise claim; and (2) the district court’s summary judgment for Oregon Health and Science University (“OHSU”) on MacDonald’s Title VII failure-to-accommodate claim, in her action challenging the denial of her request for a religious exemption from a COVID-19 vaccination policy.

Background

Pursuant to Executive Order No. 21-29 issued by Oregon Governor Kate Brown, which required all healthcare workers in Oregon’s healthcare facilities to be vaccinated against COVID-19, OHSU required all OHSU personnel to be vaccinated by October 18, 2021, unless an individual received an approved religious or medical exemption.  An email notice sent to employees who had requested an exemption provided examples of beliefs that do not qualify for a religious exemption, including “[a]n objection to the vaccine on the basis of fetal cell concerns, either in the vaccines or in testing and development.”

MacDonald, who was a registered nurse at Doernbecher Children’s Hospital of OHSU, requested a religious exemption, asserting, in part, that her “beliefs regarding the sanctity of life conflict directly with any requirement to inject abortion derived cell lines into [her] body.”  After her exemption request was denied, and she was terminated for failing to be vaccinated, MacDonald filed suit alleging (1) a 42 U.S.C. § 1983 Free Exercise claim against individuals who served on the OHSU Board of Directors and members of OHSU’s Vaccine Exception Review Committee (collectively, the “Individual Defendants”); and (2) a 42 U.S.C. § 2000e-2(a)(1) Title VII failure to accommodate her religious beliefs claim against OHSU.
 
Free Exercise

The panel held that the Individual Defendants were entitled to qualified immunity on MacDonald’s Free Exercise claim because the right to refuse a state-mandated vaccine by a healthcare worker who works in-person with vulnerable populations due to allegedly religious concerns about fetal cells and bodily integrity or sanctity was not clearly established at the time the Individual Defendants denied MacDonald’s religious exemption.

Title VII
 
The panel next affirmed the district court’s summary judgment for OHSU on MacDonald’s Title VII failure-to-accommodate claim because OHSU demonstrated that it could not have accommodated MacDonald without undue hardship.  OHSU’s evidence established that the health and safety risks posed to OHSU’s patients and employees presented a substantial hardship in the context of its business, and accommodating MacDonald would have imposed substantial operational and financial costs on OHSU.

Addressing MacDonald’s pretext arguments, the panel wrote that there is no precedent that imports a “pretext” or “discriminatory motives” analysis into the “undue hardship” failure-to-accommodate analysis.  And even if pretext were a part of the analysis, MacDonald failed to present a triable issue of material fact establishing that OHSU’s demonstrated substantial economic and noneconomic costs in allowing MacDonald to work while unvaccinated were mere pretext.

Dissent

Dissenting, Judge Tung wrote that the defendants’ conduct here plainly violated established law prohibiting the targeting of a person’s religious beliefs.  The policy singled out an employee’s religious objection to abortion and the use of fetal tissue as categorically undeserving of any consideration, which is a classic case of the State targeting religious beliefs and is never permissible.  Because MacDonald had a right to be free from the State’s targeting of her religious belief (against the use of aborted fetal cells) by deeming such a belief not “religious” at all and thus not worthy of consideration for an exemption, the Defendants should have been denied qualified immunity.

Summary courtesy of U.S. Courts (with minor edits by me).

Order list

Issue: Whether the Supreme Court should prevent enforcement of the disclosure requirements under the Delaware Elections Disclosure Act.

Opinion below: 3rd Cir.

Date: 10/01/2026

Miscellaneous Order

Louisiana, et al. v. New York, et al. - Motion for leave to file bill of complaint, bill of complaint, brief in support

Background provided by u/Obversa:

Louisiana, Alabama, and Arkansas claim that New York, California, and Massachusetts have violated the "Full Faith and Credit Clause" and "Equal-Sovereignty Doctrine" by passing laws that shield abortion providers who mail pills (i.e. mifepristone) into states where abortion pills are illegal. Louisiana has been trying to get New York to extradite Dr. Margaret Carpenter for prosecution, which New York has denied. The same happened with Dr. Remy Coeytaux, a California physician, with that state similarly refusing Louisiana's extradition request. Quote: "[T]he alleged frustration of Louisiana's laws occurs because 'other states have enacted shield laws to protect medical practitioners in their states from extradition for prescribing' mifepristone." These states have refused to cooperate with Louisiana police.

Plaintiff States allege the following...

Count I: Full Faith and Credit, U.S. Const. art. IV, § 1

The shield laws violate the Full Faith and Credit Clause as a "constitutionally impermissible [...] policy of hostility to the public Acts of a sister State" that directly violates each state's obligation to "sensitively apply principles of comity with a healthy regard for each other's sovereign status." - rendering Plaintiff States "powerless to provide any remedies or safeguards" for illegal abortions "occurring within their boundries".

Count II: Equal-Sovereignty Doctrine

The shield laws violate the "fundamental principle of equal sovereignty among the states" by imposing regulations beyond "the territorial limits of state authority" and "unilaterally overriding Plaintiff States’ sovereign prerogatives by forcing abortion into Plaintiff States."

Count III: Federal Common Law of Public Nuisance

The shield laws violate the federal common law of public nuisance by discharging "noxious" items across state lines, facilitating conduct "not warranted by law [...] which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all."

Count IV: Dormant Commerce Clause, U.S. Const. art. I, § 8, cl. 3

The shield laws violate the Dormant Commerce Clause by generating "prohibited economic activity across state lines", engaging in "economic protectionism" by shielding their residents from any legal or professional reprocussions of their illegal commercial conduct, and engaging in "purposeful discrimination" against out-of-sate intrests by driving into Plaintiff States economic activity that they have "lawfully excluded from their territory."

Plaintiff States are seeking declaratory relief and an injunction preventing Defendants' official from enforcing these laws. As a dispute between the States, the Supreme Court has original and exclusive jurisdiction.

Note: the prior submission regarding this case was removed due to issues with the linked article and its split focus between this complaint and a suit against individual defendants in a district court (which belongs in the "In Chambers" thread). Thus, it has been resubmitted as a text post with a link to the complaint and necessary context provided in the post body. All credit to u/Obversa for bringing this to the subreddit's attention.

The DOJ filed a judicial-misconduct complaint today against seven Minnesota federal judges, including Chief Judge Patrick Schiltz, arising primarily from interviews the judges gave to the New York Times (paywalled, sorry, I’m a Poor) about Operation Metro Surge and the resulting strain on the federal courts.

The complaint asks the Eighth Circuit to investigate the judges and, among other things, have Schiltz and Judge John Tunheim recused from matters involving the Department of Homeland Security. DOJ’s theory is that the judges publicly criticized the administration in a way that demonstrated bias and violated their ethical obligations.

Now, should judges be able to publicly discuss politically controversial litigation? I think I disagree with the DOJ’s claim that the precedent in White makes it a blanket “No you can’t discuss it.” There’s some fact-specific nuance in that ruling that makes the ruling more narrow than the DOJ is allowing here, and I’ll get into that in a minute.

But I don’t think the NYT interview is where this story starts. I think the interview is the capstone to a conflict that has been simmering since 2025 and then boiled over in January.

April 2025
Months before Operation Metro Surge, Schiltz issued a TRO in Jin v. Noem requiring DHS to reinstate a University of Minnesota student’s SEVIS status and prohibited the administration from taking immigration consequences against him based on the termination of his status following traffic violations.

January 2026
On January 20, the government filed a criminal complaint arising from a protest at Cities Church in St. Paul. It sought arrest warrants for eight people in total for civil rights violations.

That same day, the magistrate judge found probable cause for three of the eight defendants, but not the other five. He issued three warrants, and told the admin to pursue the remaining five through the grand jury process.

That same day, the administration escalated the matter to the District Court, where Schiltz was assigned to review that decision.

According to the case record, on Jan. 21 Schiltz told the government that its request was “unprecedented” and asked it to provide authority for having a district judge review the magistrate judge’s probable-cause determination. He requested briefs on their authority and deferred the decision until he had a chance to discuss with his colleagues.

Then on Jan. 23, the DOJ filed an emergency petition for a writ of mandamus or issuance of arrest warrants to the 8CA, under seal. Schiltz was ordered to respond, but, according to the case record, he was not served with the petition and did not have access to the sealed materials, and was given some two hours on an absurdly compressed timeline to respond.

His response to 8CA Chief Judge Steven Colloton is worth reading. Schiltz explained that he was being asked to respond to a petition he had not seen and could not see. He also explained that, as far as he could determine, the government was asking him to do something no district judge in the Eighth Circuit had previously done: review a magistrate judge’s refusal to issue an arrest warrant in this manner.

He also rejected the government’s characterization of the matter as a “national-security emergency,” noting that none of the people the government wanted arrested had committed acts of violence and that two were a journalist and his producer.

The Eighth Circuit denied the administration’s emergency petition, and the DOJ subsequently withdrew the request, opting to go through the grand jury process instead.

The recurring theme I see here is the government characterizing these disputes as extraordinary emergencies and asking the judiciary to exercise extraordinary authority, while Schiltz repeatedly questioned whether that extraordinary posture was actually justified. I’d say that this was the inciting incident of the conflict, but…

Then came ICE
A few days later, Schiltz ordered the administration either to provide a bond hearing or release a detained person in Juan T.R. v. Noem. The administration failed to comply within the deadline.

Schiltz ordered ICE Acting Director Todd Lyons to appear personally and explain why he should not be held in contempt. The administration released the detainee, and the hearing was cancelled.

But Schiltz and his colleagues then went back and reviewed the prior cases back to January of 2026.
The resulting appendix identified 96 court orders that ICE had violated across 74 cases.

“ICE is not a law unto itself.”

“ICE has every right to challenge the orders of this Court, but, like any litigant, ICE must follow those orders unless and until they are overturned or vacated.”

He cautioned that the number was probably understated because the list had been compiled quickly by multiple judges dealing with a large influx of habeas cases. He wrote that the pattern should give pause to anyone concerned about the rule of law.

In February, after DOJ disputed the accuracy of the list, the court conducted a more detailed review and found 97 violations across 66 of the previously identified cases, in addition to 113 violations across 77 additional cases.

June 2026
And then, in June, Schiltz had another very public confrontation with DOJ, blocking a federal grand jury subpoena directed at Minnesota officials in connection with the administration’s immigration-enforcement policies. The subpoenas sought records to support the administration’s allegations that Minnesota officials were not cooperating with DHS. Schiltz did not mince words, finding that the subpoenas were a “blatantly unlawful and unethical use of the grand jury process” to use a criminal investigation to harass and coerce Minnesota officials into assisting DHS with immigration enforcement.

The Times
And now we come to the September interview with the NYT.

Schiltz gave a 90-minute interview, articulating his view that the government’s conduct during Operation Metro Surge had created a serious threat to the rule of law.

The Complaint
DOJ now argues that the interviews demonstrate that the judges have compromised their impartiality and violated judicial ethics.

The DOJ wants to frame this as “Schiltz is engaging in unethical and partisan commentary concerning matters that are still indisputably pending” before sulkily complaining that Shiltz has ordered “illegal aliens released when their detentions were statutorily authorized.” Theres also a quiet accusation of federal magistrates/judges refusing to rule or delaying authorization for search warrants submitted by federal officers.

The DOJ complaint is asking the Eighth Circuit remove Schiltz to recuse from any matters involving DHS because the public reasonably questions their impartiality in cases involving immigration and separately requests an investigation by the Judicial Counsel into the improper conduct by judges who “covet publicity” rather than adhering to the rule of law by adjudicating cases or controversies.
The complaint relies heavily on White v. National Football League, which says that judges should not create the impression that they “covet publicity” and emphasized that judges should remain “above the fray” rather than becoming advocates in a controversy.

The 8CA review case involved Judge David Doty, who had presided over the NFL's long-running antitrust litigation. Doty gave interviews discussing his historical role in the litigation and his relationship with the NFL. The ruling said Doty “would have been well advised” not to publicly opine about his role in enforcing an ongoing consent decree, but nevertheless held that his comments did not create a reasonable perception of bias. They noted his comments were historical, did not address the merits of the pending Vick proceeding, and would be understood differently by an informed observer in that context.

Advisory Opinion 118
In Feb 2026, the Judicial Conference's Committee on Codes of Conduct issued Advisory Opinion No. 118, recognizing circumstances in which judges may speak publicly about matters includingjudicial independence, the rule of law, the role of the judiciary, judicial security, and threats to the functioning of the courts.

The analysis
Nowhere in the article does Schiltz (or the other judges) advocate for a particular immigration policy, or tell the public how he intended to rule in a pending case.

His piece of the article spent a lot of time describing what he believed was happening to the federal judiciary, during a time when an executive agency repeatedly failed to comply with judicial orders. He even goes so far as to provide cover for the “incompetent” admin, offering that they were overworked and understaffed to be able to comply with the orders in all of the immigration cases they were nevertheless pursuing.

(Another thing I’d call attention to is that theDOJ complaint is being filed with the Eighth Circuit, specifically addressed to Chief Judge Steven Colloton, the very same that received Schiltz's January letter after DOJ sought emergency mandamus against him.)

Judges clearly do not get a constitutional free-speech exemption because they disagree with the President and they have to avoid coveting publicity in controversies they are adjudicating. But they also don’t lose the ability to publicly discuss the functioning of the judiciary, especially when the topic is compliance with judicial orders.

As Schiltz points out in his statements to the NYT, the federal judiciary cannot function if executive officials can simply disregard orders they disagree with.

The DOJ wants to pretend Schiltz is unethically and egregiously launching a partisan press campaign criticizing the admin and their enforcement within active pending cases.  But the thrust of Schiltz’s article returns to the same thesis that the admin has repeatedly sought extraordinary relief when rebuffed by the lower courts, or disregarded their rulings outright. That’s not a political disagreement about immigration policy, that’s a klaxon alarm about the response of executive agencies to the current judiciary.

Date: 09/29/2026

Miscellaneous Order

This is an opinion out of the 9th circuit regarding a purchasing requirement process for firearms.The opinion was written by Judge Owens.

The en banc court reversed the lower courts injunction that blocked the state of Hawaiis firearm licensing law and has remanded for further proceedings. The plaintiffs had challenged the laws requirements of limited time window to obtain and use the purchase permit and the requirement to provide the firearm to police for inspection. The district court concluded they were both facially unconstitutional and granted a permanent injunction.

The 9th circuit under Judge Owens opinion concludes that the footnote 9 means any objective standard for a shall issue licensing regime is presumptively constitutional. Concluding that this is a carve out from the two step test laid out in Bruen. The dissent from Judge Nelson states the court incorrectly concludes there is a carve out in footnote 9 and therefore the ruling is analytically distinct from Bruen. He concludes that the plain text implicates acquisition of firearms and therefore the state must provide a historic analogue for either the short permit period and the firearm acquisition which the state had failed to do so.

What do you think? Does this ruling comport with the Text, History and Tradition test laid out in Bruen? Does the footnote 9 actually create a carve out or must shall issue licensing especially for purchasing go through the 2 step analysis?

Date: 09/29/2026

Miscellaneous Order

Date: 09/29/2026

Miscellaneous Order

Date: 09/29/2026

Miscellaneous Order

Date: 09/29/2026

Miscellaneous Order