Welcome to this week’s newsletter recapping some highlights from the past week in constitutional law. Please subscribe below to receive my weekly Friday posts:
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News Desk - This Week’s Top Ten Headlines
Supreme Court Starts New Term With Free Speech, Double Jeopardy Cases
The Supreme Court kicked off its 2025-2026 term on Monday with oral arguments in two procedural cases. On Tuesday, the Court heard argument in Chiles v. Salazar, a Colorado therapist’s First Amendment challenge to a ban on conversion therapy for minors, and Barrett v. United States, a dispute over separate sentencing in federal gun cases under the Fifth Amendment.Court Declines to Hear Section 230 Cases
In its long conference order, the Court denied certiorari in dozens of cases, declining to hear two cases involving Section 230 of the Communications Decency Act, a key free speech law for online platforms. One case involved Laura Loomer suing social media companies for banning her, while the other stemmed from a lawsuit claiming Facebook’s algorithm radicalized a mass shooter, but both were dismissed, preserving Section 230’s status quo.Comey Pleads Innocence
Former FBI Director James Comey has pled not guilty to DOJ charges of obstruction of justice and false statements related to his 2020 congressional testimony. Unsurprisingly, Comey’s lawyers are challenging the case as vindictive prosecution. Trial is scheduled for January 5, 2026, with the defense also questioning the appointment of the relevant U.S. Attorney, as I discussed here.Court Rules Against Deployment of National Guard to Portland . . .
Both Oregon and California, along with the city of Portland, filed a motion last week seeking a second TRO to block the Trump administration from deploying National Guard troops from any state to Portland. The motion accuses the administration of circumventing a prior order by shifting to out-of-state troops, as directed by DHS Secretary Kristi Noem. Judge Karin Immergut, a Trump appointee, granted the order within hours, prohibiting deployments until October 19, 2025, with a hearing set for Friday.. . . and Chicago
The following day, Illinois and Chicago filed a lawsuit to block deployment of National Guard troops to Chicago, arguing there is no emergency, insurrection, or rebellion justifying the move and citing peaceful protests at an ICE facility in Broadview as the pretext. Differing from Portland’s case, Chicago alleges violations of the Posse Comitatus Act, the Tenth Amendment, and other constitutional principles, accusing the administration of using “brute force tactics” and escalating tensions. Also unlike Portland, Chicago’s case still pending court.Court Rules Officers Had “Zero Training” on the First Amendment
Last week, the Fifth Circuit issued a decision in a case where police officers and security officials prevented a man from distributing religious pamphlets on a public sidewalk outside a city-owned center. A majority reversed the district court’s dismissal, finding the city’s complete failure to train officers on First Amendment rights in public forums caused the violation. However, the court did grant immunity to the individual officers, denying it only to the department.Court of Appeals Allows Further Developments in Eighth Amendment Case
On Wednesday, the Third Circuit partially reversed the dismissal of Jose Montanez’s lawsuit, finding that his complaint adequately stated Eighth Amendment claims for deliberate indifference to his medical needs while in prison. The case is now remanded and will progress through the lower courts.SCOTUS Takes Up New Case Over Criminal Rights
On Friday, the Supreme Court granted certiorari in Hunter v. United States, a case involving a Texas man, Munson Hunter, who pleaded guilty to wire fraud but was told by a trial judge he had a right to appeal despite a plea agreement waiver. The Fifth Circuit dismissed Hunter’s appeal, citing the waiver, prompting Hunter to challenge the dismissal as creating a circuit split. Argument in Spring 2026.SCOTUS Argument in Fourth Amendment Case Set for Monday
On Monday, the Court will hear Case v. Montana to determine whether police need probable cause to enter a home without a warrant in an emergency, following a ruling allowing warrantless entry based on reasonable suspicion. Petitioner argues that probable cause is required under the Fourth Amendment rights, while Montana and the federal government ask for the benefit of the doubt when breaking into people’s houses.After Argument, Supreme Court Poised to Change Law on Mail-In Ballots
On Thursday, the Court heard arguments in Bost v. Illinois Board of Elections, where a majority of justices appeared inclined to reverse lower courts’ rulings that a representative lacked standing to challenge an state law allowing mail-in ballots postmarked by Election Day to be counted up to 14 days later. The justices considered whether candidates need only show an electoral disadvantage, rather than a likely loss, to establish standing. If the Court grants standing, many future cases could rush through the gateway and potentially overturn blue state laws.
Picks of the Week - Articles Worth Your Time
President Trump Holds the Legal Cards on the Use of the Military . . .
Source: Executive Functions | Author: Jack Goldsmith | Link
Powerfully shoots down the narrative that Pres. Trump lacks authority in the Portland and Chicago deployments mentioned above.
Must Administrative Officers Serve at the President’s Pleasure?
Source: Democracy Project at NYU Law School | Author: Caleb Nelson | Link
An originalist critique of the unitary executive theory. Worth a read.
Does History Defeat Removal Doctrine?
Source: Divided Argument | Author: Richard Re | Link
Another thoughtful Article II discussion ahead of my next article on the subject.
Papers and Research - Serious Scholarly Selections
The Functions of Constitutional Monarchy, by Thomas Ginsburg et. al.
A couple years old, but an interesting niche read. Read it here.
The Amended Statute, by Jesse M. Cross
On textualism. Check it out here.
That’s a wrap! Thank you for reading. Like and share below, and I’ll see you this Friday!
In liberty,
Ethan Savka