Chief Justice John Roberts is a fan of the Supreme Court’s long summer recess. After the sharp divisions and biting dissents that always emerge at the end of the term in late June or early July, he has said, the justices need some time to cool down before they return to the bench.
“We do need a little break from each other,” he said last year in Buffalo.
That break is vanishing as emergency applications have started to dominate the court’s docket. Those intense and abbreviated proceedings, often yielding nominally temporary but vastly consequential rulings, have changed the way the justices work.
The emergency rulings stand in sharp contrast to the court’s ordinary work. From the first Monday in October through April, the justices hear oral arguments after studying two rounds of detailed briefs. Afterward, they meet in person to deliberate and, by early summer, issue lengthy opinions setting out their reasoning.
Then, back in the day, they would settle into a long vacation.
But when the justices return to the bench on Monday to hear the first argument of this term, in a case on climate change, they may not seem especially rested and refreshed.
The Trump administration filed its 41st emergency application earlier this week. That matched the number of such applications filed over the entirety of the president’s first term, which was itself unprecedented, according to a tally kept by Steve Vladeck, a law professor at Georgetown.
The fire hose of applications did not pause for the court’s summer recess. In just the past month or so, the court has twice weighed in on a Trump plan to curtail voting by mail, cleared the way for his White House ballroom, let him deport migrants to distant countries with which they had no connection and allowed his administration to use an expansive online system to let states hunt for ineligible voters.
The summer, other parties filed another 20 or so emergency applications. The court on three occasions, for instance, rejected applications concerning a voting map gerrymandered to help Republicans in Missouri.
In remarks at a judicial conference in Colorado Springs on Friday, Justice Neil Gorsuch indicated that things had indeed gotten out of hand.
“The rise of the emergency,” he said. “The perpetual emergency. Everything is an emergency.”
That crisis atmosphere cannot help relations that have already showed signs of fraying.
“Deciding a slew of cases over the summer on tight turnarounds, right on the heels of completing a hectic term seems like a perfect recipe for tempers flaring,” said Justin Driver, a law professor at Yale who served as a law clerk to Justice Stephen Breyer.
“The summer recess has traditionally provided much-needed time for the justices to reset, restore and, above all, to get away from each other,” he added. “But it’s awfully hard to miss one’s colleagues if you never get a break from them.”
The number of emergency applications has been ticking up over recent years. Even before the current explosion of such filings, justices said they missed the leisure and quiet that had marked the warmer months.
“Our summers used to actually be summers,” Justice Elena Kagan said at a judicial conference in 2024. “It was one of the great things about our calendar is that it was spaced out so that we would have a break before we went back to the hothouse of decision-making.”
In remarks at the University of California, Berkeley, that same year, Justice Sonia Sotomayor said the constant flood of urgent matters was not what she had signed up for.
“There used to be a time when we had a good chunk of a summer break,” she said. “Not anymore. The emergency calendar is busy almost on a weekly basis. I’m working harder than I ever have. And to be almost 70 years old, this isn’t what I expected.”
She is now 72. Four of the justices are in their 70s.
In remarks in Houston in March, Chief Justice Roberts, who is 71, showed his age by invoking a hit song from the 1960s to make a point about the value of a real summer break.
“My approach is, ‘See You in September,’ one of the best songs,” he said. “But so that helps sort of recharge the batteries.”
Professor Driver recalled a memo that a young John Roberts wrote as a 28-year-old lawyer in the Reagan White House in 1983. The justices, who would go on to hear 184 arguments in the term that started that October, were complaining that they were overworked.
The future chief justice, whose court these days hears about 60 arguments a term, was unsympathetic.
“While some of the tales of woe emanating from the court are enough to bring tears to the eyes,” he wrote, “it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”
Professor Driver said the chief justice most likely rued that comment.
“After leading the court for more than two intense decades,” he said, “I hope that Roberts now looks back on that memo as a youthful indiscretion.”
Noel Black contributed reporting.
Other Legal News
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Chief Justice Roberts’s summer break has become less tranquil for another reason: his home on an island in Maine has been the site of protests by “kayak-tivists” and others.
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The Justice Department on Wednesday accused two federal judges in Minnesota of misconduct for talking to The New York Times about how their court handled the administration’s immigration surge in Minneapolis this winter. Judge Patrick Schiltz said in a statement that he had acted “well within the ethical rules that apply to federal judges.”
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Last week I wrote about the 11th Circuit’s puzzling postponements of arguments over the release of a report from Jack Smith, the special counsel who prosecuted Trump on charges that he had mishandled classified documents. The appeals court first scheduled the arguments for June 2026 and then repeatedly postponed them, tentatively settling on Jan. 18, 2027. On Wednesday, the court had a change of heart, setting the case down for argument on Nov. 2.
An Appeals Court Judge Complains
“They release these short orders that are sometimes really unclear to the circuit courts.” — Judge David Stras of the U.S. Court of Appeals for the Eighth Circuit, speaking on Saturday at a conference at William & Mary Law School.
My colleague Ann Marimow was there and filed this report:
The conference is held each year ahead of the start of the Supreme Court term and attended by lawyers, academics, journalists and others. A panel discussion moderated by our colleague Abbie VanSickle turned to a series of election-related cases the Supreme Court has heard recently.
The previous night, the justices for the third time had blocked Missouri from using a voting map that was redrawn to give Republicans an advantage in the November election. The court’s order was a slap-down of sorts, with the justices essentially telling the 8th Circuit Court of Appeals — which days earlier had said the state should use a different map — that it should have gotten the message the first or second time the Supreme Court dealt with the issue this summer.
In both of those instances, the Supreme Court provided no reasoning or explanation for its actions, leaving the lower courts in Missouri with little insight into how the justices were viewing the issue.
At that point, who should chime in from the audience but Judge Stras, a Trump appointee who had been part of the appeals court panel reversed by the court? He asked the panel at the conference, which included three law professors, to address an ongoing debate over just how much reasoning the justices should provide when they issue quick-turn emergency orders.
He noted that the court releases orders that are “sometimes really unclear.”
He went on to defend the Supreme Court, saying that in his view, there are often good reasons for writing less.
For his part, Judge Stras did not join all of the unsigned majority opinion of the appeals court that the Supreme Court rejected, one that would have allowed Missouri to use the map favoring Republicans. He would have ruled that the challengers lacked standing to appeal because they had not suffered a distinct injury. (The Supreme Court disagreed with that, too.)
Abbie then prodded Judge Stras to expand on the issue. He said there were lessons to be learned from the episode. A key one: Supreme Court orders without reasoning can invite error.
“It would have been better to have a little bit more, in terms of tell us what to do,” he said. “What’s off limits and what can we look at?”
Ann, Abbie and I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
Monetizing Mortification
A couple of times a week, I get an email from Classmates.com offering to sell me a copy of my high school yearbook or telling me that someone has searched for me in a digital database the company has created from it and 450,000 others.
The messages are annoying, and I should have tagged them as spam long ago. But it had not occurred to me that the company’s business model raises tough legal questions until the Ninth Circuit issued a ruling last week certifying a class action against the company. The court said it may have run afoul of a California law that prohibits using people’s names or likenesses for commercial purposes.
“Although a Joe Schmoe could not command the kind of multi-million-dollar endorsement deal that might be offered to a celebrity,” Judge Marsha Berzon wrote for a unanimous three-judge panel, “it is reasonable to infer that even an average person whose likeness a company seeks to use in connection with advertising could negotiate at least a nominal licensing fee for such use.”
A lot of us, moreover, are not eager to revisit the hairstyles, clothing choices and quotations our 18-year-old selves thought cool.
“For much of the 150-plus-year history of school yearbooks, the embarrassing photographs and cringe-worthy anecdotes featured in these annual volumes languished in obscurity, tucked away in basements and closets across the country,” Judge Berzon wrote. “That obscurity no longer holds.”
I was also surprised to learn that a book exploring this topic was published last year: “School Yearbook: The Untold Story of a Cringey Tradition and Its Digital Afterlife,” by Kate Eichhorn. In it, she wonders about the wisdom of “broadcasting everyone’s acne and terrible haircuts for the whole world to see.”
Please send me your comments on summer breaks, unexplained orders, your high school yearbook or anything else at [email protected]. See you next week. — Adam
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