Welcome! This is the first installment of The Docket, a weekly newsletter about the law and the courts. I want to start by telling you what we hope to do around here.
The short answer: to help you make sense of the legal developments that seem to arise almost hourly, put them in context and share some of what I’ve learned over 14 years as a practicing lawyer and over another couple of decades writing about the Supreme Court.
Rumors and Just Deserts
There has been endless chatter about when the justices will rule on President Trump’s tariffs program. Lots of people were certain that the decision would land on Jan. 9, when the court announced it would issue its first opinions of the term. People were just as certain it would come on Jan. 14, the court’s second opinion day, then on Jan. 20, its third. Now it’s Feb. 12, and we’re still waiting.
I was reminded of a speech Justice Ruth Bader Ginsburg gave in June 2012, as the nation awaited the court’s ruling on the constitutionality of key parts of the Affordable Care Act, President Barack Obama’s health care law.
“At the Supreme Court,” Justice Ginsburg said, quoting a journalist, “those who know don’t talk and those who talk don’t know.”
There had been confident predictions, she said, that the health care opinions would land on May 24 of that year.
“Rumor followers attended the session anticipating announcement of the momentous decisions,” she said. Instead, they were treated to one on the Real Estate Settlement Procedures Act.
“They got their just desserts,” Justice Ginsburg said.
An aside: That’s how Justice Ginsburg’s words are rendered in a copy of the speech on the court’s website. “Desserts.” Actually — little known fact — the correct spelling is “deserts.”
I learned this because I once quoted the phrase from a dissent by Justice Antonin Scalia, which had spelled it correctly. An editor changed it to “just desserts” in my story. That led to a correction and a letter of apology from me to the justice.
Justice Scalia responded right away, on really nice stationery. “Your paper’s forthrightness in admitting error shames me into an embarrassing admission,” he wrote. “My law clerk’s draft of the opinion said ‘just deserts,’ and I corrected it to ‘just desserts.’ He rejected the correction, and showed me in Webster’s Second (the authoritative dictionary around here) that I was wrong.”
“Nobody’s perfect,” the justice concluded. “But some of us have really good law clerks.”
Justice Scalia died 10 years ago tomorrow. His letter was off the record, but I think his death, the passage of time and the subject matter allow me to quote from it.
I’m eager to hear your thoughts on that or anything else in this newsletter — on any kind of stationery or, more likely, by email. Write to us at [email protected].
But Seriously, When Will We Get the Tariffs Ruling?
I’ll get there.
The health care decision landed on June 28, 2012, the very last day of the term. (By a 5-to-4 vote, the court upheld the heart of the law as an exercise of Congress’s power to impose taxes.)
The next scheduled day this year for the announcement of decisions is Feb. 20.
It’s theoretically possible that the court could act before then. In a case last year concerning TikTok, and one in 2024 about President Trump’s eligibility to appear on the Colorado primary ballot, the court scheduled decision announcements on less than a day’s notice.
But that seems unlikely with the tariffs decision. The earlier cases involved deadlines: a law about to come into effect, and the Super Tuesday primaries. The challenged tariffs remain in place, and the president has imposed and lifted many others in the meantime.
Still, D. John Sauer, the solicitor general, has pleaded with the justices for a prompt ruling, asking them last September to “expedite resolution of this case to the maximum extent feasible,” because an appeals court loss had “cast a pall of legal uncertainty over the president’s efforts to protect our country.”
By the court’s standards, the justices did put the case on a fast track, scheduling arguments for Nov. 5 last year. That hearing revealed skepticism among members of the court’s conservative majority and divisions about how to address the case. Without Sauer’s request, those splits might have suggested a ruling at the end of the term, by early July, which is when the biggest, most challenging decisions tend to land.
People who listened to the rumors and thought a decision in the tariffs case was likely on Jan. 9 got their just deserts. “Seeing who’s here,” Justice Sonia Sotomayor said from the bench, glancing at Sauer, “it’s not the case you thought.” She went on to announce a single decision: a tangled ruling on when prisoners can challenge their convictions.
After a Slow Start, the Court Had a Busy January
That ruling was notable for one thing: Over the previous 80 years, the Supreme Court had only once waited until January to issue its first opinion in an argued case. I wrote about that delay last month, noting it was most likely caused by the torrent of emergency applications filed by the Trump administration.
The court has picked up the pace, issuing six more decisions in January. That put it ahead of recent terms in the number of decisions in argued cases by the end of January. The flurry also coincided with an abatement in emergency applications from the administration.
The recent decisions were all relatively minor. Five were unanimous, at least on the bottom line. And all but one was argued last October, the term’s first month. Those are all factors that tend to signal early rulings.
The tariffs decision will be a major statement on presidential power. It is unlikely to be unanimous. Those are reasons not to hold your breath for a decision any time soon.
That said, the case was argued early in the term and on the expedited schedule, as urged by the president. Those are potentially reasons to expect prompt action.
So it could come soon. Or not till June. Those who talk don’t know.
Other Legal News
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As veteran lawyers flee the Justice Department, it is struggling to find capable replacements.
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Brad Karp, the chairman of Paul Weiss, the prominent law firm that struck a deal this spring with the Trump administration, resigned from that post after revelations about his ties to Jeffrey Epstein, the disgraced financier.
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It’s said that prosecutors could persuade a grand jury to indict a ham sandwich. But the Trump administration on Tuesday failed to convince a Washington grand jury to indict six Democratic lawmakers for saying, accurately, that military personnel must refuse to follow illegal orders.
A Little Bit About Me
You deserve to know who is hosting this thing. So let me tell you how I got here.
My first job at The Times, right after college, was as a copy boy, a clerical position as menial as it sounds. I carried pieces of paper from desk to desk, fetched coffee for editors and walked across town late at night to retrieve the first edition of The Daily News. This was before the internet.
But I did get one good assignment, which was to help an actual reporter cover the trial of a big libel suit brought by Gen. William Westmoreland against CBS. This was before television networks settled libel cases of questionable merit for millions of dollars.
Being a libel lawyer looked like fun, and after about a year I went off to law school. The only story of any note I published as a copy boy was one in The New York Times Magazine about playing air guitar. (In 2009, The Georgetown Law Journal called it “the definitive article” on the subject.)
I went on to practice First Amendment law for 14 years, first at a Wall Street firm and then in The New York Times Company’s legal department. I did a little freelance writing on the side, but it was a surprise when Howell Raines, The Times’s executive editor at the time, asked me to return to the newsroom in 2002 as the paper’s national legal reporter.
That was a great job. I roamed the country looking for legal stories that others weren’t covering, ones involving real people and hard questions. In 2007, I started writing a column called “Sidebar,” which explored legal developments from fresh perspectives. It ran until last week.
After six years on the national desk, I moved to Washington to cover the Supreme Court, and I did that for 17 years. But this is not a newsletter focused solely on that court. Instead, I hope it will capture the spirit of my years on the national desk and in writing the column: to take account of the entire justice system, to measure its strengths and its flaws, and to make it legible.
What I’m Reading
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“University: A Reckoning,” in which Lee Bollinger, who served as Columbia’s president from 2002 to 2023, makes the case for constitutional protection of American universities.
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“Scalia: Supreme Court Years 1986-2001,” the second installment of James Rosen’s admiring and dishy three-volume biography.
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Harold Hongju Koh on the threat to democracy posed by the concentration of power in the executive branch, in Daedalus.
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Brian Christopher Jones on the history and popularity of pocket-size Constitutions, in The Wisconsin Law Review.
Mailbag
Judge Shopping and Random Assignments
I think most people know the Supreme Court is the ultimate decider, but at the lower court level, how are the cases assigned to the judges? Is it random? — Selwyn Crawford
Assignments at the trial and appeals court levels are meant to be random, but judge shopping at the trial court level is sometimes possible, and some studies have raised doubts about whether assignments in the federal appeals courts are truly random. In the civil rights era, the Fifth Circuit steered cases involving racial equality to more liberal panels. And when the chief judges of federal appeals courts choose visiting trial court judges to sit on appeals panels, one study found “clear and consistent evidence that chief judges, in making designation decisions, tend to choose individuals with similar ideologies.”
Send us your questions at [email protected].
Closing Argument
A.I. in the Classroom
Eric Posner, a law professor at the University of Chicago, sent me a study that he and several colleagues conducted showing that artificial intelligence does a pretty good job grading law school exams, roughly approximating the grades assigned by law professors. At a minimum, they concluded, A.I. could supplement human grading, catching errors and bias.
Law professors, political scientists and other scholars send me a lot of studies (thanks!), and it’s not always easy to tell which ones warrant coverage.
“I wonder if A.I. can tell journalists what scholarship is newsworthy,” I wrote to Posner after a quick scan of the study.
“It can,” he responded. “And it can write your article for you as well.”
I fear that’s true. But this first edition of The Docket was prepared the old-fashioned way. See you next week!
Adam Liptak is the chief legal affairs correspondent of The Times and the host of The Docket, a newsletter on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
The post On Trump’s Tariffs, Supreme Court Hurries Up and Waits appeared first on New York Times.
