Overview

The High Court Report covers three major oral arguments from this past week, analyzing constitutional clashes over Second Amendment rights, pension plan calculations, and presidential removal powers. Each case presents fundamental questions about constitutional interpretation, federal authority, and the balance between individual rights and government power.

Takeaways:

Wolford v. Lopez

• Second Amendment treated as second-class right compared to First Amendment protections

• Historical evidence battle focuses on colonial anti-poaching laws and Black Codes versus modern concealed carry contexts

• Justices skeptical that 1771 hunting regulations justify modern permission slip requirements for constitutional rights

M&K Employee Solutions v. IAM

• Pension liability calculation dispute centers on timing of actuarial assumptions versus measurement dates

• Built-in statutory safeguards include professional ethics requirements and mandatory arbitration processes

• Court likely to rule that "as of" creates reference point rather than deadline for calculations

Trump v. Cook

• Presidential removal authority clashes with Federal Reserve independence principles

• "For cause" standard requires judicial review to prevent arbitrary executive actions

• Procedural defects provide potential narrow ruling path without resolving broader constitutional questions

Attribution Episode analysis draws from Daniel Thompson's Substack piece "Litigating Originalism in Bruen: A Brief-Level Coding Study of History, Evidence, and Argument Form" available at https://legalytics.substack.com/p/litigating-originalism-in-bruen-a

Ellingburg v. United States | Case No. 24-482 | Docket Link: Here

1. Opinion: Here.
2. Oral Argument: Here
3. Case Preview: Here

Overview: Ellingburg committed a crime in 1996 before Congress enacted a new law requiring convicted defendants to pay restitution to victims. Courts later sentenced Ellingburg under this new law and ordered him to pay $7,567.25 - money he never paid. Ellingburg challenged this restitution order as unconstitutional retroactive punishment, arguing the government cannot apply new penalties to old crimes. The case forces the Supreme Court to determine whether victim restitution constitutes criminal punishment protected by the Constitution's ban on ex post facto laws.

Question Presented: Whether restitution under the Mandatory Victims Restitution Act of 1996 constitutes criminal punishment for purposes of the Ex Post Facto Clause.

Holding: The Supreme Court held that restitution under the MVRA constitutes criminal punishment subject to Ex Post Facto Clause analysis.

Result: Reversed and remanded.

Voting Breakdown: 9-0. Justice Kavanaugh wrote the opinion for a unanimous Court. Justice Thomas filed a concurring opinion joined by Justice Gorsuch.

Majority's Rationale: Congress explicitly labeled MVRA restitution as a "penalty" for criminal offenses imposed during sentencing alongside imprisonment and fines. The statute appears in the criminal code and requires courts to follow criminal procedure rules when ordering restitution. Defendants who refuse to pay face potential imprisonment for punishment and deterrence purposes, confirming the criminal nature.

Concurring Rationale: Justice Thomas argued the Court should abandon its current twelve-factor test for determining criminal punishment. The original 1798 understanding of ex post facto laws protected against any retroactive government penalties for public wrongs. Modern courts should focus on whether laws impose coercive sanctions for offenses against government authority, regardless of civil labels.

Oral Advocates:

1. For Petitioner: Amy M. Saharia, Washington, D.C. argued for petitioner.
2. For Respondent in Support of Vacatur: Ashley Robertson, Assistant to the Solicitor General, Department of Justice argued for respondent in support of vacatur.
3. For Court-Appointed Amicus Curiae in Support of Judgment Below: John F. Bash, Austin, Texas.

Coney Island Auto Parts, Inc. v. Burton | Date Decided: 1/21/26 | Case No. 24-808

Docket Link: Here

This case involves a time trap tangle examining when void verdicts gain validity. Coney Island's bank account gets frozen for nearly $100,000 based on a 2015 Tennessee judgment they claim they never knew about. When Coney finally fights back seven years later, the Sixth Circuit dismisses the case, saying that you waited too long to challenge the judgment Coney didn’t even know about. If a judgment was invalid from the start, does waiting too long make it become valid?

Question Presented: Whether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.

Holding: Rule 60(c)(1)’s reasonable-time limit applies to a motion alleging that a judgment is void under Rule 60(b)(4).

Result: Affirmed.

Voting Breakdown: 9-0. Justice Alito wrote the majority opinion. Justice Sotomayor wrote an opinion concurring in the judgment.

Majority's Rationale: Rule 60(c)(1) clearly requires all Rule 60(b) motions within reasonable time, including void judgment challenges. Even void judgments face timing limits because no constitutional principle grants unlimited challenge time. Allowing indefinite challenges would create extreme consequences like ignoring appeal and certiorari deadlines.

Concurring Rationale: Rule 60's text and structure clearly require reasonable time limits for all motions. The majority unnecessarily addressed constitutional questions that no party raised or argued. Courts should stick to deciding actual disputes, not inventing constitutional theories.

Link to Opinion: Here.

Oral Advocates:

1. For Petitioner (Coney): Daniel Ginzburg, Freehold, N.J.
2. For Respondent (Burton): Lisa S. Blatt, Washington, D.C.

Berk v. Choy | Date Decided: 1/20/26 | Case No. 24-440

Docket Link: Here

Episode Preview: Here

Overview: Federal Rules of Civil Procedure conflict with state screening requirements raises fundamental questions about procedural uniformity in diversity jurisdiction and limits on state authority over federal court operations.

Question Presented: Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.

Holding: Delaware’s affidavit law does not apply in federal court.

Result: Reversed and remanded.

Voting Breakdown: 9-0. Justice Barrett wrote the majority opinion. Justice Jackson wrote an opinion concurring in the result.

Link to Opinion: Here.

Oral Advocates:

1. For Petitioner: Andrew T. Tutt, Washington, D.C.
2. For Respondent: Frederick R. Yarger, Denver, CO.

Posture: Third Circuit affirmed dismissal; Supreme Court granted certiorari and reversed unanimously.

Main Arguments:

1. Berk (Petitioner): (1) Rule 8 requires only "short and plain statement," precluding additional merit requirements; (2) Rule 12 forbids considering materials outside pleadings for dismissal; (3) Federal Rules displace conflicting state procedural laws in diversity cases
2. Defendants (Choy and Beebe): (1) Rule 11 creates statutory exception allowing state affidavit requirements; (2) Delaware law addresses different issue than Federal Rules; (3) State screening mechanisms constitute substantive law under Erie doctrine

Implications: Berk victory establishes federal procedural rule supremacy over conflicting state requirements, protecting diversity jurisdiction access while potentially eliminating state tort reform screening mechanisms in federal court. Defendants victory would enable states to impose additional federal court barriers beyond Federal Rules requirements, potentially creating procedural chaos through conflicting state requirements and undermining uniform federal court procedures nationwide.

The Fine Print:

1. Federal Rule 8(a)(2): "A pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief"
2. Delaware Code § 6853(a)(1): "No action for medical negligence shall be filed unless the complaint is accompanied by an affidavit of merit signed by a medical professional"

Primary Cases:

1. Hanna v. Plumer (1965): Valid Federal Rules displace contrary state law even when state law qualifies as substantive under Erie; Federal Rules govern procedure in federal court

Trump v. Cook | Argument Date: 1/21/26 | Docket Link: Here

Oral Advocates:

1. For Petitioner (Trump): D. John Sauer, Solicitor General, Department of Justice, Washington, D.C.
2. For Respondent (Cook): Paul D. Clement, Alexandria, Virginia.

Question Presented: Whether Federal Reserve Board governors possess Fifth Amendment property rights in their offices and whether "for cause" removal authority permits presidential removal based on pre-office conduct.

Overview: President Trump's 30-minute ultimatum removal of Fed Governor Cook over mortgage misrepresentations creates unprecedented constitutional crisis testing presidential power against central bank independence and due process rights.

Posture: D.C. Circuit denied emergency stay by 2-1 vote; Governor Cook continues serving pending appeal.

Main Arguments:

• Trump (Petitioner): (1) Federal offices constitute no Fifth Amendment property interest under longstanding precedent; (2) "For cause" permits broad removal discretion for misconduct affecting fitness including pre-office conduct; (3) Presidential removal determinations remain unreviewable by courts absent explicit congressional authorization

• Cook (Respondent): (1) Tenure-protected officers possess constitutionally protected property interest requiring pre-removal hearing under Loudermill; (2) "For cause" historically limited to in-office conduct under 1913/1935 statutory backdrop; (3) Judicial review prevents presidential circumvention of congressional restrictions protecting agency independence

Implications: Trump victory eliminates due process protections for principal officers while expanding presidential control over independent agencies through discretionary "for cause" interpretations. Cook victory establishes constitutional hearing requirements for tenure-protected removal while constraining presidential authority to politicize Federal Reserve monetary policy decisions affecting national economic stability.

The Fine Print:

• 12 U.S.C. § 242: "Any member of the Board may be removed for cause by the President"

• Fifth Amendment: "No person shall be...deprived of life, liberty, or property, without due process of law"

Primary Cases:

• Cleveland Board of Education v. Loudermill (1985): Tenure-protected public employees possess property interest in continued employment requiring pre-termination notice and hearing opportunity

• Taylor v. Beckham (1900): Political offices constitute no property rights protected by Due Process Clause; removal from office triggers no constitutional process requirements

Link to Opinion: TBD.

Website Link to Opinion Summary: TBD.

Timestamps:

[00:00:00] Oral Argument Preview

[00:01:51] Oral Argument Begins

[00:02:00] Trump Opening Statement

[00:04:02] Trump Free for All Questions

[00:27:07] Trump Round Robin Questions

[01:00:10] Cook Opening Statement

[01:02:05] Cook Free for All Questions

[01:30:37] Cook Round Robin Questions

[01:56:24] Trump Rebuttal

M & K Employee Solutions, LLC v. Trustees of The IAM Pension Fund | Argument Date: 1/20/26 | Docket Link: Here

Oral Advocates:

1. For Petitioner (M&K Employee Solutions): Michael E. Kenneally, Jr., Washington, D.C.
2. For Respondent (IAM National Pension Fund): John E. Roberts, Providence, Rhode Island.
3. For United States as (Amicus Curiae Supporting Respondent): Kevin J. Barber, Assistant to the Solicitor General, Department of Justice.

Question Presented: Can pension plans charge higher prices using future prices, or must they stick with the original prices?

Overview: Four companies' pension withdrawal liability tripled from timing of actuarial assumption changes, creating circuit split over whether "as of" December 31st calculations require December 31st assumptions or permit retrospective professional judgment.

Posture: Arbitrators favored companies; D.C. District Court and Circuit reversed, permitting post-measurement assumption adoption with restrictions.

Main Arguments:

1. Petitioners: (1) "As of" language creates statutory deadline requiring pre-measurement assumption adoption; (2) Legislative framework expected annual assumption reviews before measurement dates; (3) Anti-manipulation principles from Section 1394 should apply to actuarial assumptions
2. Respondents: (1) "As of" establishes reference date, not completion deadline for retrospective valuations; (2) "Best estimate" requirement mandates current professional judgment over stale assumptions; (3) Standard actuarial practice permits and encourages post-measurement selection

Implications: Petitioner victory creates uniform nationwide timing deadlines for actuarial assumptions but potentially forces use of outdated professional judgments. Respondent victory maintains professional flexibility and accuracy in pension calculations but creates potential manipulation risks and planning uncertainty. Decision affects multiemployer pension withdrawals nationwide, involving billions in liability calculations. Ruling influences broader questions about statutory interpretation incorporating professional standards and temporal requirements in technical regulatory contexts.

The Fine Print:

1. 29 U.S.C. § 1391: "The amount of an employer's withdrawal liability...shall be computed...as of the end of the plan year preceding the plan year in which the withdrawal occurs"
2. 29 U.S.C. § 1393(a)(1): "actuarial assumptions and methods which...offer the actuary's best estimate of anticipated experience under the plan"

Primary Cases:

1. National Retirement Fund v. Metz Culinary Management (2020): Second Circuit held actuarial assumptions for withdrawal liability must exist by measurement date; automatic rollover applies absent timely changes
2. Concrete Pipe & Products v. Construction Laborers Pension Trust (1993): Withdrawal liability creates "fixed and certain debt";...

Oral Advocates:

1. For Petitioner (Wolford): Alan A. Beck, San Diego, California.
2. For United States (as Amicus Curiae Supporting Petitioner): Sarah M. Harris, Principal Deputy Solicitor General, Department of Justice argues.
3. For Respondent (Lopez): Neal K. Katyal, Washington, D.C.

Question Presented: Whether the Ninth Circuit erred in holding that Hawaii may presumptively prohibit concealed carry permit holders from carrying handguns on private property open to the public without property owner express permission.

Overview: Post-Bruen constitutional challenge to Hawaii's affirmative-consent requirement for carrying firearms on private property open to public creates circuit split over intersection of Second Amendment rights and traditional property law principles.

Posture: District court enjoined law; Ninth Circuit reversed, creating conflict with Second and Third Circuits.

Main Arguments:

• Petitioner: (1) Carrying firearms on private property open to public falls within Second Amendment's plain text protection; (2) Hawaii's presumptive prohibition effectively abolishes public carry rights through property law circumvention; (3) Colonial and Reconstruction-era scattered laws fail to establish sufficient historical tradition under Bruen framework

• Respondent: (1) Second Amendment never protected armed entry onto private property without owner consent under English common law inheritance; (2) Hawaii's law vindicates fundamental property owners' right to exclude rather than restricting Second Amendment rights; (3) Multiple colonial and Reconstruction-era historical analogues constitute "dead ringers" supporting Hawaii's approach requiring express consent

Implications: Petitioner victory establishes robust Second Amendment protection in privately-owned publicly-accessible spaces, potentially invalidating similar post-Bruen restrictions across multiple states and expanding public carry rights significantly. Respondent victory permits states to circumvent direct gun control restrictions through property law mechanisms, enabling broader firearms regulations while preserving traditional property rights and potentially creating complex patchwork of varying consent requirements across jurisdictions affecting everyday carry practices.

The Fine Print:

• H.R.S. § 134-9.5(b): "No person shall carry or possess a firearm on any private property unless that person has been given express authorization by the property owner or the owner's authorized agent through unambiguous written or verbal authorization or clear and conspicuous signage"

• Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"

Primary Cases:

• NYSRPA v. Bruen (2022): Second Amendment protects individual right to carry handguns publicly for self-defense; government restrictions must demonstrate consistency with historical tradition of firearm regulation rather than interest-balancing approach

• Cedar Point Nursery v. Hassid (2021): Property owners possess fundamental right to exclude others from their premises, constituting "one of the most treasured rights of property ownership" requiring government compensation for regulatory takings

Link to Opinion: TBD.

Website Link to Opinion Summary:...

Don't miss this action packed episode. In it, we cover three things:

1. News that the Supreme Court agreed to hear 4 new cases;
2. News that the Supreme Court will issue opinions
3. Stats, trends, and observations of last week's 4 opinions; and
4. Final thoughts on this week's oral arguments

Cases Added: Four new grants bring total to approximately 57 unique cases for the term

1. Geofence Warrants Case: Constitutional challenge to warrants allowing police access to cell phone user data by specific date, time, and location
2. Patent Infringement Case: Intellectual property dispute involving patent protection standards
3. Monsanto/Roundup Case: Product liability challenge over failure to warn about cancer dangers
4. Investment Fund Case: Securities litigation involving pleading standards for fund underperformance claims

Term Outlook: Current case count (57 unique cases) approaches last term's 62-63 cases, suggesting limited additional grants expected

Release Schedule: Supreme Court plans opinion release on Monday, January 20th Coverage Plan: Detailed opinion breakdowns scheduled for Thursday or Friday depending on volume Anticipation: Multiple pending cases await resolution from previous oral argument sessions

Reversal Patterns: Current term mirrors historical 69% reversal rate

1. 3 reversals/vacates vs. 1 affirmance from first four decisions
2. Montana Supreme Court decision upheld; federal circuit courts overturned

Vote Distributions: Early decisions show typical voting patterns

1. 2 unanimous (9-0) decisions: Barrett v. United States, Case v. Montana
2. 1 decision 7-2, 1 decision 5-4
3. 3 criminal law cases, 1 standing/election case

Authorship Patterns: Different justices authored each majority opinion

1. Roberts, Sotomayor, Kagan, Jackson wrote majorities
2. Gorsuch most active: 2 concurrences, 1 dissent
3. Jackson 2nd most active: 1 majority, 1 dissent

Judicial Fracturing Analysis: Early emergence of fractured reasoning despite agreement on outcomes

1. Notable example: Bost v. Illinois where Barrett and Kagan joined conclusion but rejected reasoning
2. Barrett criticized majority's "bespoke standing rule for...