October 2025 cases
The traditional “First Monday” opening of the regular October 2025 Term is October 6 this year, although the court has been particularly active on the “shadow docket” even during the summer recess. See below for tips about preparing for some of the major cases concerning the right to counsel for testifying defendants, a First Amendment challenge to “conversion therapy” bans, ex post facto laws, and two extremely high-profile cases on the final day of this first block of arguments: one on voting rights and another on warrantless searches.
I highly recommend attending in person if possible, which means trying for the online lottery of seats. See this page for information about that and other details, as well as links for information about other options if you can’t go in person.
First Monday, October 6
The first case concerns a clash of principles regarding testimony and the right to counsel. In Villareal v. Texas, as this post more fully explains, the defendant in a murder case was in the middle of testifying when the court ordered an overnight break. The judge instructed him that “[n]ormally your lawyer couldn’t come up and confer with you about your testimony in the middle of the trial and in the middle of having the jury hear your testimony,” and ordered the defense lawyer to “to use [their] best judgment in talking to the defendant because [they] … couldn’t confer with him while he was on the stand about his testimony.” Although all that is essentially true, but decades ago the Supreme Court held that defendants have the right to confer with counsel during overnight recesses:
- The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.
Geders v. US (1976)
Thirteen years later, the Court distinguished short recesses in the middle of a defendant’s testimony, holding that the trial court could prohibit communications with counsel in those circumstances:
- It is the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. See Geders v. United States, 425 U.S. at 425 U. S. 88. The fact that such discussions will inevitably include some consideration of the defendant’s ongoing testimony does not compromise that basic right. But in a short recess in which it is appropriate to presume that nothing but the testimony will be discussed, the testifying defendant does not have a constitutional right to advice.
Perry v. Leeke (1989)
In this case, the Texas Court of Criminal Appeals (the highest court in that state for criminal matters) tried to distinguish both in upholding the lower court’s order:
- This case provides a twist with the trial judge issuing a limited no-conferral order during an overnight recess. The order restricted Appellant’s ability to confer with counsel regarding his ongoing testimony, while allowing discussion on all other aspects of the criminal proceeding.
Most circuit courts of appeal and state high courts that have addressed the issue have held that the sorts of conferrals protected by the Court during overnight recesses are, as the Second Circuit put it, “inextricably intertwined with the ability to discuss his ongoing testimony” such that it is not constitutionally permissible to attempt to limit subject matters. U.S. v. Triumph Capital Group Inc. (2d Cir. 2007). But this case adds Texas to three other state high courts that hold otherwise. In addition to the summary and foundational cases above, an amicus brief from NACDL is always worth reading.
Today’s second case, Berk v. Choy, is not one I would generally recommend to a casual observer. It arises in an interesting enough context: state laws that require medical malpractice lawsuits to be filed with an affidavit from an expert witness attesting to the “merits” of the allegations. But the Court will address only a technical civil procedure / federalism issue: when a case is filed in federal court based on its jurisdiction over cases involving citizens of different states, under 28 U.S.C. § 1332, does the federal court have to incorporate that affidavit requirement? If this interests you, this amici brief from civil procedure professors may be helpful.
Tuesday, October 7
Today starts with one of the more high-profile cases of the term: a First Amendment challenge to Colorado’s ban on “conversion therapy” for minors (the horrific practice of attempting to change a child’s sexual orientation or gender identity). Importantly, the law applies only to licensed mental health professionals (not religious counselors). This is essentially why the lower courts upheld the law as regulation of professional practices rather than speech, and rejected the practitioner’s challenge. The Tenth Circuit noted that professionals’ speech enjoys First Amendment protection as does any other speech, but noted that the Supreme Court case striking down California’s law requiring “crisis pregnancy centers” to provide information concerning abortion specifically distinguished speech from practices. Chiles v. Salazar (10th Cir. 2024), quoting National Institute of Family and Life Advocates v. Becerra (2018) (“States may regulate professional conduct, even though that conduct incidentally involves speech”).
The case has received an extraordinary amount of attention and (by my count) some 87 amici briefs. There’s a useful overview by the Trevor Project that offers more context, and I would also commend this interesting amicus brief from the Korematsu Center arguing, among other things, that “Opponents of Civil Rights Legislation Have Long Tried to Ground a Right to Discriminate in Free Speech or Free Exercise Theories.”
Like yesterday, today’s second argument is not one for the casual observer, as it involves rather difficult criminal procedure issues: “Whether the double jeopardy clause of the Fifth Amendment permits two sentences for an act that violates 18 U.S.C. § 924(c) and (j).” NACDL has a short summary and a brief.
Wednesday, October 8
Bost v. Illinois State Board of Elections involves the contentious issue of mail-in ballot procedures, but the Court will address only technical standing issues so I wouldn’t recommend this one for the casual observer. The Seventh Circuit held that challengers lacked standing because the voters did not have a “concrete and particularized” injury and the candidates could point only to “speculative” notions of how they could be harmed. The case makes for unusual alliances, with the ACLU and League of Women Voters on the same side as the Republican Party.
Today’s second case, USPS v. Konan, likewise has limited appeal, involving interpretation of the Federal Tort Claims Act: “Whether a plaintiff’s claim that she and her tenants did not receive mail because U.S. Postal Service employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter under the Federal Tort Claims Act.”
The Court is closed on Monday, October 13 in observance of Columbus/Indigenous Peoples’ Day
Tuesday, October 14
I wouldn’t suggest the technical civil procedure issues in Bowe v. US (“(1) Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255; and (2) whether Subsection 2244(b)(3)(E) deprives this court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under Section 2255.”)
But today’s second case, although also a bit dense, should be interesting and accessible to the casual observer interested in criminal law and constitutional limits on ex post facto laws. Ellingburg v. US challenges the retroactivity of the Mandatory Victim Restitution Act. This case finds the Cato Institute on the same side as NACDL, both of whom have useful explainers and briefs.
Wednesday, October 15 — Voting Rights & Searches
Two major cases today, as the Court finishes its first block of cases.
Up first is Louisiana’s congressional redistricting map. Louisiana v. Callais is a very complex case — so much so that it was argued last March but the Court ordered further briefing and another oral argument day on additional issues. In essence, there is an asserted clash between the Voting Rights Act, which in some circumstances requires states to be cognizant of race when redrawing districts in order to prevent the dilution of the minority vote, and the constitution’s Equal Protection Clause, which the Court has increasingly insisted requires race neutrality. See the explainers from Amy Howe and from the Election Law Blog.
Today’s second case involves warrantless searches. It is axiomatic that police may enter a home without a warrant only in limited circumstances, including, as asserted in Case v. Montana, where there are “exigent circumstances” requiring “emergency aid.” But do police need probable cause to believe there is such an emergency, or only some lesser level of suspicion? The Circuit Courts are split on that question, and the cert. petition here suggests that the case presents a useful set of facts to resolve the issue. The defendant’s girlfriend told police he was a suicide risk, but the responding officers knew him and body cam evidence shows them all stating “that it was unlikely Case required immediate aid, but rather was likely lying in wait for them to commit suicide by cop.” The Montana Supreme Court majority held that the girlfriend’s report created sufficient reasonable suspicion to permit warrantless entry, while the dissent opined that probable cause to believe he was in imminent danger was required and was negated by the officers’ statements and actions in waiting 40 minutes. The ABA has a short overview and the APA has an interesting brief in support of neither side.