The Weekly Roundup strives to provide you a quick look at some of the most recent developments in appellate practice, including information about the U.S. Supreme Court, federal appellate courts, and state appellate courts, as well as some tips and techniques for appellate advocacy being discussed on the web. If you seek information you think should be included, please drop an email to Daniel Real at DReal@Creighton.edu.
U.S. Supreme Court:
- On Tuesday, SCOTUS heard an interesting case involving diversity jurisdiction and what should happen if a federal trial court improperly dismisses a defendant who would have initially deprived the court of jurisdiction — should the “improper” trial be voided and the case sent back to state court for a “proper” trial, or should there be some other remedy to avoid the waste of starting over?
- SCOTUSBlog Preview Post: https://www.scotusblog.com/2025/10/justices-to-consider-diversity-jurisdiction-procedural-problems-and-baby-food/
- SCOTUSBlog Post Argument Analysis: https://www.scotusblog.com/2025/11/court-debates-a-time-limit-on-challenging-void-judgments/
- On Wednesday, SCOTUS heard oral arguments in a pair of challenges to President Trump’s power under the International Emergency Economic Powers Act (IEEPA) to impose sweeping tariffs without Congressional approval.
- SCOTUSBlog Preview Post: https://www.scotusblog.com/2025/10/trumps-tariffs-face-supreme-court-scrutiny/
- Washington Post Preview Article: https://www.washingtonpost.com/politics/2025/11/02/supreme-court-trump-power-tariffs/
- ABA Journal Opinion Piece from Erwin Chemerinsky: https://www.abajournal.com/columns/article/chemerinsky-tariffs-case-before-SCOTUS-could-hinge-on-plain-text-interpretation-of-the-law-or-sway-toward-deference-to-the-president
- SCOTUSBlog Post Argument Analysis: https://www.scotusblog.com/2025/11/court-appears-dubious-of-trumps-tariffs/
- Slate Post Argument Commentary: https://slate.com/news-and-politics/2025/11/supreme-courts-tariffs-trump-fail-kavanaugh.html
- On Thursday, SCOTUS ruled in its “interim” docket via an unsigned opinion to grant the government’s request to temporarily stay rulings by a lower court judge requiring the State Department to issue passports to transgender and nonbinary citizens reflecting the sex designation of their choosing. The result of the order is to require passport applicants to designate their gender at birth, regardless of their personal choice or lifestyle. Justices Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan dissented.
- SCOTUS order: https://www.supremecourt.gov/opinions/25pdf/25a319_i4dj.pdf
- New York Times Report: https://www.nytimes.com/2025/11/06/us/politics/supreme-court-transgender-passport.html
- SCOTUSBlog Summary: https://www.scotusblog.com/2025/11/supreme-court-sides-with-trump-administration-on-sex-designations-on-passports/
Federal Appellate Courts:
- A Maryland Supreme Court justice is at the center of a controversy surrounding a Halloween display on his lawn that included messaging suggesting the current political climate causing the death of the Constitution, free speech, health insurance, due process, and climate science. There is currently pending before the court a landmark climate liability case, and critics suggest the Halloween display casts significant doubt on the justice’s ability to rule impartially in the case.
- Sam Bankman-Fried has appealed to the Second Circuit Court of Appeals, challenging his conviction of fraud and sentence of 25 years in prison. On Tuesday, the Second Circuit heard arguments in the appeal, in which Bankman-Fried’s attorneys argued that the district court deprived him of due process through a series of evidentiary and procedural rulings at trial.
- Courthouse News Article: https://www.courthousenews.com/sam-bankman-fried-asks-second-circuit-for-retrial-of-ftx-fraud-case/
- The Sixth Circuit issued an en banc ruling this week overturning lower court and panel decisions regarding an Ohio school pronoun policy. The school policy allowed for potential discipline of students who use pronouns contrary to another student’s preferred identity. The conservative group Defending Education filed suit, seeking injunctive relief on the basis of alleged First Amendment violations. The district court denied the request for injunction, and a panel of the circuit court upheld the ruling. In the en banc opinion, the court concluded that the school district could not make a sufficient showing that the mere use of non-preferred pronouns would entail aggressive and disruptive action justifying potential infringement on First Amendment speech.
State Appellate Courts:
- This week’s mid-term elections included a retention vote for three justices on the Pennsylvania Supreme Court. All three were retained, maintaining a liberal majority for the court for at least the next two years.
Appellate Advocacy Tips and Techniques:
- BriefCatch recently had a webinar where founder Ross Guberman made a presentation about how litigators can leverage AI. Although it is focused on the trial / litigation phase, that has repercussions for later appellate work and there are thoughts that can be leveraged all the way through:
- Nebraska Supreme Court Justice Lindsey Miller-Lerman was celebrated in a retirement ceremony last week. Miller-Lerman served as one of the original members of the state’s intermediate Court of Appeals starting in 1992, was appointed as the first female justice to the Supreme Court in 1998, and delivered an impeccable record of service over the past 30+ years.
- Nebraska Judicial Branch Release: https://nebraskajudicial.gov/administration/news/justice-lindsey-miller-lerman-celebrates-33-years-service-retirement-open-house