October 22, 2026 | Volume 34, Issue 2
This Report summarizes cases granted review on October 13 and 19, 2026 (Part I).
Cases Granted Review
Association for Education Fairness v. Montgomery County Board of Education, 26-12.
The question presented (as rephrased by the Court) is whether “a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.” Respondent, a school board in Maryland (Board), has four magnet middle schools that students must apply to attend. Between 2017 and 2020, the Board altered its selection process for the magnet schools. First, for the in-person cognitive abilities exam that students must take, the Board began comparing a student’s results against students in schools with similar economic circumstances instead of against national results. Second, the Board began taking into account whether a student’s home school had a “peer group” of 20 or more similarly high performing students. The Board called this new selection process the “field test.” In 2020, amid the COVID-19 pandemic, the Board again changed its selection process, this time by removing the in-person exam and moving to a lottery system. Under this process―which is still in place―the Board first scores elementary school students based on a variety of academic criteria, such as grades and standardized test scores, and then ranks the scores by comparing students with similar economic circumstances. The Board enters all students who fall within the 85th percentile of that ranking into a lottery either to enter the magnet schools or to receive “enriched instruction” at their home school.
Petitioner, an organization consisting of parents from the school district, sued to challenge under the Equal Protection Clause the field-test selection process and, in an amended complaint, the lottery selection process. According to petitioner, the Board adopted the field-test selection process and then the lottery selection process to achieve “racial balancing” in the magnet schools, with the intent to decrease the number of Asian-American students attending those schools. Prior to the Board’s adopting the field-test selection process, Asian-American students made up about 50% of the students at the four magnet schools. After adoption of the field-test selection process, the percentage of the magnet schools’ student population identifying as Asian-American decreased. Under the lottery system, the percentage of Asian-American students at two of the four magnet schools increased, while the percentage at two other magnet schools decreased. Petitioner alleged that these decreases coupled with statements from Board members about seeking more diversity—and purportedly the adoption of the field test to achieve that diversity—show that the current lottery selection process violates the Equal Protection Clause.
The district court dismissed petitioner’s complaint. Because the lottery selection process was facially race neutral and applied even-handedly, the district court held that under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), petitioner had to show that the lottery selection process was (1) the result of a discriminatory intent and (2) had a disparate impact on Asian-American students. The court held that petitioner’s amended complaint failed to sufficiently allege either prong. As to the disparate-impact prong, the district court held that petitioner could not state a claim because Asian-American students “consistently have occupied a proportionally greater share of students admitted into the magnet program as compared to their representation in the applicant pool.” As to discriminatory intent, the district court held that although some Board members made statements suggesting racial balancing motives for the field-test selection process, the Board had a completely different membership when it implemented the lottery selection process, and the new members made no such statements. In an unpublished per curiam opinion, the Fourth Circuit affirmed. 2026 WL 281028
Addressing exclusively the disparate-impact prong, the Fourth Circuit held that the district court had appropriately applied the standard laid out in Coalition for TJ v. Fairfax County School Board, 68 F.4th 864 (4th Cir. 2023). There, the Fourth Circuit held that to show disparate impact a plaintiff must show that the admissions criteria suppressed the targeted group’s enrollment at least below the group’s share of the applicant pool. The court reasoned that “an assessment of the attainments of one group in isolation will not answer the question of whether a challenged policy ‘bears more heavily on one race than another.’” The Fourth Circuit instructed that, instead, the proper inquiry is a racial group’s “success rate . . . under the challenged admissions policy” as compared to “how separate, otherwise similarly situated groups fared in securing offers of admission.”
Petitioner argues that under the Fourth Circuit’s standard “if the government shows that it achieved perfect racial balance relative to the applicant pool, it wins, even if there is evidence that the government intentionally discriminated against a racial group to get there.” According to petitioner, that outcome runs counter to Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), which held that “[o]utright racial balancing” is “patently unconstitutional.” Petitioner further argues that the Fourth Circuit’s requirement for aggregate data runs counter to the Equal Protection Clause’s status as a personal right. Petitioner notes that the Supreme Court has never required a showing of disparate impact for this type of claim and argues that requirements like the Fourth Circuit’s “transform[] disparate impact from a piece of evidence relevant to intent into a gatekeeping requirement that forecloses any inquiry into intent at all.”
Department of Justice v. McNutt, 26-204.
The Court will resolve whether the prohibition on home distilling in 26 U.S.C. §5178(a)(1)(B) “is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.” Congress first taxed distilled spirits in 1791 and first barred stills in dwelling houses in 1866. The tax attaches to distilled spirits “as soon as” the spirit “is in existence.” 26 U.S.C. §5001(b). Section 5178(a)(1)(B) states: “No distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house[.]” Under 26 U.S.C. §5601(a)(6), anyone who uses, or possesses with intent to use, a still in a prohibited location faces a fine of up to $10,000, imprisonment of up to five years, or both. A Treasury regulation states that “[a] person may not produce distilled spirits at home for personal use.” 27 C.F.R. §19.51.
Respondents are Scott McNutt, three other individuals who want to distill spirits at home, and the Hobby Distillers Association, an organization of roughly 1,300 members, that advocates legalizing at-home hobby distilling. In 2014, the Alcohol and Tobacco Tax and Trade Bureau (TTB) sent McNutt a “Notice of Potential Civil and Criminal Liability” stating that he “may have purchased a still capable of producing alcohol.” In 2023, TTB told the individual respondents’ attorney that it would not consider a permit request for home distilling. Respondents then brought a pre-enforcement challenge in district court, arguing that the ban exceeds Congress’s powers under the Commerce, Taxing, and Necessary and Proper Clauses. The district court held that only McNutt (and, through him, the association) had standing and that the ban exceeds both the taxing and commerce powers. The court permanently enjoined the ban’s enforcement against McNutt, the association, and the association’s members. The government appealed but did not challenge the Commerce Clause ruling. The Fifth Circuit held that all four individuals have standing and otherwise affirmed. 173 F.4th 204.
The Fifth Circuit ruled, first, that the ban is not itself an exercise of the taxing power because it raises no revenue; instead, the provisions “amount to an anti-revenue provision that prevents distilled spirits from coming into existence.” Second, the court held the ban is not “plainly adapted” to executing the taxing power under McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), because it “reduce[s] revenue by preventing individuals from making distilled spirits.” The court relied on United States v. Dewitt, 76 U.S. (9 Wall.) 41 (1869), which “rejected Congress’s attempt to ban one product in order to further taxation of another product.” And the Court distinguished Felsenheld v. United States, 186 U.S. 126 (1902), as involving regulations of “the very articles” being taxed. Third, the court held the ban is not “proper” because it “invaded the reserved police and regulatory power of the states,” reasoning that “[u]nder the government’s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity.” Eleven days later, the Sixth Circuit reached the opposite conclusion. Ream v. U.S. Dep’t of the Treasury, 174 F.4th 480 (2026). It reasoned that because stills are “more easily hidden in homes than in bonded premises,” the ban “shifts consumption from untaxed spirits to taxed spirits.”
In its petition, the government maintains that the ban, enacted in response to widespread evasion of the spirits tax, is necessary and proper to collecting the tax. It invokes Felsenheld’s statement that Congress “may prescribe any rule or regulation which is not in itself unreasonable” for the manufacture of taxed goods, and argues that Dewitt is distinguishable because it involved a ban on an untaxed product. The government insists that the location restrictions directly promote tax collection by “channeling distilling activities to locations that facilitate the government’s efforts to inspect distilling operations and prevent evasion of the tax.” The government contends that the Fifth Circuit erred by focusing only on would-be distillers who forgo distilling altogether rather than on whether compliance furthers collection. The government adds that, under the Fifth Circuit’s logic, any condition on taxable conduct, such as requiring distillers to register their plants, would be impermissible.
U.S. DOGE Service v. U.S. District Court for the District of Columbia, 25-1103.
This case arises out of a district court order requiring the U.S. Department of Government Efficiency Service (DOGE) to respond to discovery propounded to address whether DOGE qualifies for an exemption under the Freedom of Information Act (FOIA). The two questions presented are: (1) “Whether the court of appeals’ order departed from this Court’s instructions and the separation-of-powers principles that this Court articulated in Cheney v. United States District Court, 542 U.S. 367 (2024)”; and (2) “Whether a court may order broad discovery against an Executive Office advisory board—potentially providing much information sought on the merits of a plaintiff’s FOIA claims—to determine whether FOIA’s disclosure requirements apply in the first place.”
Respondent Citizens for Responsibility and Ethics in Washington submitted a FOIA request to DOGE in early 2025. The government asserted that FOIA does not apply to DOGE because (it said) DOGE falls within the FOIA exemption for entities within the Executive Office of the President that do not exercise substantial independent authority and instead solely advise and assist the President. Respondent filed suit seeking a declaration that DOGE is subject to FOIA and an order requiring DOGE to process the FOIA request. The district court denied respondent’s request for a preliminary injunction but, interpreting respondent’s request as one for expedited processing, ruled that DOGE likely was an “agency” under FOIA; it ordered DOGE to expedite production of the requested documents. The government moved for summary judgment. In support, DOGE offered a declaration from its administrator, stating that DOGE lacked any legal authority other than to advise the President. Respondent sought expedited discovery under Federal Rule of Civil Procedure 56(d) to oppose the motion. Among the requests the district court approved over government objections were a deposition of DOGE’s administrator; a deposition of DOGE under Rule 30(b)(6); information about DOGE employees’ access to classified systems in other agencies; information about the DOGE teams at separate executive agencies; and information about DOGE’s recommendations to cancel or rescind agency contracts and the agencies’ response to those recommendations.
The government petitioned the D.C. Circuit for a writ of mandamus, which the D.C. Circuit denied in an unpublished order. The court observed that the discovery was “modest in scope” and that the government “retains every conventional tool to raise privilege objections on the limited question-by-question basis foreseen here on a narrow and discrete ground.” Coupled with the D.C. Circuit’s previous endorsement of “limited discovery to determine agency status under FOIA,” the court concluded that the government failed to meet the high bar for a writ of mandamus. The government sought a stay from the Supreme Court. The Court granted the stay and additionally treated the request as a petition for writ of certiorari. 145 S. Ct. 1981 (2025). In its summary disposition vacating the denial of mandamus and remanding, the Court stated that “portions of the District Court’s April 15 discovery order that require the Government to disclose the content of intra-Executive Branch USDS recommendations and whether those recommendations were followed are not appropriately tailored.” The Court continued: “Furthermore, separation of powers concerns counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.” The Court instructed that on remand the D.C. Circuit “should take appropriate action to narrow the April 15 discovery order consistent with this order.” The Court stayed the district court’s discovery order pending the D.C. Circuit’s remanded consideration and the Court’s resolution of any subsequent petitions for writ of certiorari.
On remand, respondent withdrew requests seeking information about DOGE’s intra-executive branch recommendations. Determining that the Supreme Court’s order did not require anything more, the D.C. Circuit entered mandamus as to those withdrawn requests but otherwise denied the government’s mandamus petition.
The government argues that the D.C. Circuit “adopted an unduly cramped interpretation” of the Supreme Court’s order and that the Court required the D.C. Circuit to reconsider all of respondent’s discovery requests. Characterizing the requests as “extensive,” the government asserts that respondent’s discovery “necessarily ‘implicates the separation of powers’” and runs afoul of the Supreme Court’s decision in Cheney. According to the government, Cheney addressed separation-of-powers concerns arising from discovery sought from presidential advisors by requiring lower courts to “‘explore other avenues, short of forcing the Executive to invoke privilege’ and to ‘precisely identif[y]’ and ‘narrow’ any discovery to avoid unnecessary ‘burdens . . . on the Executive Branch.’” The government argues that each category of respondent’s discovery requests fails to satisfy Cheney’s requirements.
The government also challenges whether it is ever appropriate to serve discovery on an Executive Office entity to determine whether it is subject to FOIA. The government asserts that the determination about whether an entity qualifies as an agency turns entirely on “interpretation of a body’s legal authorities and requires no discovery.” According to the government, because the executive orders creating DOGE describe its authority “in purely advisory terms,” respondent has no basis for discovery about DOGE’s activities.
Blanche v. Ozurumba, 25-1343.
Under 8 U.S.C. §1182(a), aliens who provide “material support” to terrorist organizations are ineligible for asylum and withholding of removal. The question presented is “whether, under 8 U.S.C. 1182(a)(3)(B)(iv)(VI), such support must advance the organization’s actual commission of terrorism to qualify for that bar.” Respondent is a Nigerian national who began working as a cook at a camp, unaware when he started that the camp was run by the “Unknown Gunmen,” an organization engaged in terrorist activities against parts of the Nigerian government. Upon learning about the Unknown Gunmen’s terrorist activities, respondent expressed opposition to those tactics, at which point the group stopped paying him and prohibited him from leaving. After six months working as a cook for the camp, respondent escaped. He eventually entered the United States illegally and presented himself to Border Patrol with a request for asylum.
The Immigration Judge (IJ) held that respondent was ineligible for asylum or for withholding of removal under §1182(a) because the Unknown Gunmen qualified as a “terrorist organization,” and respondent’s six months of cooking for the organization qualified as “material support.” Although the IJ found respondent credible regarding his account that his work had been involuntary, the IJ applied Board of Immigration Appeals (BIA) precedent that there is no implied duress exception to the “material support” bar in §1182(a). The BIA affirmed. The Fourth Circuit granted a petition for review and vacated the BIA’s decision, holding that respondent’s activities did not qualify as “material support.” 153 F.4th 396.
Relying on dictionary definitions of “material,” the Fourth Circuit opined that such support “must be both relevant (logically related to terrorism) and significant (enough to make a difference).” The court held that “‘material support’ is support that is sufficiently substantial standing alone to help the terrorist organization accomplish its terrorist activities.” The court concluded that respondent’s cooking for the Unknown Gunmen did not qualify under that standard: such activity “provided nothing that the organization could use or readily divert to plan or carry out its terrorist activities.” Because the court vacated the BIA’s opinion on those grounds, it declined to address respondent’s alternative argument that there is an implied exception in §1182 for “material support” provided under duress.
In its petition, the government argues that the Fourth Circuit improperly required a nexus between the support and the terrorist activities of an organization for that support to be “material.” Instead, according to the government, the “material support” bar in §1182(a) “applies to all who help a terrorist organization function, not just to those who specifically advance its terrorist activities.” The government further argues that the Fourth Circuit’s decision conflicts with Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). According to the government, in Humanitarian Law Project the Court interpreted 18 U.S.C. §2339B—the criminal bar against “material support” for terrorist organizations—as applying to material support for the terrorist organization generally, rather than just its terrorist activities. The government asserts that this holding governs interpretation of §1882(a) as well.
Berry v. United States, 25-7026.
The question presented is “[w]hether a certificate of appealability under 28 U.S.C. §2253 should be granted where the issue that the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.” Under §2253, neither a state prisoner seeking federal habeas relief nor a federal prisoner moving to vacate his sentence under 28 U.S.C. §2255 may appeal the final order in that proceeding “[u]nless a circuit justice or judge issues a certificate of appealability” (COA). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” §2253(c)(2). To make that showing, the applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Corey Berry pleaded guilty in 2014 to, among other offenses, brandishing a firearm during a “crime of violence” in violation of 18 U.S.C. §924(c). His first §2255 motion challenging that conviction was denied. After obtaining the Eleventh Circuit’s authorization, Berry filed a second §2255 motion relying on United States v. Davis, 588 U.S. 445 (2019), which held the §924(c) residual clause unconstitutionally vague. The district court denied the motion and a COA, explaining that under Eleventh Circuit precedent, Berry had to show that the sentencing court more likely than not relied solely on the residual clause. Berry then sought a COA from the court of appeals. In his motion, Berry noted that other circuits disagree with the Eleventh Circuit’s burden-of-proof precedent: the Third, Fourth, and Ninth Circuits require only a showing that the sentencing court may have relied on the residual clause. An Eleventh Circuit judge nonetheless denied Berry a COA. Citing Hamilton v. Secretary, Florida Department of Corrections, 793 F.3d 1261 (11th Cir. 2015), the order stated that the court “will not issue a COA when a claim is foreclosed by binding circuit precedent, as reasonable jurists will follow controlling law.” (And under Eleventh Circuit Rule 22-1(c), a COA denial may not be the subject of a petition for rehearing en banc.)
Berry notes that the circuits are divided on the question presented. Berry also maintains that the question recurs frequently given the volume of habeas filings, including in capital cases, and the prevalence of circuit splits in federal habeas law. He also contends that the restrictive rule impedes en banc reconsideration of circuit precedent and limits the Supreme Court’s ability to resolve circuit splits because COA denials make poor certiorari vehicles. Berry argues that an issue on which the circuits have divided is by definition one “reasonable jurists could debate.” He relies on Lozada v. Deeds, 498 U.S. 430 (1991) (per curiam), which summarily reversed the denial of a certificate of probable cause because “at least two Courts of Appeals” had resolved the issue differently. Because §2253(c)(1) authorizes a Supreme Court Justice to issue a COA, he adds, “reasonable jurists” cannot be limited to judges bound by home-circuit precedent. He further argues that Hamilton converts the COA inquiry into a merits determination, contrary to Miller-El v. Cockrell, 537 U.S. 322 (2003), and Buck v. Davis, 580 U.S. 100 (2017).
The government’s brief in opposition does not address whether Hamilton’s rule is correct. It instead argues that the disagreement has no significant practical effect on the outcome of §2255 claims because a COA would merely permit an appeal to a panel bound by the same precedent, while en banc and certiorari review of COA denials remain available.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lee Green, Supreme Court Fellow
- Erica Connolly, Supreme Court Fellow
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