The Supreme Court on Monday added one new case, involving the double jeopardy clause and the Hobbs Act, to its docket for the 2025-26 term. The justices opted not to intervene in a First Amendment challenge to a “bias response” teams on a university campus, with Justices Clarence Thomas and Samuel Alito indicating that they would have taken up the case.
The justices once again did not act on several high-profile petitions for review, including a challenge to Maryland’s ban on military assault-style weapons and Rhode Island’s ban on large-capacity magazines.
The announcement that the court had granted review in Barrett v. United States came as part of a list of orders released from the justices’ private conference on Friday, Feb. 28. Dwayne Barrett was convicted of Hobbs Act robbery and related charges. In Barrett, the justices agreed to decide whether the Fifth Amendment’s ban on double jeopardy prohibits sentencing him for two different crimes based on the same robbery.
Last year the Supreme Court set aside a decision by a federal appeals court in Virginia in a challenge to so-called “bias-response team policies,” procedures created by universities to solicit, track, and investigate reports of bias. Speech First, a nationwide group that describes its mission as putting “colleges and universities on notice that shutting down unwanted speech will no longer be tolerated,” had argued that the bias protocol at Virginia Tech violated the First Amendment by causing its members to censor their speech.
In March 2024, the Supreme Court threw out a ruling by the U.S. Court of Appeals for the 4th Circuit holding that the group lacked a legal right to sue, known as standing. It told the lower court to dismiss the case because Virginia Tech had changed its policy.
Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the decision to set aside the 4th Circuit’s decision. They indicated that they would have granted the group’s petition, explaining that it “raises an important question affecting universities nationwide” and expressing “serious concerns that bias response policies, such as Virginia Tech’s, objectively chill students’ speech.”
Speech First returned to the court in September, this time challenging a ruling by the U.S. Court of Appeals for the 7th Circuit that – like the 4th Circuit – found that Speech First lacked standing to bring its lawsuit against Indiana University. It contended that “[r]esolving this dispute is vitally important to the rights of college students across the country.”
The university urged the justices to deny review. It characterized the question that Speech First had asked the justices to decide as “an improper hypothetical about some abstract conglomeration of unspecified ‘bias-response teams.’” But in any event, the university added, this would not be an appropriate case to decide these questions, because Speech First had not identified the members on whose behalf it had filed the lawsuit, which both “creates serious problems with the record in this case” and “raises yet more problems with the organization’s standing.”
Thomas once again dissented from the court’s decision to deny review. He wrote that because so many schools now have similar bias response teams, the Supreme Court will eventually need to weigh in. “The Court’s refusal to intervene now leaves students subject to a ‘patchwork of First Amendment rights,’” he contended, “with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography.”
Alito did not join Thomas’s dissent, but he did indicate that he would have granted the group’s petition for review.
The justices will meet again for another private conference on Friday, March 7, with orders from that conference expected on Monday, March 10.
This post is also published on SCOTUSblog.
