The
U.S. Supreme Court will begin its November sitting by hearing oral arguments in a case challenging the constitutionality of Colorado's universal preschool program and a dispute asking the justices to settle a circuit split over whether defendants in civil lawsuits can seek summary judgment based on unpled affirmative defenses.
The justices will also consider two habeas corpus appeals that ask if prisoners can seek an early transfer of custody under the process and what constitutes a "new rule of constitutional law" enabling a prisoner to file a second or successive habeas petition.
Here, Law360 previews the week's oral arguments.
Prisoner Transfers
On Monday, the justices will hear arguments over a prisoner's ability to seek an early transfer of custody under the First Step Act through the habeas corpus process.
Texas prisoner William Maxwell has asked the high court
to overturn a Fifth Circuit decision finding he can't seek early transfer from federal prison to either a halfway house or home confinement through the habeas process.
Maxwell, who was convicted in 2014 of racketeering and fraud charges and sentenced to 20 years in prison, filed a habeas petition in 2022 claiming he had earned enough time credits from participating in recidivism reduction programs to qualify for early transfer under the First Step Act.
But a unanimous appellate panel affirmed in April 2025 a Texas federal judge's dismissal of Maxwell's suit based on the Fifth Circuit's "bright-line" rule barring habeas petitions unless a favorable ruling would "automatically" entitle the prisoner to early release. Maxwell could instead try to bring his claim in a civil rights suit under the Supreme Court's 1971 ruling in
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 
, the panel said.
Maxwell has contended the Fifth Circuit's ruling wrongly confines the habeas process to a single form of relief — early release — when the statute's text and history, as well as Supreme Court precedents, don't support that limitation.
Section 2241 of Title 28 of the U.S. Code allows prisoners to challenge their allegedly unlawful incarceration even if the remedy would only see them transferred to a lower level of custody, such as a halfway house or home confinement. Courts in early America often used the habeas process to grant prisoners' requests for release on bail, Maxwell said, and in 1973, in
Preiser v. Rodriguez , the Supreme Court held the process could be used by prisoners seeking to restore good-time credits.
If Maxwell is unable to bring his claims under the habeas process, he said it is unclear if he would have another avenue for relief. The Fifth Circuit's suggestion to bring a so-called Bivens claim would only allow Maxwell to seek monetary damages, not an early transfer of custody, and no court has recognized a Bivens claim for prisoners challenging their confinement based on statutory provisions, Maxwell argued.
Sandra Dinis, warden of the federal prison where Maxwell is incarcerated, has agreed that the Fifth Circuit's decision should be overturned, but for other reasons.
She argued that while the habeas process is the correct place for claims like Maxwell's, his specific case is barred because he didn't exhaust the First Step Act's administrative remedies before seeking relief in court. Dinis alternatively claimed that challenges to the
Federal Bureau of Prisons' refusal to grant a prisoner's transfer request are unreviewable by federal courts because the agency has broad discretion under federal law to choose where an individual will serve out their prison sentence.
But, she noted, that question hasn't been "widely ventilated" among the lower courts yet, so the Supreme Court should simply remand the case for further proceedings on that issue.
The justices could also take a third route, Dinis said: dismiss Maxwell's case as improvidently granted because he will be eligible for his requested transfer in January, meaning the appeal will likely become moot before the Supreme Court can issue a decision on the merits.
Meanwhile,
Cooper & Kirk PLLC partner Brian W. Barnes, whom the high court appointed to defend the Fifth Circuit's ruling, warned the justices against accepting Maxwell's expansive view of the habeas process. It would open the courthouse doors to prisoner claims that are already cognizable under other federal laws, such as Section 1983 of Title 42, he said. And it would contradict the purpose behind the habeas process, which is to shorten an individual's unlawful sentence.
Maxwell's transfer to a halfway house or home confinement wouldn't alter the length of his detention because federal prisons, halfway houses and home confinements are all controlled by the BOP and subject to similar restrictions, making them different from parole, which is overseen by probation officers and entitles an individual to many more freedoms, Barnes argued.
Maxwell's claim amounts to a challenge to the conditions of his confinement, Barnes said, and the Supreme Court has never found those judicable under the habeas process.
Davis Polk & Wardwell LLP partner Masha G. Hansford will argue for Maxwell; Kevin J. Barber, of the U.S. Solicitor General's Office, will argue for Dinis in favor of vacatur; and Cooper & Kirk PLLC partner Brian W. Barnes will argue in favor of affirming the Fifth Circuit's decision.
The case is Maxwell v. Dinis, case number
25-5930.
Affirmative Defenses
Also on Monday, the Supreme Court will consider whether defendants in civil lawsuits can seek summary judgment based on unpled affirmative defenses.
Jasmine Younge, a former district attorney's office aide in Fulton County, Georgia, has petitioned the justices to
reverse the Eleventh Circuit's holding that she is barred from bringing a pregnancy discrimination suit against her former employer under the Civil Rights Act because of a provision exempting the personal staff of elected officials from the act's protections.
Younge, who alleged she was wrongly fired from her deputy chief of staff position in 2019 just two weeks after announcing her pregnancy, isn't challenging the substance of the ruling, but instead has claimed it was based on an improperly raised affirmative defense.
In April 2025, a unanimous Eleventh Circuit
panel upheld a summary judgment ruling in favor of the district attorney's office based on the exemption argument. Even though the office had failed to raise the affirmative defense when it responded to Younge's 2020 lawsuit and never sought to add it later through an amendment, the defense could serve as the basis for summary judgment because it didn't prejudice Younge, the panel held in line with circuit precedent from 1988.
Four other circuits — the Third, Fourth, Eighth and Ninth — apply a rule similar to the Eleventh Circuit's, while the First, Sixth and Seventh circuits require an additional showing that undue delay or lack of diligence isn't the reason for the late-raised affirmative defense. Only the Second, Tenth and
District of Columbia circuits bar summary judgments based on unpled affirmative defenses.
Younge
has argued the Eleventh Circuit's precedent violates several Federal Rule of Civil Procedure sections that lay out a strict timeline for pleading affirmative defenses or requirements for adding them through amendments.
Rule 8(c)(1), for example, she said, requires defendants to "state any avoidance or affirmative defense" in their response to a complaint, and Rule 12(b) reiterates that "every defense to a claim for relief in any pleading must be asserted in the responsive pleading."
Other rules, such as Rule 16, establish deadlines and requirements for amending pleadings, Younge added. The rules' use of words like "any," "every" and "must" show that strict compliance is required, and a defendant's noncompliance results in waiver of those defenses, she argued.
Otherwise, plaintiffs and defendants would be held to "fundamentally" different pleading standards, Younge said. While plaintiffs would be bound by the federal rules' strict requirements, defendants would be incentivized to circumvent them, especially because affirmative defenses based on legal arguments, not factual disputes, rarely present a possibility of prejudice, she argued.
The district attorney's office
has countered that the federal rules' lack of an express mention of consequences for failing to follow the affirmative defense pleading requirements shows those defenses aren't automatically waived due to noncompliance.
Rather, courts must assess late-raised defenses through a prejudice analysis like the one used by the Eleventh Circuit, the office said. That reading of the federal rules is supported by the Supreme Court's repeated holdings that a prejudice analysis is the proper way to decide how to deal with noncompliance of statutes that use "must" or "shall," but don't specify a consequence, it argued.
Additionally, the office said that ignoring a defense because of a procedural mistake would be legally erroneous and "plainly unjust." Litigants often raise new legal arguments at summary judgment or even on appeal, and courts have the discretion to consider them, the office said. The Eleventh Circuit's precedent also mirrors the goal of the federal rules, which was to put an end to judges tossing cases based on "pointlessly harsh" technicalities, the office argued.
Eric Schnapper, a University of Washington School of Law professor, will argue for Younge, while
Jones Day partner Stephen J. Petrany will argue for the Fulton County District Attorney's Office.
The case is Younge v. Fulton County District Attorney's Office, case number
25-352.
Religious Exercise
On Tuesday, the justices will consider two Catholic schools' challenge to Colorado's universal preschool program's requirement that they accept students from LGBTQ+ families to receive state funding.
The Archdiocese of Denver and two of its parishes have asked the high court to
overturn a Tenth Circuit decision ruling Colorado's universal preschool program can require Catholic Church-run schools to accept students from LGBTQ+ families as a condition of receiving state funding.
St. Mary Catholic Parish in Littleton, Colorado, and St. Bernadette Catholic Parish in Lakewood, Colorado, claimed the program violates the First Amendment's free exercise clause by denying their schools religious exemptions to its equal opportunity mandate while allowing secular schools to give preferential treatment to students based on other protected class statuses.
A unanimous Tenth Circuit panel found in September 2025 that the program's equal opportunity mandate is constitutional under the Supreme Court's 1990 decision in
Employment Division v. Smith , which held that facially neutral and generally applicable laws don't violate the free exercise clause.
Colorado's mandate prohibits participating schools from denying preschool services based on a student's race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability. But the state has created exceptions in its student-to-school matching software to allow Head Start programs and certain other preschools to express preferences for low-income students and students with disabilities.
The archdiocese and its parishes argue the Tenth Circuit applied the wrong Supreme Court precedent in this case, claiming it instead should've analyzed the universal preschool program's mandate under the 2020
Carson v. Makin decision, which
struck down a Maine tuition assistance program that only provided state funds to students who attended nonsectarian schools.
The ruling established that states violate the free exercise clause when they deny benefits based on a recipient's religious exercise, which Colorado is allegedly doing in this case by refusing to allow the Catholic preschools to give preference to families who agree with the church's teachings on gender identity and sexual orientation.
In order to participate in Colorado's program, the parishes claimed their schools are forced to abandon their religious practices and beliefs to receive government benefits. Colorado cannot establish a compelling reason for that requirement, they argued, and even if it could, its grant of exceptions for other schools would undermine it.
The federal government, which will argue in support of the archdiocese and its parishes, echoed the challengers' arguments, saying allowing certain schools to create preferences for low-income students and students with disabilities is the "antithesis" of general applicability and thus requires courts to analyze Colorado's law under Carson's stricter standard of review.
Other recent Supreme Court rulings also show that Smith's analysis doesn't apply to cases involving public benefits, the government argued. The 1990 Smith decision is limited to generally applicable criminal laws, the government contended, while disputes involving the conditions of public benefits are subject to heightened scrutiny.
Meanwhile, Lisa Roy, executive director of the Colorado Department of Early Childhood, has claimed nothing in the universal preschool program's equal opportunity mandate requires faith-based preschools to abandon their practices and beliefs.
The archdiocese and its parishes are free to provide faith-based schooling as long as they don't discriminate against students based on their or their families' gender identity or sexual orientation, she said. The department allows certain schools to set preferences for low-income students and students with disabilities because those preferences don't deny enrollment opportunities to other students based on a protected class status, and they provide specialized services to historically disadvantaged classes, Roy argued.
Nicholas R. Reaves, senior counsel at the Becket Fund for Religious Liberty, will argue for the archdiocese and its parishes; Sarah M. Harris, of the U.S. Solicitor General's Office, will argue for the government as amicus in favor of the Archdiocese and its parishes; and Helen Norton, of the Colorado Department of Law, will argue for Roy.
The case is St. Mary Catholic Parish et al. v. Roy et al., case number
25-581.
Successive Habeas Petitions
On Wednesday, the Supreme Court will hear arguments over what constitutes a "new constitutional rule of law" that entitles a prisoner to file a second or successive habeas petition.
Eric Guerrero, director of the
Texas Department of Criminal Justice, has petitioned the justices to
reverse the Fifth Circuit's decision to allow prisoner Dexter Johnson to challenge his death sentence based on new diagnostic standards for determining whether someone has an intellectual disability.
Johnson, who was sentenced to death for kidnapping, raping and murdering a 23-year-old woman in 2006, has claimed the changed standards outlined in the
American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders amount to a "new rule of constitutional law" that makes him eligible to file a second or successive habeas corpus petition under Section 2244(b)(2) of the Antiterrorism and Effective Death Penalty Act.
A unanimous Fifth Circuit panel affirmed in July 2025 a federal judge's order denying Guerrero's attempt to dismiss Johnson's second habeas petition, holding that Section 2244(b)(2)'s exception for second or successive petitions asserting claims based on new rules of constitutional law that were previously unavailable extends to claims that previously lacked "some possibility of merit."
Although Johnson's petition raises a claim that he is ineligible for the death penalty due to intellectual disability under the Supreme Court's 2002 decision in
Atkins v. Virginia — a ruling issued four years before his crime — the claim had been previously unavailable to him until the diagnostic standards were changed in 2013, the panel said.
However, Guerrero has claimed the Fifth Circuit misinterpreted the plain text and purpose behind Section 2244(b)(2), arguing that whether a claim based on a constitutional rule was available only depends on when the Supreme Court changed the rule in relation to a defendant's crime.
Since Atkins was released years before Johnson even committed his crime, he cannot plausibly argue the legal rules for determining death penalty eligibility have changed since his conviction or his first attempt for relief, which he launched in 2011 and lost in 2015. A rule is available to a defendant even if it is not useful, Guerrero said.
At a minimum, Guerrero added, Johnson raises a factual claim that is subject to stricter requirements under Section 2244(b)(2)(B), which allows prisoners to bring a second or successive habeas petition only if the new facts couldn't have been previously discovered and could convince a jury to acquit the individual. Johnson's claim meets neither of those conditions, Guerrero argued.
The federal government, which will argue in favor of Guerrero, added that the Fifth Circuit's ruling would allow prisoners to bring virtually any claim as long as they can prove it previously lacked merit. It's also unclear whether Johnson's claim would've been impossible to raise in his first habeas petition, the government said, because similar arguments seeking to expand the range of prisoners covered by Atkins had been percolating for years before 2011.
Johnson, on the other hand, has claimed a certain rule cannot be deemed "available" because it merely exists. Courts often refer to remedies and arguments "available" to parties within the particular context of their case, not in the abstract, he said.
Before the diagnostic standards were changed, Johnson's IQ score alone didn't qualify him as intellectually disabled. But now that the importance of IQ scores has been downplayed and medical practitioners are instructed to consider other signs of intellectual disability, like a person's intellectual and adaptive characteristics, he qualifies for Atkins' protection, Johnson said.
In more recent cases, the Supreme Court has emphasized that the clinical definitions of intellectual disability and the medical community's diagnostic framework are fundamental to Atkins claims, he added.
Johnson additionally countered Guerrero's claim that he was raising a new factual issue, noting his IQ score and characteristics have never changed. Only the framework for assessing them has, he said.
Texas Solicitor General William R. Peterson will argue for Guerrero; Emily M. Ferguson, of the U.S. Solicitor General's Office, will argue for the federal government as amicus in favor of Guerrero; and Jeremy Schepers, of the Office of the Federal Public Defender, will argue for Johnson.
The case is Guerrero v. Johnson, case number
25-1003.
--Editing by Jay Jackson Jr. and Lakshna Mehta.
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