Legal Docket: The last word

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NICK EICHER, HOST: It’s The World and Everything in It for this 12th day of January, 2026. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time now for Legal Docket.

Today, two cases that go to the heart of immigration and civil justice—and they matter well beyond the courtroom. What the court decides will shape asylum claims, affect the work of advocacy groups, and test the authority of a government elected on promises of tighter borders and enforcement.

We begin with oral arguments.

EICHER: Case one is Urias-Orellana v. Bondi.

It’s about asylum—and about how much power federal judges should have to second-guess immigration courts.

Here’s how the attorney for the asylum seeker framed the case, Nicholas Rosellini:

ROSELLINI: Deciding whether undisputed facts qualify as persecution under the law involves legal interpretation, not fact finding.

REICHARD: That distinction is the fulcrum here. We usually think of fact-finding as the job of juries or trial judges and legal interpretation as the work of higher courts.

But in this case, the asylum seeker wants federal judges to step in and decide whether the facts already found by immigration courts rise to the legal level of “persecution.” If they do, he stays.

EICHER: Here’s the background. Douglas Urias-Orellana left El Salvador with his wife and child and entered the US illegally in 2021.

Back home, a hitman for a drug trafficker had shot two of his half-brothers and threatened to kill the rest of the family. Urias-Orellana moved within El Salvador for a time, but eventually fled north and applied for asylum.

REICHARD: The immigration judge believed his account—but still denied asylum, ruling that the threats did not meet the legal standard for persecution.

That standard is high. Courts have said persecution must be severe—more than threats alone—and tied to membership in a protected group, with the home government unable or unwilling to stop it.

EICHER: The Justice Department says that judgment call belongs to the immigration system. It argues courts ought to defer to the Board of Immigration Appeals, which heard the case and weighed the evidence firsthand.

But Urias-Orellana’s lawyer says this is not just about facts—it’s about how the law defines persecution, and who gets to apply that definition.

Here’s Rosellini again:

ROSELLINI: And courts have repeatedly established auxiliary legal principles on things like sexual violence, religious persecution, economic deprivation, and beyond. But courts did not establish those principles by pondering the term "persecution" in the abstract. They interpreted the law by applying the persecution standard to particular sets of undisputed facts.

Rosellini pointing out there is no way to draw a principled line between fact and law here.

REICHARD: The government disagrees. Here’s Assistant to the Solicitor General Joshua Dos Santos. (Now you’ll hear him use the term “sicario.” He means the hitman.)

DOS SANTOS: Petitioner appears to have been fine when he moved away from the hometown and he lived for years in peace in other parts of El Salvador. Then --then Petitioner talks about the threats, but, on the other hand, the threats demanded money. So whether you infer from that was it just intimidation, were they even connected with the sicario, I mean, these are all questions of the kind that go to juries. The juries draw inferences that can cut in different directions.

EICHER: Justice Sonia Sotomayor pushed back on that, referencing another case:

SOTOMAYOR: …the question was whether those undisputed facts met the standard of persecution ‘because of’ political opinion. So I don't see how that's not a mixed question of law and fact …

Chief Justice John Roberts seemed to favor the opposite view.

ROBERTS: The sort of findings that we typically leave to a district court or another fact finder involving credibility, weighing of facts, and all that sort of thing, to — to reach a particular determination, it seems to me a prototypical case for the B-I-A.

And Justice Elena Kagan seemed to agree with the Chief, while bemoaning the work load involved should the asylum seeker here win the case:

KAGAN: Now what’s going to happen in this case is we're going to have to look at all this evidence, all these facts, and decide whether these threats were indeed that level of menacing. And that sounds like really weighing evidence to me. That sounds really factual.

EICHER: The asylum seeker’s lawyer summed it up this way, essentially sending up an SOS to please clarify the path:

ROSELLINI: The case law as it is now is a muddle, so I'm not going to pretend that there is some consensus going in our favor, but we don’t need to show that.

So the question for the justices is not whether this man and his family can remain in the US, it’s how much authority federal judges have to second-guess immigration courts.

And make no mistake, there is a political angle here too. Half-a-dozen advocacy groups filed friend of the court briefs on this one, and each one of them is actively involved in pushing the courts to override the executive branch on immigration.

REICHARD: This last case today also turns on who gets the last word. But this time it’s not immigration courts and federal judges, it’s state legislatures versus the rules that govern federal courts—and the answer will shape who gets into court at all.

EICHER: For patients who believe they were harmed by medical negligence, the stakes are obvious. For doctors and hospitals, it’s the cost of defending lawsuits. And for the states that have tort reform to limit malpractice claims, this case is a test of how far tort reform can reach.

REICHARD: The case is Berk v Choy.

Harold Berk is a Florida man who was staying in his second home in Delaware when he suffered a foot and ankle injury.

He went to the emergency room and says he received negligent medical treatment that made matters worse. He filed a medical malpractice suit in federal court under what is called “diversity jurisdiction.” That’s a federal rule that lets you file a case in federal court when the parties are from different states and enough money is at stake.

EICHER: But Delaware requires something extra in medical malpractice cases: an affidavit of merit. That’s a sworn statement from a medical expert that certifies the claim is reasonable. More than half the states have that rule.

REICHARD: Berk’s orthopedist declined to make that affidavit, so Berk just submitted his medical records instead.

But in Delaware? No affidavit, no case.

So the federal district court dismissed Berk’s lawsuit.

EICHER: And it did so on the basis that the affidavit rule is considered substantive law. That’s different from procedural law, things like how to file a lawsuit and when. Substantive law is about what you’re legally entitled to, like the standard of medical care.

And that difference matters here, because substantive state law applies in federal court.

REICHARD: Berk wants that affidavit requirement gone. Delaware insists on it. Berk’s lawyer, Andrew Tutt:

TUTT: That requirement conflicts with more than a half dozen Federal Rules of Civil Procedure. It conflicts with Rules 8 and 9, which set forth what a plaintiff must do to state a claim in federal court, and it conflicts with Rule 11, which bars verification and affidavit requirements unless a federal rule or statute provides otherwise.

Tutt went even further. The doctors call Delaware’s rule substantive …

TUTT: But Delaware's law is procedural from tip to tail. It designates when a complaint can be docketed, what it must say, and when the defendant must file a responsive pleading. It doesn't define malpractice or alter any substantive standard of care….This is a procedural law.

EICHER: The medical providers disagree, obviously. They want the affidavit rule to stay—because it is an obstacle to filing a lawsuit against them. The providers’ lawyer is Frederick Yarger. He says the petitioner, Berk, the injured man, is taking an extreme position:

YARGER: That a federal court must ignore the entirety of a state statute if any part of it might conflict with a federal rule in some case. This court has rejected that approach, which is why Petitioner in the briefing, effectively concedes that to prevail, he has to convince the Court to overrule at least three of its decisions.

In this complex case there was a light moment, if you can call it that: Justice Samuel Alito invoked a famous idea from physics:

ALITO: Schrodinger’s cat ……

For an explanation, we turn to a movie from 2013, the movie Coherence, in which actor Hugo Armstrong plays a character who explains the concept well.

KEVIN: It's a thought experiment. There's a, there's a cat in a box that has, like a 50-50 chance of living, because there's a vial of poison that's also in the box. So regular physics would say that it's one or the other, that the cat is either alive or dead. But quantum physics says that both realities exist simultaneously and it's only when you open the box that they collapse into a single event.

So with that background, you will now understand constitutional law that much better.

ALITO: I don't know that we've ever invoked Schrödinger's cat in — (Thomas laughing) — our analysis of statutes or rules, but what are you saying? Is the affidavit of merit a pleading for purposes? We've got Rule 8 and Rule 11. Is it a pleading for one and not a pleading for the other?

REICHARD: So it’s up to the justices to open up that box and see if the cat, or pleading, or affidavit, is alive or dead.

If the court upholds the affidavit requirement, then states can impose higher pleading requirements on federal courts and just call them something else. That raises costs for plaintiffs, but doctors argue it smokes out meritless claims.

So here, as in that asylum case, a seemingly simple question: Who decides the rules and who must defer to whom?

EICHER: Before we go, one decision—the Supreme Court’s first opinion of the term in an argued case. It’s Bowe v. United States.

Michael Bowe is serving a 24-year federal prison sentence, including ten years for using a gun in what the law calls a “crime of violence.”

Later court rulings narrowed the definition of “crime of violence,” and Bowe asked to have his sentence reduced.

REICHARD: But lower courts said no to that, pointing to a rule that generally blocks repeat challenges to prison sentences.

But that rule applies to state prisoners, not federal ones.

EICHER: In a 5–4 decision, the Supreme Court agreed with Bowe.

Chief Justice Roberts and Justice Brett Kavanaugh joining the Court’s liberals to say the state-prisoner rule does not apply to federal inmates—and if Congress wants to change it, it'll have to that itself.

REICHARD:And that’s this week’s Legal Docket.

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