WASHINGTON — Two very different questions will dominate the middle of the Supreme Court’s November sitting: whether a Catholic preschool may take part in Colorado’s publicly funded universal preschool programme while declining to follow its admissions rules, and whether a Texas death-row prisoner may return to federal court with an intellectual-disability claim he did not raise in his first habeas petition. Neither case has been decided. Both are heard on argument only at this stage, and the justices’ questions in the courtroom are not votes, predictions, or a preview of the outcome.
The sitting opened on Monday 2 November with the Maxwell v. Dinis and Younge cases, which are covered in a separate report, before the Court turned to the two cases at the centre of this article.
The pairing is striking because the two disputes seem to have almost nothing in common. One concerns four-year-olds, classrooms, and the conditions a state may place on money it offers to parents. The other concerns a man sentenced to death, a diagnosis made years after his trial, and a federal statute designed to make convictions final. Yet both turn on a question that runs through much of the Court’s work this term: who gets through the door, and on what terms. In St. Mary, the door is a state programme open, in the state’s words, to every eligible child. In Guerrero, the door is a second federal habeas petition, which Congress deliberately made very hard to open.
That shared shape is why the two hearings matter beyond the parties named in them. A ruling in the preschool case could change how states write the rules for any programme that pays private providers, religious or otherwise, to deliver a public service. A ruling in the death-row case could change how federal courts treat claims that become plausible only when science, medicine, or diagnosis moves on — and how much finality a decades-old judgment is entitled to when it does. Decisions in both cases are expected before the Court’s term ends in the summer of 2027.
St. Mary Catholic Parish v. Roy: Colorado’s Universal Preschool and the Admissions Rule
The first of the two hearings, on Tuesday 3 November, is St. Mary Catholic Parish v. Roy (No. 25-581). It arrives on the same day as the 2026 midterm elections, which guarantees it a crowded news day but does not change the legal question. The challengers are two parishes in the Archdiocese of Denver — St. Mary in Littleton and St. Bernadette in Lakewood — together with the Archdiocese and Catholic parents. They are represented by the Becket Fund for Religious Liberty. Colorado’s side defends a programme the state presents as genuinely universal.
Colorado’s Universal Preschool Program grew out of a ballot measure approved by voters in 2020 and began operating in 2023. Families choose a provider, public or private, including faith-based schools, and the state pays roughly 6,000 dollars per child for a part-time place, covering about fifteen hours a week. Reporting on the programme puts enrolment at more than 40,000 four-year-olds across more than 2,000 sites in a recent school year. The scale is part of the argument on both sides: the state says a programme this large must have one set of admissions rules; the parishes say a programme this large cannot fairly call itself universal while leaving their schools out.
The rule at issue requires every participating provider to give each eligible child an equal opportunity to enrol and receive preschool services regardless of, among other things, race, religious affiliation, sexual orientation, gender identity, housing status, income level, or disability. The Catholic preschools say they cannot sign that commitment as written, because their admissions approach gives preference to families who share or support Catholic teaching, including teaching on marriage and sexuality. In their account, enrolling children of LGBTQ parents, or treating children in ways inconsistent with Catholic teaching on sex and gender, would require them to act against their faith. Colorado disputes that characterisation. The state says religious providers are welcome in the programme on the same terms as everyone else, and that the parishes are not excluded because they are Catholic but because they will not accept the same admissions condition that applies to every provider.
The lower courts sided with Colorado. A federal district court ruled for the state in June 2024, and the Tenth Circuit affirmed in September 2025, applying the Supreme Court’s 1990 decision in Employment Division v. Smith. Under Smith, a law that is neutral and generally applicable does not violate the Free Exercise Clause merely because it burdens religious practice. The Tenth Circuit treated the preschool programme’s conditions as neutral rules of that kind, applying to all providers alike. The Supreme Court agreed to hear the case on 20 April 2026, but it declined to take up a request to overrule Smith itself. That choice narrows the fight: the case will test how Smith works, not whether Smith survives.
The two questions the Court did accept are technical, but their answers will be practical. The first asks whether proving that a law lacks general applicability under Smith requires showing either unfettered government discretion or categorical exemptions for identical secular conduct. In plain language, the parishes argue that Colorado’s programme is not truly general because it allows some providers to specialise — for example, in serving children with disabilities or from low-income families — while refusing any accommodation for their religious admissions approach. If the Court agrees that uneven exemptions can defeat general applicability, the state’s rule would face a far tougher constitutional test. The second question asks whether Carson v. Makin, the Court’s 2022 decision barring Maine from excluding religious schools from a tuition programme, displaces the Smith rule only when the government explicitly excludes religious people and institutions. Colorado’s answer, in effect, is that it has done no such thing: it has not barred Catholic schools, it has set a condition, and faith-based providers — including, as reporting has noted, more than 40 faith-based providers and six Catholic Charities preschools when the programme began — have taken part.
The human side of the dispute is visible in the families who say they have paid the difference themselves. Parents involved in the case have told local reporters they estimate they missed out on roughly 24,000 dollars in one family’s case and roughly 18,000 dollars in another’s, after choosing Catholic preschools outside the state programme. Those figures are the families’ own estimates, reported in news coverage, not findings by a court, and they illustrate what is at stake for parents who want a faith-based place but cannot, on the parishes’ account, both keep that place and claim the state benefit. Supporters of the parishes, including the Trump administration through the Solicitor General, argue that the state is penalising families for choosing a religious education. Supporters of Colorado, including civil-rights groups that have filed briefs for the state, argue that public money must not come with a licence to turn families away because of who they are, and that an exemption here would invite similar claims wherever public funds flow to private providers.
Colorado’s recent history in the Supreme Court gives the case an extra layer of attention. Since 2018, the Court has sided with a Colorado cake baker, a website designer, and a Christian counsellor in disputes that pitted religious or free-speech claims against state antidiscrimination rules. Commentators on both sides therefore read St. Mary as the next chapter in a long Colorado story, though the legal issue here is different: this is not a business refusing a customer, but a school seeking a place in a state-funded programme on its own admissions terms. A ruling for the parishes would not close Colorado’s programme, but it could require the state to offer religious providers an exemption or redesign its conditions. A ruling for Colorado would confirm that states may attach uniform nondiscrimination conditions to participation in programmes of this kind, at least where the Court finds the conditions neutral and generally applicable.
The Supreme Court Death Row Habeas Question: What Counts as Previously Unavailable?
The second hearing, on Wednesday 4 November, is Guerrero v. Johnson (No. 25-1003). The petitioner is Eric Guerrero, director of the Texas Department of Criminal Justice, Correctional Institutions Division; the respondent is Dexter Johnson, a Texas prisoner sentenced to death. The case does not involve any claim that Johnson is innocent of the crimes for which he was sentenced, a point both sides’ framing makes clear. It is about the rules for a second federal challenge, and about whether a claim that rests on an old constitutional rule can count as new.
The underlying crime dates to Father’s Day 2006, when Johnson and accomplices abducted Maria Aparece, known to her family as Sally, and her boyfriend Huy Ngo, and killed them both. Johnson was convicted of capital murder and sentenced to death by a Harris County jury. What the Supreme Court must decide is not whether that sentence was deserved in the abstract, but whether Johnson may now pursue a claim that he is intellectually disabled and therefore, under the Court’s 2002 decision in Atkins v. Virginia, constitutionally ineligible for execution. Atkins held that the Eighth Amendment prohibits executing people with intellectual disabilities. The dispute is over timing and procedure, not over whether Atkins itself remains good law.
At Johnson’s trial, expert evidence put his IQ roughly between 74 and 88, above the threshold of about 70 that was then widely treated as the line for intellectual disability. He filed state and federal habeas petitions, and his initial federal petition was denied. The diagnostic landscape then changed. In 2013, the American Psychiatric Association published the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5, which moved away from a rigid IQ cutoff and placed greater weight on adaptive functioning — how a person manages everyday life, communication, and social responsibility. In April 2019, an evaluation recorded a full-scale IQ score of 70 for Johnson, and experts concluded under DSM-5 criteria that he met the criteria for intellectual disability. Johnson raised an Atkins claim for the first time that year, shortly before a scheduled execution date in May 2019, and a federal district court stayed the execution. A Texas court dismissed his successive state application as an abuse of the writ without reaching its merits.
Federal law then took over the argument. The Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA, bars a state prisoner from filing a second federal habeas application unless the claim fits one of two narrow exceptions. The first, in section 2244(b)(2)(A), allows a claim that relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable. The second, in section 2244(b)(2)(B), allows a claim based on new facts, but only if the facts are strong enough to show that no reasonable fact-finder would have found the applicant guilty of the underlying offence. Johnson’s claim is brought under the first exception, and the question presented asks whether a claim relies on a new, retroactive, previously unavailable rule when the petitioner could have asserted a claim based on that rule in an earlier federal petition.
Texas argues that the answer is no, and that the chronology settles it. Atkins was decided in 2002, before Johnson committed the murders, before his conviction became final, and before he filed his first federal habeas petition. What changed after that, Texas says, was not the law but a factual predicate: a new diagnostic manual and a new evaluation under it. A claim built on new facts, the state argues, must meet the second exception, which Johnson’s claim cannot meet because evidence about intellectual disability goes to eligibility for execution, not to whether a jury would have found him guilty. On that reading, the Fifth Circuit should not have allowed the claim to proceed, and the Supreme Court should reverse.
Johnson argues that the chronology proves the opposite point. His position, as set out in his Supreme Court brief, is that a rule can exist on paper yet have no possibility of success for a particular prisoner until the diagnostic framework catches up. Under the regime in place when he filed his first petition, his IQ scores were treated as dispositive, and even his own trial expert testified that he was not intellectually disabled. The claim only became viable, he argues, once DSM-5 reframed the inquiry and a 2019 evaluation applied it to him. In that sense, he says, the Atkins rule was previously unavailable to him, even though Atkins itself was decided years earlier. A Fifth Circuit panel accepted that argument, and the full Fifth Circuit declined further review by a vote of 9 to 7 in January 2026, with a dissent arguing that decades of delay impose heavy costs on victims’ families and undermine the finality AEDPA was written to protect. The Supreme Court granted review on 15 June 2026.
The stakes on both sides are stated in unusually personal terms. The family of Maria Aparece, through an amicus brief, has described two decades without finality since the 2006 murders, and supporters of a strict reading of AEDPA argue that finality is itself a value the law protects — for families, for the state’s interest in enforcing judgments, and for public confidence that sentences will be carried out. Critics of a strict reading argue that intellectual disability is a categorical constitutional bar to execution, and that a prisoner who can now show such a disability should not be executed because of a procedural timing rule. Both arguments will be tested at argument, and neither has yet prevailed. There is also a wider doctrinal prize: lower courts have disagreed about when a claim becomes futile, and about how to treat scientific change under AEDPA, so a Supreme Court ruling could settle how future prisoners with evolving medical or scientific evidence may — or may not — seek a second round of federal review.
What the Two Hearings Share, and What Happens Next
Read together, the two hearings show the Court working at the boundary between substance and procedure. In St. Mary, the substantive values are religious liberty and equal access, but the deciding question may be procedural in form: is Colorado’s rule general enough to survive Smith, or do its exemptions unravel that generality? In Guerrero, the substantive value is the Eighth Amendment’s bar on executing people with intellectual disabilities, but the deciding question is also procedural in form: does AEDPA’s gate open for a claim whose legal foundation is old but whose practical viability is new? In both cases, the Court’s answer will be written as a rule for future litigants, not merely as a result for the parties before it.
That is why the timing matters. Neither case will be resolved from the bench on the day of argument. The justices will hear the advocates, test the weakest points of each side — a tough question to one advocate is not a vote against that side — and then deliberate in private. Opinions are expected by the end of the term, in the summer of 2027, and until then the status quo stands: Colorado’s programme continues to operate under its current rules, and Johnson remains on death row while his successive habeas claim is pending. Readers should also keep the limits of argument coverage in mind. Briefs, lower-court opinions, and the questions asked in court describe what the parties argue and what the justices are probing; they do not settle what the Court will hold.
For the Court itself, the week is an early test of October Term 2026, its second argument month. The sitting began with a different pair of cases and moves, across the week, from prison procedure and pleading rules to religious liberty and capital habeas law. The November docket, with 34 cases granted so far this term according to Ballotpedia’s 2 November newsletter, offers an early snapshot of the term’s shape — and the two cases at the centre of this article are among its most consequential, because each asks the Court to decide not only who wins, but who gets to be heard at all.
Sources
USN reviewed reporting from multiple outlets for this story. Read more from Ballotpedia News [LINK: https://news.ballotpedia.org/2026/11/02/robe-gavel-scotus-begins-november-2026-sitting/], Reason [LINK: https://reason.com/volokh/2026/11/02/supreme-court-to-consider-successive-habeas-claim-in-capital-case-twenty-years-after-the-murder/] and USA Today [LINK: https://www.usatoday.com/story/news/politics/2026/11/01/supreme-court-colorado-lgbtq-protections-religious-rights/92498567007/].