Chief justice’s legacy, emergency docket, president’s power likely themes of new SCOTUS term
Three themes are likely to dominate the new U.S. Supreme Court term, which is set to begin Oct. 6, the first Monday of the month. (Despite the budgetary shutdown of the federal government, the court is expected to operate as normal on its fees and reserves—at least for now.)
One theme involves Chief Justice John Roberts, who on Sept. 29 passed the 20-year mark in the job as he continues to try to steer his court and the federal judiciary through the stormy waters of low public esteem and challenges posed by an aggressive presidential administration.
“The chief is now—the fourth-longest serving chief justice in American history; he’s now served longer than Chief Justice [William H.] Rehnquist did,” Kannon K. Shanmugam, a partner at Paul, Weiss, and a frequent advocate before the court, said at a Federalist Society event this week recognizing the anniversary. “This chief’s legacy will depend on how much longer he serves as chief and where the court goes.”
Another theme is the emergency docket, where litigants seek some form of fast-track relief, which continues to grow and at times dominates the attention of the court.
“We’re getting the legal equivalent of fast food, with a line for the drive-thru,” University of Chicago law professor Samuel L. Bray says regarding the emergency docket, which is also known as the shadow docket, the interim docket and other names.
The third theme involves President Donald Trump and his administration, which in his second term have cast a shadow over the court even more than in his first.
One question “that is looming over this term is … whether this court is really a rubber stamp for this administration or not,” said Gregory G. Garre, a partner at Latham & Watkins and a former U.S. solicitor general under President George W. Bush.
“Certainly, this administration has fared well on various emergency rulings over the course of the summer,” Garre said at a preview last week sponsored by the ABA and American University’s Washington College of Law. But the procedural posture and other factors about those cases may not translate into victories on the merits for the president, he said.
“Ultimately, this term is going to tell us a lot about the relationship between this court and President Trump’s administration,” Garre said.
Justices to weigh Trump tariffs and agency removals
Some major Trump administration cases have been added to the docket in recent weeks and set for oral argument early in the new term.
The biggest one involves the challenge to the president’s aggressive tariffs on overseas goods.
In Learning Resources Inc. v. Trump (consolidated with Trump v. V.O.S. Selections Inc.), the justices agreed to take up whether the International Emergency Economic Powers Act authorizes many of the tariffs Trump has imposed. A federal appeals court struck down the tariffs on the V.O.S. Selections case. The Learning Resources case was not as far along, but the justices decided to add it to the mix for the Nov. 5 argument.
“It’s likely to be one of the major separation of powers-executive branch authority cases that the court will hear,” Roman Martinez, another partner at Latham & Watkins, said at a Georgetown University Law Center term preview.
That theme will continue with Trump v. Slaughter, a case about whether the president may dismiss the leaders of independent federal agencies.
The court on Sept. 22 tentatively allowed Trump to fire Rebecca Slaughter, a member of the Federal Trade Commission. The court said it would decide whether the legal protections against removal for members of the FTC violate the separation of powers, and whether a key 1935 precedent, Humphrey’s Executor v. United States, should be overruled. That decision held that Congress may create independent, multi-member federal agencies whose leaders may only be removed “for cause.”
The court has narrowed Humphrey’s Executor in recent years and many legal analysts believe the justices are ready to overrule it. The court treated the Trump administration’s request for a stay of the district court ruling as a petition for certiorari, which it granted and signaled the case would be argued sometime in December.
And on Oct. 1, the court said it would hear arguments in Trump v. Cook, another blockbuster case from the emergency docket, over President Trump’s effort to dismiss for cause Federal Reserve Board member Lisa Cook.
The court signaled this past spring, in a short emergency docket opinion, that it views the Fed as different than other independent federal agencies, calling it a “uniquely structured, quasi-private entity.”
After a federal district court blocked the removal of Cook, the Trump administration went to the high court seeking a stay of the injunction, but only after a meeting of the Fed had occurred with Cook’s participation. This week, the court said it would defer a decision on the stay application pending oral arguments to be heard in January. That means Cook will keep her job, at least until then.
“I think there is a recognition both by the court and perhaps the solicitor general’s office that these issues have potentially immediate implications on the economy and the markets,” Deepak Gupta, the founding principal of Gupta Wessler, who has represented another federal agency official who was ousted by Trump, said at Georgetown’s preview (before the court’s decision to hear arguments).
As if that weren’t enough, the Trump administration also just asked the court to take up the constitutionality of the president’s birthright citizenship executive order. That was the underlying issue last term in Trump v. CASA Inc., in which the justices sharply limited the availability of federal district judges to issue nationwide injunctions broadly blocking policies beyond the litigants before the court. Many analysts expect that the justices will grant the request and take up the merits of the birthright citizenship order.
A few non-Trump cases on docket
The merits docket has several other major issues that the justices will hear this term.
In its October session, the court will hear Chiles v. Salazar, about whether a Colorado law that bars certain conversations between counselors and their clients is a permissible regulation of professional medical conduct or an infringement of free speech that violates the First Amendment. The case relates to what is sometimes called “conversion therapy,” though the challengers say that is a loaded term that covers more than what the state suggests.
And later this term, the court will consider the constitutionality of state laws that bar transgender athletes from participating in girls’ and women’s athletics. In West Virginia v. B.P.J., the justices will weigh a lower court ruling that such a state law violates the 14th Amendment’s equal protection clause or Title IX of the Education Amendments of 1972, the federal statute barring sex discrimination in federally funded educational programs. (A companion case from Idaho, Little v. Hecox, presents only the equal-protection question.)
The cases are considered a continuation of the debate the justices engaged in when they ruled last term, in United States v. Skrmetti, that a state could prohibit certain gender-affirming medical treatments for transgender minors.
The court may “conclude that laws like West Virginia’s do not classify on the basis of transgender status in the same way that it somehow concluded in Skrmetti this past summer that transgender healthcare bans are neutral on gender identity,” Carlos A. Ball, a professor at Rutgers Law School, said at a preview sponsored by the American Constitution Society. “That would be entirely illogical, in my view, because the evidence is overwhelming that the purpose and effect of the West Virginia statute is to exclude transgender girls and women [from] female sports.”
Even those high-profile merits cases may not steal much of the spotlight from Trump administration matters that make their way to the court either on the emergency or merits dockets.
Stephanie Barclay, a Georgetown law professor, said at the Federalist Society event that despite the recent string of emergency docket victories for Trump, the court has rejected the administration in a few matters.
“It hasn’t been a blank check” for Trump, she said.
Jennifer Nou, a University of Chicago law professor, says that the justices are concerned about the institutional reputation of the court, and to maintain it, “the court is likely going to split the baby in some ways when it comes to wins for the Trump administration.”
“It doesn’t seem like it quite yet, but some of the merits cases that are percolating might provide some opportunities for that,” she says. “Although I do think that the net result is going to be an increase in the institutional power of the president.”
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