SCOTUS Term 25-26

[Aardvark86]

So, as we enter the dog days of August, we're now about two months out from the beginning of the new term. Setting this up in advance as a term discussion thread, given that this place doesn't seem to proliferate threads like the weeds in my back yard.

As of today, there are 32 cases on the active argument docket (with more sure to be added following the long conference at the end of the summer). That, of course, is aside from all of the emergency docket stuff floating around relating to federal employee terminations, grant suspensions, ICE, and the like. For those such as myself nerdy enough to follow this stuff, here are a few of the higher profile cases to be argued so far. So far, it looks like some big themes around elections law and sexuality, though I'm sure we'll start seeing some post-Chevron stuff emerge, and that some of those emergency docket issues will surely get to the point where the court will have to tackle their substantive merits rather than procedural/injunctive relief questions as it has to date. (Conversely, I tend to think the Appointments Clause cases have peaked.) The election stuff, of course, could be a deal in 26 and certainly 28.

1. Louisiana - voting rights/redistricting challenge where the court may call into question the whole majority-minority district approach.
2. Bost - though a standing case, relates to ability to challenge election day rules and processes (how long polls open, how long mail in votes accepted, etc.)
3. NRCC - Ability of national parties and PACs to coordinate spending and messaging.
4. Salazar - ability of states to restrict "conversion" therapy as part of medical practice regulation under the first amendment
5. WV - Trans sports
6. Hammersmith - how IQ scores can be used in death penalty/intellectual disability cases

 

[Aardvark86]

Greetings to all. We're now T-4 weeks til the start of the new term. No surprise that the 'main' docket has been relatively quiet in advance of the long conference in a few weeks. But the emergency docket remains active, and on that, a few random musings...
1. As I've noted previously, almost all of the victories and losses continue to be on preliminary/procedural/jurisdictional matters. I continue to think that things will get bumpier for the administration when we get to merits questions of executive authority, and to my eye, it looks like the tariffs case may be first up. (Both parties have urged the court to take up the FedCir's opinion, and it is in fact a merits case.) Whether on simple statutory grounds ("regulate" does not confer not taxing authority even in emergencies), on 'major questions' ground, or even constitutional grounds, I don't think the administration wins this one.
2. I took a peek at today's opinions on ICE enforcement in SoCal. On the one hand, I think Kav actually does have it right that the constellation of (i) illegals as 5-10% of socal population, (ii) nature of jobs, (iii) temp job pickup location, (iv) language, and (v) ethnicity really does get you over the lower, "reasonable suspicion" hurdle a la Terry v Ohio. But having read Soto's dissent, I suspect that there are times when the facts aren't setting up in that neat a way, and as usual, the tactics are just way too heavy-handed. So that got me thinking of the bigger question - why on earth is the court dealing with this and similar questions on an emergency stay basis? I think the answer lies in the breadth of the relief the advocates seek and the lower courts are issuing -- it really is likely to be overreaching of concern to the court when you're saying law enforcement can or can't do it's job in particular ways in the context of an injunction. Historically, even cases like Terry arose in the context of exclusionary rule motions, or motions for acquittal in the context of an actual proceeding against a defendant. Here, the named individual plaintiffs' stories are mostly for 'color' and really not much more. I think the court is suggesting the remedy, if any, is available on the back end.
3. I am wondering a bit how long Harvard's recent success will survive. Though I didn't delve into all of the details of that rather lengthy opinion, I'm not sure how it gets around the recent emergency docket order that grant terminations are matters for Tucker Act jurisdiction rather than apa matters for a district court.
4. Still puzzled a bit by all of the firing cases. The only thing I can make of them at this point is that Trump wants to establish this authority in a case where the plaintiff is not named Powell.

 

[Dadar]

Attorney General Pam Bondi welcomed the decision, saying in an X post that it means immigration enforcement agents "can continue carrying out roving patrols in California without judicial micromanagement."

Supreme Court lifts limits on roving immigration patrols in Los Angeles area

The decision prompted liberal Justice Sonia Sotomayor to say in dissent that she wouldn't "stand idly by while our constitutional freedoms are lost."

www.nbcnews.com

 

[Dadar]

https://www.politico.com/news/2025/09/08/supreme-court-ice-raids-ruling-00550551

 

[Dadar]

Supreme Court allows Trump to fire FTC commissioner

Trump's actions are in direct tension with a 1935 ruling that upheld restrictions on the president's ability to remove FTC commissioners without cause.

www.nbcnews.com

 

[Aardvark86]

Supreme Court allows Trump to fire FTC commissioner

Trump's actions are in direct tension with a 1935 ruling that upheld restrictions on the president's ability to remove FTC commissioners without cause.

www.nbcnews.com

Yeah Humphrey’s executor is another of those new deal cases where the reasoning was not especially tight, and went on to produce bad things. I think scotus would love to get rid of it, but only if they can do so without destabilizing the fed.

A cautionary tale in an(other) age where courts are subject to political pressure

 

[Dadar]

It seems like our legal system has gone back into the wild wild West

 

[Aardvark86]

It seems like our legal system has gone back into the wild wild West

I’m not sure I’d go that far. A lot of the arguments being made in the various high profile cases reflect arguments that have been made for a long time that some older cases are just poor decisions. The difference is that, while years ago judge Bork disputed that he’d overturn them because too much had been built upon them over the decades, now we have justices who are willing to take that hard look on the basis of a more “absolutist” theory that their oath is to the constitution rather than the government. It’s not a crazy principle, but boy it’s not an easy one to get your head around if you like predictability.

 

[Dadar]

I’m not sure I’d go that far. A lot of the arguments being made in the various high profile cases reflect arguments that have been made for a long time that some older cases are just poor decisions. The difference is that, while years ago judge Bork disputed that he’d overturn them because too much had been built upon them over the decades, now we have justices who are willing to take that hard look on the basis of a more “absolutist” theory that their oath is to the constitution rather than the government. It’s not a crazy principle, but boy it’s not an easy one to get your head around if you like predictability.

Having Clarence Thomas and Alito on the court destroys any credibility for the court imho.

 

[Aardvark86]

https://www.cnn.com/2025/09/09/politics/tariffs-supreme-court

And there it is.

 

[Dadar]

Yep, pretty sure we know how this will turn out

"The Supreme Court has agreed to hear two cases against the Trump administration that allege that new tariffs on U.S. imports were imposed illegally. The cases, which will be combined, were filed by several small businesses in the spring after President Donald Trump first announced the levies."

 

[Aardvark86]

Yep, pretty sure we know how this will turn out

"The Supreme Court has agreed to hear two cases against the Trump administration that allege that new tariffs on U.S. imports were imposed illegally. The cases, which will be combined, were filed by several small businesses in the spring after President Donald Trump first announced the levies."

I’m not sure we do.
1. There’ll be a jurisdictional issue to consider - district court or cit. given that one case comes from each, I’m not sure it’ll be decisive, unless each court addressed only one group of tariffs (Dk)
2. Then there will be the question of whether the acts authority “to regulate” extends to imposing tariffs. I suspect he may lose on this, both as a statutory construction and constitutional matter.
3. But if he does win that issue, he’d still have to have his declaration of an “emergency” upheld. My guess is this court doesn’t want to get in the business of questioning presidents’ emergency declarations when Congress delegates the authority to him to make them. That’s another reason why I think he loses on step 2.

remember, this is likely to be the first real merits case in all of the legal messes swirling around. Up to 2025, if there was a theme to recent cases it was this court wants article 1, not article 2, to be predominant. The chickens will come to roost.

 

[dpic73]

Creepy and foreboding - who trusts this court to uphold the 22nd amendment if it's challenged in 2028? Listen to her aside about FDR.

 

[Aardvark86]

Creepy and foreboding - who trusts this court to uphold the 22nd amendment if it's challenged in 2028? Listen to her aside about FDR.

Uh, yeah, and?

Justices -whether Soto or Barrett - have to be really measured about questions that could entail future case issues

 

[dpic73]

Uh, yeah, and?

Justices -whether Soto or Barrett - have to be really measured about questions that could entail future case issues

Not sure if I understand this response. Just thought it was interesting that Coney Barrett wasn't more emphatic about honoring the 22nd amendment when we can see the possibility of a challenge in the near future.

 

[Aardvark86]

Not sure if I understand this response. Just thought it was interesting that Coney Barrett wasn't more emphatic about honoring the 22nd amendment when we can see the possibility of a challenge in the near future.

ah...I'm not sure that either of them was particularly forthcoming.

 

[dpic73]

ah...I'm not sure that either of them was particularly forthcoming.

Correct but Soto's response that it's not settled law until a case is brought before the court, seemed to confirm that a threat to the amendment was a possibility. And for people that don't trust this court due to the wide leeway they afford this president, it feels a bit ominous.

 

[Aardvark86]

Correct but Soto's response that it's not settled law until a case is brought before the court, seemed to confirm that a threat to the amendment was a possibility. And for people that don't trust this court due to the wide leeway they afford this president, it feels a bit ominous.

I dunno. I'm just trying to think of what the nature of an argument for a third term would even be in light of the 22d amendment. Maybe something to the effect that it should be read as limited to no more than two "consecutive" terms? Or, if you wanted to get really machiavellian, perhaps one could imagine some weird scenario where Trump resigns, Vance succeeds, Vance runs and wins with Trump as his VP, and then Vance resigns. But boy, that's a lot of moving parts. I think both were just rightfully being open-ended. Incidentally, ACB sorta strikes me as having a relatively low tolerance for drama, perhaps from having a big family, and I suspect she'd be perfectly happy with a future world where the number of cases on the emergency docket dropped by about 90% and was confined to death penalty stay requests.

 

[Aardvark86]

Supreme Court seeks to avoid being cornered on Trump tariffs

President Trump’s most significant economic initiative is now in the hands of the Supreme Court. The justices announced Tuesday they will fast-track whether Trump can use emergency powers to …

thehill.com

Good piece on why it made sense for the court to take both of the tariff cases (ie, the one from the cit and the one from the district court)

 

[Aardvark86]

So with the crush of the fourth quarter, I'd been unable to drop a note regarding the start of the new term. The term docket is filling up in quite an interesting way, and I suspect we're going to learn a thing or two about the limits of executive power this term in cases that are at a merit stage.

Kickoff month ain't no slouch either with 1A and campaign finance standing on the calendar immediately and then the Louisiana VRA stuff next week. Today's "conversion therapy ban" case is an interesting one. While I have to say the "free speech" theory of the appellant strikes me as intuitively dubious, it'll be interesting to see what the court does with it. The state is right to argue this isn't speech regulation but medical practice regulation, but the implications of that argument for prohibitions on other medical procedures through medical practice regulation are intriguing, including not only "sexy" stuff like abortion but also more mundane things like, say, vaccinations. Going to try to listen in to the oral argument.

 

[UrHuckleberry]

So with the crush of the fourth quarter, I'd been unable to drop a note regarding the start of the new term. The term docket is filling up in quite an interesting way, and I suspect we're going to learn a thing or two about the limits of executive power this term in cases that are at a merit stage.

Kickoff month ain't no slouch either with 1A and campaign finance standing on the calendar immediately and then the Louisiana VRA stuff next week. Today's "conversion therapy ban" case is an interesting one. While I have to say the "free speech" theory of the appellant strikes me as intuitively dubious, it'll be interesting to see what the court does with it. The state is right to argue this isn't speech regulation but medical practice regulation, but the implications of that argument for prohibitions on other medical procedures through medical practice regulation are intriguing, including not only "sexy" stuff like abortion but also more mundane things like, say, vaccinations. Going to try to listen in to the oral argument.

Very interested in your thoughts on the arguments. I personally don't see much merit in the conversion therapy case, but curious nonetheless of the questions, tone from the court. (the Colorado law has carve outs for over 18 and for religious organizations, making the law narrow and about medicine and licensing).

 

[Aardvark86]

Very interested in your thoughts on the arguments. I personally don't see much merit in the conversion therapy case, but curious nonetheless of the questions, tone from the court. (the Colorado law has carve outs for over 18 and for religious organizations, making the law narrow and about medicine and licensing).

And, it sounds so far like there may be some questions about standing given the state's enforcement position. A lot of these "in terrorem" free speech cases - including the clerk with the gay marriage licenses - have a disturbing 'astroturf' feel to them.

I have to say, Soto is annoying as hell in how she will absolutely not let the advocates answer the questions she asks. Solid questions from NG on the standing issue, and from KJB in the round robin about how this is "expression" for 1A purposes and how this is distinct from Skrmetti. State counsel does a good job with questions around distinctions between speech and conduct.

 

[Rastafarian]

And, it sounds so far like there may be some questions about standing given the state's enforcement position. A lot of these "in terrorem" free speech cases - including the clerk with the gay marriage licenses - have a disturbing 'astroturf' feel to them.

I have to say, Soto is annoying as hell in how she will absolutely not let the advocates answer the questions she asks. Solid questions from NG on the standing issue, and from KJB in the round robin about how this is "expression" for 1A purposes and how this is distinct from Skrmetti. State counsel does a good job with questions around distinctions between speech and conduct.

Thanks for sharing. This stuff is really interesting.

 

[Aardvark86]

Thanks for sharing. This stuff is really interesting.

Sure thing. Unfortunately got pulled away a bit during the state's argument. Most of the questions from the "right" seemed to be somewhat in the nature of confirming their understanding of the parties' positions, rather than testing their limits. Also, not one of the more memorable amicus arguments from the SG - sort of a nothing burger imo.

Personal editorial comment: I tend to think that conversion therapy is quackery, pure and simple. That said, on the other side of the coin, I always scratch my head at how gender dysphoria and related diagnoses seem to be the only mental disorders where the "treatment" seems to be to simply validate the patient's articulated concerns and to reinforce them (and that's well before we even start talking about surgical alternatives), so I don't necessarily have a lot of sympathy for states that ban "conversion therapy" either.

 

[UrHuckleberry]

Sure thing. Unfortunately got pulled away a bit during the state's argument. Most of the questions from the "right" seemed to be somewhat in the nature of confirming their understanding of the parties' positions, rather than testing their limits. Also, not one of the more memorable amicus arguments from the SG - sort of a nothing burger imo.

Personal editorial comment: I tend to think that conversion therapy is quackery, pure and simple. That said, on the other side of the coin, I always scratch my head at how gender dysphoria and related diagnoses seem to be the only mental disorders where the "treatment" seems to be to simply validate the patient's articulated concerns and to reinforce them (and that's well before we even start talking about surgical alternatives), so I don't necessarily have a lot of sympathy for states that ban "conversion therapy" either.

My thing would just be that the licensure and actual medical therapy should be based on the best data we have available and from the recommendation of the medication associations. If this therapist wanted to do a religious therapy that may not be recommended medically, they can work for a religious organization and be an unlicensed, but paid therapist through them. Same as a doctor who recommends a patient to smoke 3 packs a day should lose their license to practice (pardon the over the top example).

 

[Aardvark86]

My thing would just be that the licensure and actual medical therapy should be based on the best data we have available and from the recommendation of the medication associations. If this therapist wanted to do a religious therapy that may not be recommended medically, they can work for a religious organization and be an unlicensed, but paid therapist through them. Same as a doctor who recommends a patient to smoke 3 packs a day should lose their license to practice (pardon the over the top example).

over the top...man, you have a quick trigger!

Semi seriously, I remember years ago watching one of those interactive panels run by Arthur Miller with all sorts of muckety-mucks, where they were dealing with hypotheticals relating to homelessness...er, persons experiencing homelessnessness .... er, unhoused personness. So Miller goes up to C. Everett Koop, then Reagan's Surgeon General, and says, "General Koop, suppose one day you're walking down the street and a homeless man comes up to you and asks for money. Now you know he's going to use it to buy liquor. Do you give it to him?" Koop paused thoughtfully, and surprised Miller by saying, "You know, I probably would, because at that specific point in time he is probably in a situation where that drink will do him more good than anything I could do for him as a doctor."

 

[UrHuckleberry]

over the top...man, you have a quick trigger!

Semi seriously, I remember years ago watching one of those interactive panels run by Arthur Miller with all sorts of muckety-mucks, where they were dealing with hypotheticals relating to homelessness...er, persons experiencing homelessnessness .... er, unhoused personness. So Miller goes up to C. Everett Koop, then Reagan's Surgeon General, and says, "General Koop, suppose one day you're walking down the street and a homeless man comes up to you and asks for money. Now you know he's going to use it to buy liquor. Do you give it to him?" Koop paused thoughtfully, and surprised Miller by saying, "You know, I probably would, because at that specific point in time he is probably in a situation where that drink will do him more good than anything I could do for him as a doctor."

Love C Everett Koop. He was a true man of integrity. Think he was also the first to take the General portion of his title more seriously.

 

[Aardvark86]

Love C Everett Koop. He was a true man of integrity. Think he was also the first to take the General portion of his title more seriously.

like Wilfred Brimley as Postmaster General on Seinfeld.

 

[Aardvark86]

So I'm marginally skeptical of how 'definitive' many of the tea-leaf-readers are w/r/t yesterday's case. I do think there's a bit of a tendency to take whatever Alito said and portray it as controlling.

Up today: an interesting standing case on whether a candidate for office has standing to sue a state over its counting of mail in ballots received after election day. Lower court ruled he didnt (notably, though he brought his claim well before election day, he ultimately won going away). I suspect that gets turned around, as I'm not sure who else other than a candidate might have standing. Candidate is being represented by Paul Clement, who is as good as it gets, and who is a real mensch. I'll probably listen in just to hear him make the argument - no one does it as conversationally as him.

 

[UrHuckleberry]

So I'm marginally skeptical of how 'definitive' many of the tea-leaf-readers are w/r/t yesterday's case. I do think there's a bit of a tendency to take whatever Alito said and portray it as controlling.

Up today: an interesting standing case on whether a candidate for office has standing to sue a state over its counting of mail in ballots received after election day. Lower court ruled he didnt (notably, though he brought his claim well before election day, he ultimately won going away). I suspect that gets turned around, as I'm not sure who else other than a candidate might have standing. Candidate is being represented by Paul Clement, who is as good as it gets, and who is a real mensch. I'll probably listen in just to hear him make the argument - no one does it as conversationally as him.

What you're telling me is that Paul Clement = Billy McBride?

 

[Aardvark86]

What you're telling me is that Paul Clement = Billy McBride?

>

I'd put him, say, right behind Daniel Webster, perhaps in a tie for second with Thurgood Marshall, and a little ahead of Elizabeth Prelogar.

And waaaaaay ahead of the "new" Matlock.

 

[UrHuckleberry]

>

I'd put him, say, right behind Daniel Webster, perhaps in a tie for second with Thurgood Marshall, and a little ahead of Elizabeth Prelogar.

And waaaaaay ahead of the "new" Matlock.

Just watched Billy McBrides closing arguments at the end of season 1 of Goliath so was on my mind.

Mike Ross was good at the conversational argument style with the jury/judge as well.

 

[Aardvark86]

Just watched Billy McBrides closing arguments at the end of season 1 of Goliath so was on my mind.

Mike Ross was good at the conversational argument style with the jury/judge as well.

Trial lawyers are another breed. It's a real art before the Supreme Court because you have to maintain at least a little wall of separation and deference, but there's a reason the SGs are sometimes referred to as the Tenth Justice. When you leave the SG's office, it can get harder to strike and maintain that balance -- as an example, Lisa Blatt is another current Scotus advocate who is smart as a whip but sometimes crosses it in cringy ways that people notice.

 

[BigPapaWhit]

Anyone listening to today's arguments on voting rights?

 

[Aardvark86]

Anyone listening to today's arguments on voting rights?

Sadly, tuned in late as I am just back in the saddle today after a trip to Maine over the weekend. Will probably listen to the audio file on my drive home on Thursday. I will confess though that this VRA stuff is a little out of my bailiwick.

Maine was cool - stayed in a cottage where "The Double Helix" was written, saw grown men racing giant hollowed out pumpkins with outboard motors attached in a river, and witnessed an 800 lb pumpkin dropped on an old pickup from a height of 200 feet (That's about 1.6M lbs of force!). Also got two tick bites.

 

[BigPapaWhit]

https://www.reuters.com/world/us/us-supreme-court-weigh-challenge-voting-rights-act-2025-10-15/https://www.reuters.com/world/us/us-supreme-court-weigh-challenge-voting-rights-act-2025-10-15/

for anyone wanting to listen

 

[BigPapaWhit]

Sadly, tuned in late as I am just back in the saddle today after a trip to Maine over the weekend. Will probably listen to the audio file on my drive home on Thursday. I will confess though that this VRA stuff is a little out of my bailiwick.

Maine was cool - stayed in a cottage where "The Double Helix" was written, saw grown men racing giant hollowed out pumpkins with outboard motors attached in a river, and witnessed an 800 lb pumpkin dropped on an old pickup from a height of 200 feet (That's about 1.6M lbs of force!). Also got two tick bites.

look forward to hearing your analysis.

 

[Aardvark86]

One quick observation from the tail end that I've heard - probably not a good sign for the black voters that the cases being invoked on their half are the like of Katzenbach and Milliken. (Fun fact, actually saw Katzenbach in a pro bono criminal matter do an oral argument in the 3d circuit shortly before he retired - big time gravitas.)

 

[fatpiggy]

 

[baltimorened]

One quick observation from the tail end that I've heard - probably not a good sign for the black voters that the cases being invoked on their half are the like of Katzenbach and Milliken. (Fun fact, actually saw Katzenbach in a pro bono criminal matter do an oral argument in the 3d circuit shortly before he retired - big time gravitas.)

I understand what you're saying but why not a good thing for black voters. OK so we eliminate designated "black" districts. Isn't such a district in contravention of both Dr King's wants and the civil rights law prohibiting discrimination based on race. Looking at it in current form aren't whites, Latinos, and Asians disadvantage living in a "black" district? In a redrawn - fairly - district everyone gets to vote based on their wants and the qualifications of the candidates. I'm kind of surprised asians haven't complained about the lack of Asian districts. Or maybe they have and I just haven't seen it

We should get back to the basics of designing congressional districts. Out with gerrymandered districts black, democrat and Republican districts. It's no wonder we are in the current situation politically. Both parties organizing and carving districts for their benefit at the detriment of voters should stop