Inside the Supreme Court’s Key 2026 Decisions

0:00I kind of look at this term and I see, in many ways, the fruition of what I think of as a traditional conservative legal movement over the past 20 or 30 years. You know, the agenda to revitalize the Second Amendment, to curb race consciousness in admissions and voting and other areas, to enhance religious liberty, to curb regulation in various ways. And so one thing I'm digesting is just how successful that movement has been with this court and wondering where it might go now with a lot of those major goals accomplished.

0:53all our new episodes as soon as they're available. Today, I'm talking with my colleague, Jeff Fisher. Jeff's a professor of law here at Stanford and co-director of the Stanford Supreme Court Litigation Clinic. And we're going to talk about this term at the Supreme Court. It used to be, you know, on the last, there was an actual last day of the term, and you could be pretty sure you weren't going to hear very much more until the first Monday in October when the court came back. But I think now the court kind of stays in session year round, but they've now completed issuing opinions in all of the cases on which they heard oral argument this past term.

1:31So I guess the place to start, Jeff, is how would you characterize this term at the court? Well, Pam, it's always great to talk with you, and I'm super excited to hear what you think about this as well. And as I guess as we record this, we're just digesting this morning's final batch of decisions. But I think there's two things that jump out at me on a high level about the term. One is the obvious clash between the court and President Trump over executive power. And the court issued, I guess, fair to say a mixed set of decisions on that front, which I'm sure we'll talk about. But I think that is, on the one hand, quite dramatic and unusual over the course of our nation's history to have the court and the president clashing in this way, but on the other hand, kind of expected in a world where most substantive policy now comes out of the White House instead of Congress.

2:22So, you know, I'm sure we'll talk more about that. The other thing, though, and I wonder whether this is just getting lost a little bit more in some of the media coverage of the court because President Trump takes up so much attention, is I kind of look at this term and I see in many ways the fruition of what I think of as a traditional conservative legal movement over the past 20 or 30 years. You know, the agenda to revitalize the Second Amendment, to curb race consciousness in admissions and voting and other areas, to enhance religious liberty, to curb regulation in various ways. And so one thing I'm digesting is just how successful that movement has been with this court and wondering where it might go now with a lot of those major goals accomplished.

3:12Yeah, I think those are two things that struck me about the term as well. The other thing that struck me about this term is there's a lot of tension among the justices. I mean, there are a lot of opinions kind of going back and forth and sniping at each other. I mean, we saw that early on in the term in the tariffs case where you had, you know, Justice Gorsuch kind of mansplaining major questions doctrine. And you saw that in today's decision in the birthright citizenship case with the back and forth really between Justice Jackson and Justice Thomas over what the meaning of the 14th Amendment, the original meaning of the 14th Amendment is.

3:55So you're seeing this is not a court on which there's a lot of consensus. And I think there's a lot of mistrust or distrust of the kind of bona fides of other members of the court in various ways. And that strikes me as different. The other thing, of course, about this term at the court is that the court had to issue a bunch of merits decisions on issues that they had kind of punted or pushed away last term, the birthright citizenship being the biggest one, but also the Lisa Cook issue and the Humphreys executor issue and the like. So a lot going on this term. I don't know. One thing that got lost, I think, in most of what I've heard of the coverage of today, which is mostly about birthright citizenship and the like, is the court's major Fourth Amendment decision.

4:47And that's obviously an issue that you focused on a lot. So I wonder if you want to say a little bit about jail fencing before we get into some of the stuff that people have been more focused on. Yeah, good point. It's great to bring that case up because it's not a political case in the way so many of these others have that valence. And for that reason, I think the court is a little bit more interesting in these cases sometimes. So this case continued a path the court set down years ago in one of our own clinic cases called Riley and continued on in another case called Carpenter of basically applying the Fourth Amendment to digital devices and information and particular location history in this particular new case.

5:30And so I think the court is now, fair to say, firmly committed to applying the Fourth Amendment in a meaningful and even robust way in the digital world, where all of our information is both kept on these devices that are readily obtainable by the government, absent a warrant, and information we share with third-party providers like our cell phone service provider or Google. And so I do think it is quite significant. And the court's idea is that because of new technology, the government has a greater ability than ever to get into the intricacies of our private lives. And the court sees the purpose of the Fourth Amendment as being served by applying it in these new contexts, even if, strictly speaking, the doctrine doesn't quite work.

6:18So that's kind of an interesting way to think about it. Often the court is very allergic in the statutory interpretation context and even in the constitutional context to getting behind the broader purpose of a law and trying to carry that forward in new circumstances. But it seems far less inhibited in the Fourth Amendment. And maybe that's just because the Fourth Amendment uses the loose word reasonable. But I still find it kind of interesting. And I like that the court's doing it, but I'm not sure everybody else would. I sometimes wonder whether part of the reason the court is doing that here is they understand this because they all have cell phones.

6:53Right. And so if they think to themselves, well, if that because I mean, the famous example of this was in the case that involved putting the locator beacon under underneath the car at which the chief justice said, well, if you can do this to this guy, could you put one of these devices on my car? And Michael Dreeben, who was the deputy solicitor general, had to say, well, yes, we could, at which moment you knew where the court was going to go. I think that's a great point. And the court, when the court can imagine itself in the situation of one of the litigants, it's immediately a different case.

7:28Yeah. Yeah. And the Fourth Amendment is that area is that area for them, especially on these issues. Absolutely. Yeah. So you had divided the court's kind of big ticket cases into two buckets, the sort of traditional conservative movement bucket and the Trump agenda, if you will, bucket. And there's a little bit of overlap between those two. But maybe the place to start is with the kind of traditional conservative movement docket. I mean, earlier on in the term in Louisiana against Calais and then in the repeat of Milligan up at the Supreme Court, the Alabama case, we saw the Supreme Court has really now gotten to the point and the campaign finance case, I think, today is another example of this.

8:11They've gotten to the point where they are just not going to police the democratic process very much. They're going to leave that to the states to do. They're going to allow unlimited amounts of money to move into the political process in a bunch of ways. And it seems like they've really kind of gotten to the point where there's not much more they could be doing in these areas. Right. And Rucho, where the court said we're not going to police partisan gerrymandering, as the other piece of this puzzle. So, right. And obviously, this is your turf more than mine. So I'm more interested in your views.

8:49But it seems like I don't know what's left. I think Justice Kagan says today, there's a remnant of a remnant left of campaign finance laws. And so maybe they'll have to go after that last little sliver of a nugget. But I think it's hard to know what's next in that category. You know, the thing that I've wondered, Pam, and maybe you want to say some words about the voting cases themselves, but I've seen some people writing about Calais and wondering whether that portends a bigger attack on disparate impact laws more generally. So maybe that would be somewhere that we might look for future challenges.

9:27Yeah. And of course, there's just been an opinion from the Office of Legal Counsel, which is if you kind of think about the Supreme Court of the executive branch, issues kind of constitutional rulings within the executive branch, suggesting that all of disparate impact law is unconstitutional, precisely because it's too race conscious. And do I think the court's likely to go there? It's been a major kind of piece of the conservative legal movement for quite a while now. If you go back to the 1990s and the Ricci case, it's been this argument that, you know, I think Justice Scalia used the phrase, the evil day, you know, the evil day is coming where we have to confront all this.

10:09Sandoval was kind of one of those cases. Sandoval is like that as well. So I think disparate impact theory, there are a bunch of justices who would like to get rid of it. One of the things that I think might make that difficult in a weird way for them is that Title VII, for example, which is the leading disparate impact statute, doesn't just forbid disparate impact on the basis of race, but it also forbids disparate impact on the basis of religion. And this is a court that very much wants to protect religion claims. And so, you know, it'd be interesting to see how they negotiate coming up with a you can't have disparate impact for race claims, but you can have it for religion claims.

10:50Right. And because as a constitutional matter, those two areas of law are separate, where the Smith Doctrine prohibits, at least stands in the way formally of the court extending disparate impact to religion claims. Yeah. So it's interesting how they're tied together on a statutory level. That would be interesting. Yeah, it'll be interesting to see. But I think, you know, one case that I think, I don't know how much it actually surprised people was the Watson case, which is the case about whether states can count ballots that are cast and postmarked by Election Day, but don't arrive until after that.

11:29And that was a five to four decision with the three more liberal justices, plus Justice Barrett writing it and the chief justice. And one of the things, of course, there, and I think this is true also with the citizenship case and maybe with a couple of these other cases is 10 years ago, they would not have been five to four cases. Yeah. Ten years ago, I think it would have been close to unanimous that, of course, the states have been counting these ballots that come in after Election Day that are cast by mail. They've been doing this for decades, if not for 100 years with regard to, you know, military ballots and the like.

12:04And no one had ever assumed that there was any problem with this. But in recent years, you know, and Justice Alito's dissent in Watson really takes up Donald Trump's agenda lock, stock and barrel up, there's likely to be fraud. And I really did kind of wonder why is there likely to be more fraud in a ballot that's postmarked by Election Day and arrives two days later than one that's postmarked by Election Day and arrives on Election Day? I just I was kind of mystified as to why he thought one of those was likely to be more fraudulent. But this goes back even to the voter ID cases, and they've taken a voter ID case for, you know, proof of citizenship case for next term already.

12:45Is this kind of rise of a kind of conservative, there must be fraud out there in the election system? Right. Well, I'm glad you brought up this case. I think it's super interesting. It's the one case the Republican Party lost this term. And I mean that as the litigant who brought the case. I think on the fraud and angle of it, you know, you're better positioned than I am. Perhaps the idea is, is once you get past election day and know how the vote is shaking out, there's a greater incentive. Who knows? But I think the two things that are interesting about that case are, one, it is it is a case where the chief justice and Justice Barrett broke from the other conservatives.

13:29And so this is to me as an example of a Trump case, not a Republican. Not a traditional. Not a traditional. Yeah, I shouldn't have said Republican, not a traditional conservative movement case. And so that's one way to notice that some members of the court seem more committed to the Trump agenda than others. And I think we see that in other cases we'll probably talk about. And then the other thing, I wonder whether you noticed this or had a reaction to it. But I thought there was a super interesting back and forth about the usefulness of tradition and, you know, sort of history with a lowercase h, not founding era history, but just kind of the way things have gone.

14:07And I think there, you know, the court has been in many areas of the law, the Second Amendment most notably, trying to interject more and more of that approach to deciding cases. And I thought it was so interesting to have Justice Barrett. I think if I'm remembering this is is this the case I'm remembering where Justice Barrett says just because we've done something for a while doesn't mean that that's what the law requires. You know that we may have been doing it for reasons that had nothing to do with the law. And that's the first time I've seen her stake out a different position than, say, Justice Kavanaugh or just, for example, who seems more willing to say, look, if I see that going on in history, I'm just going to follow it.

14:45And it doesn't require nearly kind of proof that everybody thought they were doing it because of some legal requirement. So there's kind of a different way to take that into consideration, which I thought was really interesting in that case. Well, that brings us to, you know, one of the biggest pieces of the Trump agenda, which is the birthright citizenship case, where both Justice Alito and Justice Kavanaugh are doing this kind of living constitutionalism point in a way, if you think about it, which is they say, oh, sure. at the time of Wong Kim Ark, there was just this limited group of exceptions to birthright citizenship.

15:19But, you know, times have changed. And we ought to be thinking more broadly about, you know, now we have all of this unwanted immigration into the United States, and we have people who can get on planes and yada yada. And it was kind of fascinating to see that and the Second Amendment and then the Second Amendment Hawaii case. And how do you want to use the Reconstruction Era history? That's bad history, you know, bad history in the sense that we no longer agree with those positions. I think you're right that this history and tradition stuff is so plastic. Well, I think that the birthright divide amongst the court members was really particularly interesting in that way.

16:02Like, I'm not sure if I would think Justice Alito and Kavanaugh would really say they're originalists, at least not to the level of some of their other colleagues. And interestingly, Joseph Gorsuch, who dissented on temporary visitors, would have agreed with the plaintiffs as to, and did agree with the plaintiffs, as to people who are here unlawfully and have children. And so he kind of peeled off exactly on that point from an originalist perspective. So I thought that That was quite interesting and noteworthy as well. Yeah, I just, you know, watching how the justices use history now, it just seems like it's becoming more and more of a fig leaf.

16:48Yeah, I mean, I think that I was thinking about this more generally today when I read some of the other cases, too, in that we have cases, some cases where the court still does this sort of traditional strict scrutiny or some other forms of means-ends testing where they walk through, you know, we have a constitutional, potential constitutional problem here, so let's see if the government has a good enough reason for what it's doing and if there's, you know, some other way to do it without impinging on constitutional values. And that's kind of the traditional two-step. And the thing that strikes me about that, maybe this is getting at your point, Pam, is even lay people can read those decisions and hear them reported and kind of get a pretty quick sense of whether they agree or disagree with the court's reasoning.

17:33I mean, it's kind of transparent in that sense. It's like the values that are driving those decisions are kind of laid out for the public. You know, they're not pure policy values, but they're legal values that have that kind of a flavor to it. But when you do these battles about history and tradition, and about whether Rhode Island in 1822 had this kind of law or New York and, you know, 1850 had some other kind of law and how you relate that law, whether it was enforced or not to the kind of law you have now. The public's kind of left on the sidelines, like with no real way to judge who's right or who's wrong about these debates.

18:09And I guess if that's really what's driving the debate for some justices and they really feel strongly about it, I'll give them a little bit of slack. But I don't think that's true all the way down the line. And some of the justices are using history and tradition kind of as a portal into policy analysis, like means and scrutiny. And there, I think there's a real problem because it's just not as transparent to the public and to anyone else who cares about the law, what the court's really doing and why they're doing it. So one place where the Trump agenda and the conservative agenda really met, I think, is in Trump against slaughter, which is the case about whether the president can fire for any reason or no reason at all commissioners on these major so-called independent agencies, things like the Federal Trade Commission, the Federal Communication Commission, National Labor Relations Board, and the like.

19:06And there, I think it was predictable. We sort of knew what was coming because the court had chipped away for years at the Humphreys executor argument. But the court decided that case. And then the same day came down with a decision essentially saying that Lisa Cook, who's a governor on the Federal Reserve Board, could stay in her position unless and until the president was able to fire her for cause. What do you make of the unitary executive theory? And how far down do you think it goes? The way the case is written, it's about, well, of course, the president has to be able to fire the commissioners on the EEOC.

19:47But how far down does the unitary executive theory go in the president's ability to fire people in the executive branch and in these agencies, do you think? Great question. Let me say a couple of things before I get to that. One is I should just sort of say for the listeners that our clinic did a brief in that case. So I supervised a group of students and we worked with members of Congress to, in a sense, defend Congress's law in the FTC Act and others that were at issue there since the Trump administration, which would usually defend a law of Congress, was actually attacking it. So we had a dog in the fight, just to be clear.

20:30But I think a couple of things about that decision that I found troubling. One is that this was a stare decisis case. In other words, should the court overrule precedent? So the court had looked at this question before and unanimously come out the other way. And even during this more recent revolution you described, Pam, Chief Justice Roberts admitted that the Constitution was silent on the president's removal power. So it's kind of a structural interstices kind of argument. In that kind of a scenario, boy, you'd think the court would have a little more respect for the prior views of not just the Supreme Court, but of the political branches over the years of reaching this, you might think of it as a compromise, and just letting the political process take care of this problem as it might.

21:19So it's a very, very muscular use of the court's power that we saw in this case. You know, the second thing is this is when you talk about Lisa Cook, that brings me back to the point I was just making a moment ago, which is it's hard for me to understand. And I'm not alone here. Justices Thomas and Barrett said the same thing, how the Fed can be any different from all these other independent agencies. The court waived a couple paragraphs of history of the first and second United States Bank of the United States, which give a sort of rough analogy. analogy, but boy, that's a long way from a carve out to a passionate as the court thought that, again, it had to overrule precedent to announce and everything else in the opinion sure seems at odds with that.

22:06So you just get the whiff of the sense that the court is thinking again on policy grounds that the feds ought to be treated differently, not on political, not on constitutional grounds. It goes pretty close to saying it's policy grounds when they talk about the importance of the perception of independence and the like, which just doesn't seem all that different, at least to me, doesn't seem all that different for the Fed and for, say, the Merit System Protection Board. Right. There's any number of other nuclear energy or, as you said, communications and media or any other number of regulatory areas where you might think independence is enormously important.

22:44And it just becomes, I think, a value judgment as how that stacks up against monetary policy. Um, so yes, I find that very frustrating. Um, can I cheat a little bit, Pam? And like, I don't know, uh, I'm guessing you have thought more than I have about how far this goes down to, uh, you know, non-principle officials given your time in the government. So I'd be super, I'd be really interested to hear your view on that. Yeah, I mean, I have the view on that. It's a little bit like your point about Justice Thomas and Justice Barrett's saying we don't exactly see all this big difference between the Fed and which is I don't see all this much difference between the principal officers who are nominated by the president in the first place.

23:30And the Constitution does have stuff in the appointments clause about whether those people have to be appointed by the president or can be nominated by heads of departments or the like. I don't see a principled explanation for why civil servants are entitled to protection if you have a really muscular version of the unitary executive. Because it's not as if when the president tells like the head of the FCC to block a merger between or the FTC to block a merger between two communications companies that the only person who's involved in blocking that is the commissioner. There are all of these lawyers below that and the person who writes the checks and the person.

24:14Yeah. And so I do kind of wonder if you take the unitary executive theory as seriously as some of the members of the court seem to think you have to, why the president isn't entitled to fire assistant U.S. attorneys and fire, you know, staff lawyers at the FCC and the like, as well as as well as the people at the top. And yet I have this sense the court doesn't think that the civil service is unconstitutional. I don't know. I mean, I can't figure out why. Because in some ways you think it's even more perverse for some, you know, underling to be able to thwart the president's power. President Trump used to complain about the deep state.

24:56That seems even more perverse than letting somebody with, you know, maybe approved by Congress or the like speak up and do something. Yeah. So I so I do kind of wonder about where we end up on the you know, how far down the unitary executive goes. I mean, certainly Donald Trump is attempting to do a bunch of stuff there with the schedule. I think schedule F or whatever it is to change a number of people who are currently civil servants who are protected by for cause removal into people who can be fired by an administration by an administration at will. We haven't mentioned all. Can I say one other thing about that?

25:34I wonder whether you mentioned the break, not break the court gets over the summer now. I wonder whether this could be an area of a lot of shadow docket energy very, very quickly if Trump starts firing a lot of people. I think that's just something to watch. Yeah, I think that's right. I think the Supreme Court has emboldened him. Yeah, I think those cases, the cases we've talked about have emboldened him. The immigration cases, which we haven't discussed, emboldened him, the temporary protective status case in particular. I have to say, I thought that that case was particularly shocking in some ways because Justice Alito's opinion for the court just completely sidelines the fact that Donald Trump made one racist comment after the next about Haitians who are in this country on temporary protected status.

26:27You know, they eat dogs, they're poisoning the blood of the country. You know, they come from a shithole nation and everything. Why can't we have more Norwegians and Swedes? And it was almost as if, you know, he said, oh, that's just that's just talk. And yet whenever he sees even the slightest criticism of culturally conservative religious people, he sees bigotry of a kind that the court has to race into stock. I can't improve on that point. I think it's just it's odd to me as well, how some members of the court, whether they call it giving him the benefit of the doubt or airbrushing over potentially, you know, very, very serious comments.

27:12I don't quite understand it either. I think it was I think there's two things that the court hasn't figured out. at least many members of the court, haven't figured out what to do in the Trump era. One is what to do with these tweets and bombastic, sort of informal, offhand, but very provocative remarks that the president makes, sometimes on almost a daily basis, because it's just so unprecedented from a U.S. president. And similarly, I think the court has been struggling to figure out what to do about certain positions and representations the Trump administration makes in certain cases, essentially saying black is white or the sun sets in the morning and rises in the evening.

27:57And the Trump administration has made the argument a few times, well, if the president decrees a certain fact, you can't look behind it, for example, in some of these immigration disputes and the like. And I think the court is just, again, puzzled and struggling with what, if anything, to do about that. And probably if push comes to shove, they would have very different views, as we saw in the case in the Haitians case. Yeah, it is striking. I mean, and this goes back even to Trump won and the Hawaii, you know, Trump free Hawaii and the Muslim ban, or the irregularity in the census case in Trump won.