Supreme Court Watchers and Practitioners Brace for Another Consequential Year
September 30, 2025
Approximately 150 in-person and virtual attendees joined the D.C. Bar CLE Program’s highly popular Supreme Court Review and Preview panel discussion on September 25, reflecting on key trends and statistics from the 2024–2025 term and examining the cases before the Court this term.
Moderated by Daniel Woofter, a partner at Russell & Woofter LLC, a boutique appellate law firm focused on cases before the Supreme Court and the federal courts of appeals, the panel noted a decline in unanimous decisions in the previous term as well as significant ideological splits in closely divided cases.
Chief Justice Roberts mostly joined the majority, doing so in 95 percent of the cases. Opinions by Justices Alito and Thomas aligned 97 percent of the time, and those of Justices Jackson and Sotomayor aligned 94 percent of the time, underscoring the polarized nature of the Court.
The panelists expressed broad agreement with Elaine Goldenberg’s observation of the Court’s expanded use of the emergency docket. “It is a huge part of the Supreme Court’s work now,” said Goldenberg, partner at Munger, Tolles & Olson LLP.
John Elwood, partner at Arnold & Porter Kaye Scholer LLP, recalled that when he clerked for the Supreme Court in the mid-1990s, the only emergency cases heard then centered on the death penalty.
Key Takeaways From Previous Term
Morgan Ratner, partner at Sullivan & Cromwell LLP, reviewed the Court’s decisions relating to the nondelegation doctrine, which she described as “the subject of some ire by those who wanted to limit the administrative action of this regime.” She discussed last year’s lawsuit over the Universal Service Fund — which ensures that all Americans have access to affordable telecommunications service — and whether Congress impermissibly delegated its fee-collecting power to the Federal Communications Commission (FCC).
FCC v. Consumers’ Research “was an interesting case because the opening brief was filed by the FCC during the Biden administration, and the reply brief was filed during the Trump administration,” Ratner said, noting how observers were wondering whether the agency would change its posture under Trump. “But, on the whole, the government stuck to its position that there was no nondelegation problem,” she said. The Court’s majority decision, authored by Justice Kagan, agreed.
The free exercise of religion appeared to be the Supreme Court’s “flavor of the week,” Elwood said, noting that lawsuits relating to the issue have been particularly popular since Obergefell. He drew attention to two cases from this past term: Mahmoud v. Taylor and St. Isidore of Seville Catholic Virtual School v. Drummond (consolidated with Oklahoma Statewide Charter School Board v. Drummond).
In Mahmoud, the Court ruled in favor of parents who wanted to opt their children out of classroom instruction that included the use of books with LGBTQ+ characters and themes. St. Isidore involved a virtual religious charter school in Oklahoma, where the state’s supreme court held that the state establishment clause rendered a publicly funded religious school unconstitutional. “The case wound up being affirmed by an equally divided Court,” Elwood said.
Finally, Goldenberg touched upon TikTok v. Garland, where the Court was asked whether the company’s forced divestiture or ban would be a violation of its First Amendment rights. The Court held that the regulation at issue passed intermediate scrutiny and that the divestiture sought was necessary to support national security concerns.
Funding cuts by the Trump administration were commonly challenged under the Administrative Procedure Act. Elwood’s firm handled Department of State v. AIDS Vaccine Advocacy Coalition, which resulted in a stay that the full Court later vacated, returning the matter to the district court. However, Elwood indicated that subsequent cases did not find the same kind of relief. “It looks like, generally, smooth sailing for the administration,” he said.
Although the Court was protective of due process, cases regarding immigration law, such as Noem v. Vazquez Perdomo and Noem v. Svitlana Doe, generally resulted in wins for the administration.
Ratner discussed emergency docket cases involving the removal of heads of agencies, differentiating between removal for cause and without cause. She mentioned Trump v. Wilcox, stemming from the president’s decision to dismiss Gwynne Wilcox from her position on the National Labor Relations Board without citing neglect of duty or malfeasance, which are the statutorily mandated grounds for removal under the National Labor Relations Act. In a 6–3 decision, the Supreme Court declined to reinstate Wilcox.
In the case of officials for whom cause is a requirement for their removal, and the president alleged that their removal was for cause, it is an open question whether courts could review this decision, Ratner said.
William Jay, partner at Goodwin Procter LLP, noted that the Court had little interest in hearing emergency docket cases involving private parties, an observation Ratner agreed with.
The Battles Ahead
Jay spoke about upcoming cases involving campaign finance law, saying that for a long time, the dividing line was “you can spend as much as you want, but you can’t give as much as you want.”
“The idea is [that] giving money to candidates raises the risk of corruption … spending your own money to elect candidates is free speech and does not have the nature of quid pro quo corruption, and the Supreme Court said, in the 2010 case of Citizens United v. Federal Election Commission, that corruption is the only legitimate interest that can justify regulating speech in the electoral context,” Jay said.
National Republican Senatorial Committee v. Federal Election Commission is an upcoming case that involves coordinated spending, blurring the line between giving and spending. The plaintiff in the suit alleges that federal laws limiting coordination between candidates and political parties violate the First Amendment.
In the racial gerrymandering lawsuit Louisiana v. Callais, Elwood said, “I have not the foggiest idea what’s going to happen here.” Elwood said he suspects that there is “some kind of appetite for a broader holding […] but the Supreme Court, just a couple of years ago in Allen v. Milligan, [had] an opportunity to say that Section 2 [of the Voting Rights Act] is unconstitutional, and they didn’t take that, so I suspect it will be something in between.”
The power of the president to impose tariffs under the International Emergency Economic Powers Act (IEEPA) is at the center of Learning Resources, Inc. v. Trump. Ratner distinguished the tariffs as either broad trade-deficit-motivated tariffs or more limited trafficking tariffs targeting countries the administration feels have failed to help reduce drug trafficking.
Ratner indicated that the litigation poses three sets of challenges: whether the IEEPA allows for tariffs at all, whether there is an unusual or extraordinary emergency and the extent to which the tariff relates to it, and whether the tariffs violate the nondelegation doctrine.
The United States Court of International Trade, a specialized court hearing the claims prior to the Supreme Court’s involvement, ruled that the tariffs at issue exceeded IEEPA authority under the first and second grounds. The tariffs were too broad and lacked a connection to the alleged emergencies, according to Ratner. “There was no relationship between the products and the drug trafficking,” Ratner said. “They were just used to create leverage against the country that they were impacting.”
Ratner acknowledged that there are cross-currents that make it difficult to assess the outcome of the case, pointing out that the conservative justices’ attitudes about the nondelegation doctrine would run up against their separately held opinions regarding executive authority and national security.
Goldenberg wrapped up the preview of upcoming Supreme Court cases with a look at Little v. Hecox and West Virginia v. B.P.J., involving women’s sports and whether excluding transgender individuals violates the 14th Amendment’s equal protection clause or Title IX of the Education Amendments of 1972. “I don’t have a highly detailed prediction about exactly what will happen, but I have, perhaps, a baseline one,” Goldenberg said.
The United States filed amicus briefs for both suits. “I find the brief by the United States — personal commentary here — to be very sharp in tone,” Goldenberg said, noting the briefs’ use of the male pronoun for the plaintiffs throughout. “As a bottom line, it doesn’t seem likely to me that the challengers of both laws are likely to prevail in these cases,” she concluded.
