Advisory Opinions - SCOTUS 2025 Term Debrief

Episode Date: July 3, 2025

Pardon our legal nerd-out as Sarah Isgur, David French, Amy Howe, David Lat, and Zachary Shemtob—our dream team of SCOTUSBloggers and Advisory Opinions hosts—break down the biggest moments from the Supreme Court’s term. What made this term so mellow? Which rulings came out of left field? And is Justice Jackson the Supreme Court’s breakout star? The Agenda:—Mellow vibes all around—Emergency Docket vs. Merits Docket—Cert petition surprises and denials—Oral argument highlights—Justice Clarence Thomas’ post-Dobbs influence—Looking ahead Show Notes:—SCOTUSblog's Stat Pack This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. ["Born Ready"] ["Born Ready"] Welcome to Advisory Opinions. I'm Sarah Isger here with the Extended Universe. Amy Howe, Zach Shemtob, David Latt, and David French.

We're going to be talking about the term in review. Surprises, emergency docket, what's up with Justice Barrett, all that and more on Advisory Opinions. No Frills delivers. Get groceries delivered to your door from No Frills with PC Express. Shop online and get $15 in PC optimum points on your first five orders.

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All right, Amy, I'm starting with you. How would you describe this term? Was it a cold term? I would say, and I think you have to divide the term up. I think you have to talk about the merits docket on the one hand, and then the emergency docket on the other hand. And Zach, I just want to say I like that you kind of got to have the last word in how

the emergency docket was labeled on the stat pack. None of this short order stuff. You got to have the last word in your household. But on the one hand, it was not a term, particularly when you compare it to last term, that was filled with the blockbusters. We had the Scrumetti case, certainly. We had Mahmoud versus Taylor. But one of the biggest cases on the docket came from the emergency docket.

And I felt like when I think about this term, mostly I'm going to think about was how many times the Trump administration, in such a short period of time, came to the Supreme Court asking for, quote unquote, emergency relief and how successful it was there. David Latt, agree, disagree. Well, first of all, the fight for short order docket is not over. The rebels will continue to fight their rearguard action here, so we're still trying to make short order docket happen.

I agree with Amy about that important distinction between the emergency and merits dockets. To use the expression that Justice Thomas recently used in Louisiana v. Calais. It's sort of a Janus-like system referring to that mythological creature with two faces. One face, the Merit's docket, I would describe as relatively chill, and the other face, the emergency docket, I would describe as a bit hyper. And just compare on the merits docket this term Which yes did have Scrumetti as Amy just noted and the Trump v. Costs although that did come from the short order docket but compared to some of the

recent terms So for example October term 2023 had the two Trump cases immunity and disqualification Plus Loper bright which overruled Chevron. October term 2022 had SFFA v Harvard, affirmative action, Biden v Nebraska, student loan forgiveness, 303 Creative about that website designer who won't do websites for gay marriages, Moore v Harper, the independent state legislature theory, and then October term 2021, Dobbs and Bruin, enough said. On the merits docket, this was a more chill docket.

Let's back up for a second. David French, when we think back on this term, were there any cert petition denials, for instance, that surprised you or cert petition grants that surprised you that ended up on the merits docket or that the court actually ruled on in the equity short order emergency shadow docket. I'm thinking here, for instance, for me, I was very surprised that we didn't get either the Thomas Jefferson High School or the Cambridge case about schools that use admissions policies that are race neutral on their face, but are put in for the purpose of creating racial balance kind of as a backhand to the affirmative action

case students for fair admissions versus Harvard. I'm more, I'm not as, I'm not so sure that surprised is the right word, but it's a combination of surprised and disappointed. I'm sure there's a long German word for that. Um, but I'm more surprised slash disappointed that the court did not take up the there are only two genders t-shirt case because the, there is such a mess around the substantial disruption analysis in the tinker world in school speech. And they've taken the angry cheerleader case in recent past, which is an important issue, it was important, but I think it's less important as a matter of First Amendment jurisprudence in the school setting, then figuring out what

substantial or material disruption means. So that was the one I was most surprised about. I was not as surprised about the Thomas Jefferson and the Cambridge cases because it felt to me like the court wasn't eager to really dive back into that and is waiting, maybe as it did after Heller, waiting for things to kind of mature, the law to mature at the circuit courts in deciding these affirmative action type cases. So that didn't surprise me as much, but the one that I was surprised slash disappointed

at the most was their only two genders shirt. Zach, let's move from cert petitions to oral argument. Was there an oral argument this term that either was the most fun for you, the most interesting, the most surprising, uh, oral arguments? Question mark? There were, so the most surprising was Scrimmetti where Justice Gorsuch did not say a single thing the entire oral argument. And I kind of want to pivot there to Scrimmetti and Justice Gorsuch in general. I thought this was very interesting. Not only during that oral argument was he completely silent, but he didn't even write in scrimmatic. And if you know, Justice Gorsuch, he is not a wallflower. If he has

a strong opinion on something, he's going to write. And I think this was a reflection. And I know this is kind of tangent going off of the question going a little farther, but I think it was a reflection of Justice Gorsuch when he wrote Bostock recognizing that there was a cause of action in terms of federal employment discrimination for gay and transgender folk, that that was an important decision to him where he could show his textualism,

bona fide textualism, that he was a textualist. And it led in that direction. I think he kind of wanted to end it there and when the trans issue kept percolating as it did in Scrimetti, it was not something he especially wanted to deal with. And so he was totally silent during oral arguments, didn't write in the opinion and kind of stayed out of the fray, voted with Justice Roberts, did not vote with Barrett or Alito or Thomas, and kind of just tried to stay silent on the issue altogether. That to me was just a fascinating glimpse into the workings of the court through oral

argument. All right. Amy, Sir Petition's oral arguments, thinking more of the process of the term, what do you have to weigh in on this? I thought there were a couple of oral arguments that were really well done that in which the advocates, it wasn't necessarily something they weren't flashy, but I thought the advocates did a fantastic job.

In one case, the advocate won, in one case, she didn't. The first one was Sarah Harris, one of the principal deputies, solicitors general, now that there are two of them in FCC versus consumers research. And really just both sort of the depth and breadth of her knowledge. She just came across as incredibly prepared and did a fantastic job of fielding the justices' questions in that case and ultimately the United States won. And then the other argument is a very different argument and she ultimately did not win was Nicole Saharsky in Medina versus Planned Parenthood involving whether or not a private person or a private entity can bring a federal civil rights claim when South Carolina

terminated funds for Planned Parenthood. And she has a really interesting style. She's very relaxed, but somehow it really seemed to work. And I knew that she had an uphill battle, but she did a terrific job. And it was hard to say coming out of the oral argument exactly where the court was gonna go. Ultimately they ruled for South Carolina but I thought she did a fantastic job. I also don't want to interrupt but I also have to

mention Lisa Blath's oral argument in AJT. David I know you had some thoughts on that if you want to explore that in a little more depth. This is the case in which she and Roman Martinez were arguing. And I think at one point she accused him of misrepresenting things, but she walked it back and she very classily apologized after the argument. So I think, you know, things are good on that front. The argument that I thought was very interesting and well done was Bondi v. Vanderstalk. This was the ghost guns case.

And a lot of Supreme Court arguments are not necessarily accessible to people who are not steeped in all of the SCOTUS stuff. But this was something that people could understand. This was about ghost guns. It featured then Solicitor General Elizabeth Quilager against Peter Patterson of Cooper and Kirk. And they were arguing about what's the best analogy for a ghost gun, this kit of gun parts that you can order online and it gets sent to you and then you can make a gun.

And so is it like having the ingredients for an omelet as Justice Alito suggested? Is it like a Hello Fresh meal kit as Justice Barrett said? And how hard is it to turn into a gun? Is it like assembling IKEA furniture, which was what Elizabeth Prelager mentioned? And it's just kind of funny to imagine someone as perfect and poised as Elizabeth Prelager struggling with IKEA furniture like one of us mere mortals. But anyway, I thought Bondi v. Vanderstock was super interesting argument. I also thought, I mean, one of the things that was interesting about that argument,

you hear these stories about the Solicitor General's office and their preparation for oral argument. And I assumed that she would put together a ghost gun as part of her preparation for that argument. And sure enough, she mentioned that she had. Yeah, absolutely. David French, you and I have discussed in the past that one would expect with six Republican appointed justices, five of whom are self-identified originalists, that we would start to see a shift in who is making these arguments and what the arguments they're making are to, if you need to count to five, you've got to have at least one

originalist coming on board. And so we would start to see more arguments, regardless of the side, that were about text history and tradition, or that perhaps we would see more conservative advocates coming to the court and that this would be sort of the full employment act for conservative lawyers while the progressive lawyers languished for lack of their bilingualism in originalism, text history and tradition type stuff. What did you feel like you learned this term on that thesis? Well, yeah, you raise a really good point. And I thought actually when we had the Bostock case, which had the two components, the funeral home case,

and also had the LGBT or the gay and gender identity aspects. So you had sexual orientation and gender identity aspects. So you had sexual orientation and gender identity aspects in Bostock. And I thought in that case, when the plaintiffs won, and they won in part by appealing directly to Neil Gorsuch on a very textualist grounds, that what you had seen was the roadmap. In other words, the Bostock plaintiffs

walked into the Supreme Court, they won a case they were not supposed to win if you're just talking about sheer ideology and sort of outcome-based determinations. But when you were listening to the oral argument, knew very quickly, oh, these guys might win this case. I thought that was the roadmap. And it isn't necessarily the case that the roadmap has to be that it's a conservative lawyer arguing Because certainly the lawyers arguing in Vostok were not conservative lawyers, but they very fluently

made conservative textualist arguments and You began you would see a little you saw some of that But I was actually somewhat surprised especially in some of the bigger cases, that that wasn't as present. Same! I actually felt like our thesis in theory was like a no-brainer, but in practice, I didn't feel like this term added any evidence to that thesis in the positive and maybe some in the negative. And the two cases that really stand out on that basis are Skirmetti and Mahmoud. In both of those cases, these were cases that, you know, there were real questions raised

in that really tremendous New York Times report that we talked about, about, hey, wait, should you even take this to the Supreme Court? Is this an appeal that you need to make after that Sixth Circuit loss? Do you realistically think you're going to win? And then you walk in and yeah, I know that Chase Strangio, is it Strangio or Strangio? I know that Chase did not come in and make all of the radical legal arguments that have been made before and came in and made a pretty key concession about suicide, that there was no meaningful difference in suicide rates. But again, this was a pretty aggressive argument and the mock mood was terrible

facts. And so a lot of this is puzzling to me why you would think walking into this without making big adjustments in strategy, big adjustments maybe in approach, why you thought there was any real prospect here. Okay. So let's move from, we've started at the beginning with cert petitions, we've gone through oral arguments. I want to talk about the individual justices. David Latt, which justice did you learn the most about this term? So I remain fascinated by Justice Amy Coney Barrett, aka ACB.

Way to take the easy answer. I just published a column, if I can do a shameless plug, on Bloomberg Law, sort of with a shoutout to those DOS Echise ads. I called her the most interesting justice on the court, just like the most interesting men in the world. You know, everyone thought, oh, she's tacking leftward. And Jodie Cantor for the New York Times did this great profile of her, which you and David talked about previously, where they commissioned a study from some professors, and the professors said that she was the

Republican appointee who was most likely to line up with the liberals. But if you look at the fine print of that study by Lee Epstein, Andrew Martin, and Michael Nelson, it runs through decisions up to something like the middle of June. So guess what it didn't include? It didn't include Skirmetty in which she wrote that concurrence saying that she would not give a transgender status heightened scrutiny. And the study did not include, of course, the Casa case, where she wrote this opinion, which we're not sure

of the impact yet for various reasons we can get into. But it's fair to say it was a significant win for the Trump administration. So I think people can still argue, and the jury is still out on whether, as I put it in the column, is Justice Barrett a horsewoman of the MAGA apocalypse, or is she a traitor to the Trumpian cause?

Stay tuned. Are the surprises with Barrett, though, really reserved for the emergency docket, and therefore more procedural than anything else. I mean when When we're talking about substance, is there a real Surprise here or or is it just your her institutional? proceduralist lens which she's using to for the emergency docket itself

Now look I would say that Look my personal view on Justice Barrett is I think she's calling the cases as she sees them and people who have known her for a long time, like Professor Noah Feldman, who's definitely on the left, who clerked with her 25 years ago, said, look, this is the same Amy Coney Barrett I knew, you know, 25 years ago. So I happen to think that. I don't think she's tacking to the left or tacking to the right. Some people, including Mike Davis of Article 3 Project, were wondering, oh, maybe these last two decisions were her responding to

this pressure from the right, where they called her a DEI hire and they called her Amy Cami Barrett, as David likes to point out. But remember, those decisions were in the works well before, you know, some of the most recent criticism of her. And one thing I would point out, though, is definitely check out the tone or the style of her opinion in Casa, which definitely I know the four of you broke down on the crossover episode with Divided Argument. That is a shift for Justice Barrett. Previously, her tone has been very restrained, and in that, I felt she was channeling the style of her old boss, the late Justice Scalia.

She once at a Federalist Society event described herself as a one jalapeno kind of gal. If you look at the menu items on a Tex-Mex restaurant from one to five jalapenos, and she described the late Justice Scalia as five jalapenos, I would say her opinion in CASA, especially in how she dealt with the dissent by Justice Jackson, that's like three or four jalapenos. I mean, what even wasn't the first time? I mean, if you remember her separate opinion in the Colorado disqualification case. She didn't name the dissenters by name the way she did with Justice Jackson, but she did have

that sentence or two where she talked about, she did chastise the, or they weren't dissenters, but it was a separate opinion and she sort of chastised them for their tone in that opinion as well. And she said, this is not the time to bring the temperature up. This is the time to bring the temperature down. So can I offer a theory real fast about this? She's the only justice that I know of who was a symbol more than a person when she became a justice of the court.

And it was related to, especially on the right, it was related to her confirmation hearing before when the dogma lives loudly within you. And she became, people would sell that on cups, you know, on coffee mugs, on T-shirts. And so she became kind of a symbol. And nobody knew her jurisprudence. I mean, she was a law professor from Notre Dame, gets the dogma, lives loudly within you, becomes a front runner almost immediately for the Supreme

Court once she's put in the Court of Appeals. And then in the moment she's nominated in this extremely tense political time, she walks into her confirmation hearing, she doesn't even have notes in front of her, right? So she's effortlessly fielding all of these questions. And she became kind of a symbol of defiance against the left in a lot of people's minds on the right, more than a jurist, if that makes sense. And so when she comes in as a fully, as an actual human being who's a jurist and not a symbol of defiance

and has her own jurisprudence, I think it was, we were always going to have a collision, a train wreck between the symbol that was built up over the last, say, couple of years of the Trump first term, and the actual person who has an actual judicial philosophy and an approach that isn't some sort of like giant middle finger to the left.

And, and I think that that's one of the disadvantages that she had on the, on the right as she came in as a symbol and not as a like really fully formed jurist. I, I do think the biggest surprise to me in terms of Barrett was that she would not have voted to grant certain dobs. That more so than the emergency docket was quite surprising given her reputation and her role as a symbol. Yeah, but you dig into that a little further. What looks like happened was that she said,

I'll vote as long as we push it to next term. And that another justice said no. And then she said, well, if you're going to try to do this my very first term on the court, then I'm not going to vote to take it. And then she took back her vote is what it sounded like to me. So I don't know that she was voting no on taking daubs per se, the way that like sort of the billboard version of that is. So much as, again, very institutionalist, very, it's her first term on the court. She wants to think about the court as a whole, not fracturing it the second she gets there and replaces Ruth Bader Ginsburg. So I think of that more as informing

where she is on that Y axis for me, that institutionalist axis and how she thinks about the credibility and legitimacy of the court and that she does care about that. Amy, let's stick with Justice Barrett for just a moment. Agree, disagree with what's been said so far. Is she the most interesting justice on the court? I think she is. I think that we're still learning about her and she's the one justice who is generally

voting with the majority in these big cases, but to the extent that particularly on the shadow docket, even if her objections are procedural, that she may be more likely to vote with some of the liberal justices. You kind of feel in a lot of these cases like you know where everybody else is going to vote. When we come back, we're gonna walk through some of these other justices because I disagree that Amy Coney Barrett was the most interesting justice on the court this term. More to come on Advisory Opinions. And we'll take a quick break to hear from our sponsors over at FIRE. Free speech on campus is under attack and professors are too often among the first to draw administrators

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Protect your online privacy today by visiting expressvpn.com slash advisory. That's E-X-P-R-E-S-S-V-P-N dot com slash advisory. And you can get an extra four months free expressvpn.com slash advisory. Okay, we're back. So Justice Barrett was the third most likely justice to be in the majority this term. The Chief Justice, number one. Number two is Justice Kavanaugh, which like fun fact, he is the justice since coming on the court who has been in the majority the most often of any justice since 1953. And even that's just like, we didn't really go counting before then. It's not that there was some justice in 1953 that was different. So Justice Barrett's number three on that list, which I find kind of interesting because when you think back to the swing justice,

by which of course I mean Justice Anthony Kennedy, his power and influence was derived from always being in the majority because then he could control sort of which way the wind blew. What I do find fascinating about Justice Barrett this term is that that's not the project she's undertaking. She's happy to be the fourth vote in dissent. I mean, happy is the wrong term. She will be the fourth vote in dissent. She's not always trying to join the majority and change the majority opinion like we've seen past swing justices do, which is really fascinating to me. So in that sense, I do think we learned something about Justice Barrett. But, and Amy, I'm coming to you on this one, But, and Amy, I'm coming to you on this one, Justice Kagan was the fourth most likely justice to be in the majority, which means she was breaking quite often from justices Sotomayor and Jackson, certainly more than we've seen in any past terms.

What did we learn about Justice Kagan? What was going on this term? And is the, well, it's not a bromance if it's girls, she-mance, what do we call, is the slumber party breaking up? Your guess is as good as mine. I mean, you always see her in oral arguments. I mean, we've seen her since the day she was confirmed. And there was this idea that this is one

of the reasons why she was chosen and all of her work as the Dean at Harvard Law School of sort of forging connections with professors on the right. And you know, you used I felt like we used to see it more where she would be trying to sort of form bridges with the justices on the other side of an issue. And is that what's going on today? Is she shifting to the right?

That seems unlikely. On the other hand, in the big cases, this term, she was for the most part on the same side as her fellow Democratic appointees, Sonia Sotomayor and Katanji Brown Jackson. Sarah, I have a hard disagree with you on this one. I think so. Okay, frequency in the majority, Kagan was 83%. And after her were, you know, Sotomayor was 78%. So that's not a huge difference. But as Amy was saying, if you go to the closely divided cases, she was only 45% of frequency in the majority. But you skipped one, didn't you? You skipped the non-unanimous cases. Sure. Let's go to the non-unanimous cases.

Okay. She was 70% and Sotomayor was 62%. But when it came to the closely divided cases, as Amy had mentioned, she voted as predictably as one would imagine. There was no move to the right or even a move to the center right at the end of the day, there were real, no, there were no real surprises here. And, and I think it was kind of a, a bit of a boring term for Kagan in that she had no real barn burning dissents, you know, she had a number of majorities, which were actually unanimous, which was, was of course nice to see, but I didn't think anything really notable in terms of Kagan came out this term,

unlike say Barrett. All right, so that was actually a trick because I don't think Justice Kagan was the justice that I learned the most about this term. Just testing all of you. But the justice that I feel like I learned the most about this term was Justice Jackson. David French, why don't you tell me what you think?

Well, you know, one of the questions, we knew Justice Jackson was going to be on the left side of the court. One of the really interesting questions was she going to be at the left end of the court? And in other words, is she the new most liberal justice? And I feel like in this term, not only did she establish herself as the most liberal justice, she was in the majority the least in the non-unanimous cases. And by a pretty good bit, she also established that she's gonna be, and we'd already known this, she came onto the court with, she had a pretty hot bench,

she would ask a lot of questions. She's also, I think, not just the most left-leaning member of the court. I think she's in many ways maybe the most outspoken member of the court, or moving towards that, maybe kind of in a tie with Kagan. And so I do feel like we learned that there is now, Justice Sotomayor is now not the most left-leaning member

of the Supreme Court. And I think that's an important piece of information. I'm going to make you all talk about Justice Jackson because again, I think we learned the most about her. In terms of one term, learning about a single justice, Amy Coney Barrett may still be the most mysterious, but Justice Jackson's less mysterious now than she was this time last year. I think Zach, what do you think? as this time last year. I think Zach, what do you think? I agree. I think that in terms of voting is one thing, but certainly in terms of tone, she came off as by far the most liberal justice. I mean, we saw it in CASA, we saw it in a

number of cases, and we also saw the response from Barrett where she obviously teed Barrett off and Barrett responded in kind. So I think even putting her actual voting pattern aside, which was very similar to Sotomayor's, just the way she wrote and the rhetoric she used demonstrated that she was the most quote unquote liberal of the justices this term. And I think that trend is very likely to continue. David Latt, I feel like when it comes to Justice Jackson, she is providing some evidence for my idea that a post-filibuster Supreme Court could start looking different

because it changes who gets picked in the first place and it changes their incentives even on the court to some extent. The difference between a justice who needed votes from the other side versus one who didn't. Now, my thesis on this was always that you would see the changes more in the district courts first, and certainly we've seen a lot with forum shopping lately, and then the circuits and then the Supreme Court, that the Supreme Court would be a real lagging indicator on this in part

because of course the filibuster for the Supreme Court ended five years after it did for the lower courts. But on top of that, Justice Jackson to me also feels like the first justice in a new Supreme Court where there would be video cameras. I know there aren't video cameras in the Supreme Court, but she seems much more like a justice you would pick or that she's behaving more like a justice that you would pick if you knew that there were cameras watching. I mean this in several respects and not all negative. She is at oral argument and in her

written opinions, not making necessarily like in these weeds legal arguments. She's making arguments that normies can understand. She's appealing to higher values of justice or liberty or fairness. She's incredibly fashionable, no question about that. She's a made-for-TV justice in that sense. Yeah, obviously. But I mean, David, is this fair? Is she the least nerdy justice on the Supreme Court now? Huh, that's an interesting question. On your point about the filibuster, I totally agree with you as to the circuit and district

courts, but let's look at the justices who have joined the court since the demise of the filibuster as to SCOTUS. Gorsuch was the first, and he can sometimes tack to the left. You have Justice Kavanaugh and Justice Barrett, who are also at the center of the court and occasionally align with the liberals. And then you have Justice Jackson, who definitely is at the left. And again, I urge everyone to check out

SCOTUSblog's amazing stat pack. She was in the majority 72% of the time, which was significantly lower than pretty much everybody else. So I often like to think of this as, who is the justice of the resistance? Hashtag resistance. And I used to think, oh, it's Justice Sotomayor.

But this term, I think, Justice Jackson wrested the crown of justice of the resistance from Justice Sotomayor. And the other thing I would say about Justice Jackson is, I wasn't sure initially when she joined the court what she would be like in terms of how far left. And let's recall a couple of things about Sort of the pre Trump Justice Jackson because I think she really kind of came into her own as justice of the resistance

After Trump got reelected the prior term we saw a couple of interesting things from her There were two criminal cases where the former public defender Justice Jackson voted with the government She had arguments about how her vote or her theory of the case could ultimately long-term benefit defendants, but she voted with the government. When did she side with the criminal defendant? In the January 6th case, where she voted with the conservatives and Justice Barrett voted with the liberals. Then, another data point about Justice Jackson, the pre-Trump reelection Justice Jackson,

was she would occasionally also have this kind of tag team or alliance with Justice Gorsuch who's far more conservative than she is. Now, sometimes they would tag team on due process things where he can kind of be a little more on the liberal or left side, but not always. And so initially I kind of thought, oh, Justice Jackson, she's kind of confounding my expectations.

She's a more conservative than I thought. But this term post-Trump, no, no, thought, oh, Justice Jackson, she's kind of confounding my expectations. She's more conservative than I thought. But this term, post-Trump, no, no, no, no. She is justice of the hashtag resistance. I would have said she was more libertarian based on her, where she joined with Justice Gorsuch, that it was like his libertarian instincts meeting her libertarian instincts last term. And I was like, ooh, what's going on with these concurrences? And we saw a couple at the very beginning where they were on the same side and then not so much after that.

Interestingly, and I don't actually have this stat, but I in my heart feel a statistic. I feel like they were the ones most likely to solo dissent or write a solo concurrence that nobody else joined, Amy, is it fair to say that Justice Jackson is our least institutionalist justice? If that's how you define institutionalist, and then that would certainly make the chief justice who did not write any separate opinions. It's one of those things where I looked at that particular graph in the stat pack and you see the six opinions for the chief justice and you think boy

Far better to be in his chambers than in Justice Jackson or Justice Thomas's chambers where they got who knows how much you know They've got their six or seven opinions and then their separate dissents and concurring opinions You know thinking about to follow up on what David Latt said you know back when in sort of the period when Justice Breyer had announced his retirement and then President Biden had announced that he was going to nominate then Judge Jackson to replace him. And, you know, I think most of us thought that in terms of the impact on the court, it would be more or less kind of a one-for-one swap, sort of jurisprudentially.

Maybe if you look at the statistics, maybe Justice Breyer would not necessarily have voted. David Latt mentioned the January 6th case. Maybe in a lot of these cases, Justice Breyer wouldn't necessarily have voted that much differently from Justice Jackson, but you know to go back to is it Justice Powell you know you change one justice and the court changes like wow like in terms of the tone of her separate opinions in particular and you know her questions and comments at oral argument it's a it's a big change. Well, since you brought up the Chief Justice, he spoke to the Fourth Circuit conference

the day after the term ended, which by the way, a good indication that the term was never going to leak on into Monday. He had a couple interesting things to say. He was asked about his single greatest achievement as chief. And he said, I don't think there's much I can point to as a great accomplishment. And I don't think there should be, you know, it's interesting. You go back to that Jeff Rosen interview from right when, you know, it's like 18 months after he's chief justice and basically a second term. And he has these big lofty plans to bring back

the heady days of the martial court and the institutionalism and speaking as one voice and none of these concurrences and unanimity is to be valued in all things. And then in 2025, no single greatest achievement, doesn't matter. Like that is my achievement, is that I'm not sitting here trying to have some grand project. No single greatest achievement doesn't matter. That is my achievement is that I'm not sitting here trying to have some grand project.

I'm just trying to steer this ship to the extent that I can through the rocky shoals. He also talked about his colleagues giving him a lot of grace that sort of somebody has to make these decisions. Somebody has to be in charge. And even if they would have made a different decision that they're, you know, allowing him to be chief. But he said, it's an unusual position. You're supposed to be the leader in some sense, but you can't fire people if they don't listen to you and you can't cut their pay. You have to communicate what you think is important sometimes in eight different ways. And then there's the saying that I guess he hadn't heard before. Being chief is like walking through a cemetery. There are a lot of people

under you, but nobody is paying attention. He said he'll be stealing that from now on. So of the other justices, and now we're thinking about Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Sotomayor, does anyone have fun things they learned about that justice or surprising note on any of them? Zach, I'll start with you. I don't know if this is surprising, but I went back and looked at the stat pack to see who wrote the most, and it was by far Justice Thomas. So Jackson, Sarah, you had mentioned this.

Jackson had the most dissents at 10. Thomas then had the second most at 9, and followed by Gorsuch at 7. Don't you feel like the Justice Thomas, though, writing a lot is a bit like Festivus? Like I've got a lot of problems with you people and now you're going to hear him? I mean he just keeps it coming and he's setting all sorts of potential precedent for the future. But he also really did in concurrences. He wrote 13 concurrences, which was by far, far more than anyone else this term.

So he was keeping his clerks very busy. David French, pick a justice. I'm very interested in Justice Thomas and particularly related to the Paxton case because as you pointed out in our podcast last earlier this week, Justice Thomas in many ways was refuting, drum roll please, Justice Thomas in the Paxton case was distinguishing cases that he had been in the majority in. And for example, you know, Ashcroft versus ACLU. And so this was a fascinating, I think, peek and insight into how justices can evolve

and how facts, circumstances, changing and evolving understandings of what works and does not work in the real world can actually over time influence a single justice. And so I had not realized, Sarah, and this is on me, but I had not realized until you walked through it earlier this week, exactly how many of these cases that Thomas had been in the majority on, that Thomas is distinguishing, impacts it.

I mean, Thomas has basically been on the court since the internet, the whole time, right? Al Gore invents it and then Justice Thomas gets on the court and like that's the order of operation. Amy, pick another justice. Justice Sotomayor, you know, she is now entering, what is it, year something like year two, year three as the senior justice in the dissent. It seems to a certain extent like they have their little lanes when they're dissenting. Justice Kagan takes the voting rights cases, but Justice Sotomayor had the big dissents in a lot of these major cases. She read from the bench a couple of times. In the end, there was a stretch in June, and in particular, day in June, where the court

issued some pretty big opinions, and they were unanimous. The Catholic Charities case involving the tax exemption or the lack they wrote for Catholic charities and then the Ames case about whether or not if you are a member of the majority group and you are alleging employment discrimination, do you have to meet a higher bar that were unanimous and there was this sort of sentiment of, oh, aren't they all getting along so well? And many of us who follow the court regularly were just wait a couple of weeks.

And sure enough, that's where we were. And so you had kind of the remarkable spectacle last week of Justice Sotomayor basically telling people to go out and file class actions in the universal injunction case, which It was something I feel like I hadn't seen before So I want to give a shout out here to Justice Alito my fellow New Jersey in First of all, I do not think that he and Justice Thomas are going anywhere in Trump's term This is a contrarian prediction of mine, but a consistent one over the past year or two.

Look, it's not dispositive because Justice Kennedy did and then left, but they've hired clerks out for at least two full terms, both of them. But here's the other thing. They're having a grand old time. As Zach mentioned, Justice Thomas continues to write up a storm and a lot of his concurrences and from you know Years ago are now the law of the land and then justice Alito I would describe as the voice of the Trump administration at the court. You see this in the short order docket. He seems to be strangely invigorated by the project of defending the prerogatives of the administration After he wrote Dobbs, there was a part of me that wondered,

okay, that's paragraph one or two of your time's obituary, Justice Alito. Is this sort of the mic drop moment? Like nothing I will do on this court will eclipse the importance of Dobbs and overruling Roe, et cetera. But no, he is trucking along. And again, I think he is energized

by being this staunch conservative voice. So I would give a shout out to Justice Alito. And for people who want him to leave to be replaced by a younger model, sorry, I think you're going to be disappointed. Time to talk opinions. We'll dive into the funnest cases when we get back. All right, Amy, I'm starting with you. What, what was the, I don't know. If I say biggest opinion, that's sort of boring. I guess what's the opinion that you think should have gotten more attention? The opinion that I think should have gotten, I don't know if that should have gotten more attention is the way to phrase it, but remember the crisis back in January that was the TikTok case?

We went from the application to stay the enforcement of the law to the argument in a month. And then the courts, and so by the way, this was over the holidays that these lawyers were briefing the case. And then the court cranked out its opinion in a month. And guess what? The law is still not being enforced. The president has extended it again. I feel like it's that scene in Zero Dark 30,

where the analyst played by Jessica Chastain comes in and writes on the board every day. You know, the president that keeps extending has extended it, even though he doesn't actually have the authority under the law to issue a second extension. And so we're all like, what did we go through this, this, you know, five alarm fire for? Great point. David Latt.

I was Amy Partley stole my answer. I did want to mention Tick Tock because I know, alarm, fire, four. Great point. David Latt. Amy partly stole my answer. I did want to mention TikTok because I know, Sarah, you kind of have your hostage day countdown or count up of how many days TikTok decision gets ignored. No, I like Amy's. No, it's how many days Bin Laden is just out there and we know where he is and we're not doing anything about it.

Days since we discovered Bin Laden's compound and we're sitting here. That's what this is. It's 163 days that the law, that TikTok has been unlawful in the United States to be downloaded and nobody is doing anything about it. I agree with you and Jack Goldsmith. If people are looking for an example

of defiance of the rule of law, I think that's exhibit A right there. If you had me pick another surprise, I guess I was also surprised by the Glossop case out of Oklahoma, because you don't often see this court, which is undoubtedly a conservative court, voting in favor of a criminal defendant and a death row inmate at that.

I thought that was definitely a surprise. When I first heard the bottom line, I thought, are we sure about that? I need to read the opinion. Did someone just mis-relay something to me? But no, that was interesting. I think it's also a reminder of how, look, in a lot of these cases, contrary to their critics, the justices are doing law. They saw what they thought was an egregious due process violation and gossip, and they directed it to be corrected. So it's not just everybody voting their politics or their priors and I think Glossop is a good example of that. David French, Sleeper Case. Ames, Ames, Ames. This is the Jackson decision

in the reverse discrimination case. Nine zero case, nine zero case that says that you don't have to have a heightened showing if you're a member of a majority group who's facing discrimination. And I think that was an important moment. I mean, I know that Jackson would still be in dissent on say if Harvard v. Fair came up again. But what that demonstrated was really, and it reaffirmed and extended the sort of colorblind approach to the law that was advocated in Harvard v. Fair, for example. And very interesting to me that that was 9-0 in Ames and that Justice Jackson wrote the

opinion. And so I feel like, you know, like so many things that get, I talked about this last podcast, so many things that are contentious on the way in, if they're 9-0, they're not contentious on the way out. And this is an example of one of those cases. Zach, I can't believe we haven't talked about the God Gaze and Guns Day, where we had unanimous decisions written by the liberal justices on, I mean, as David Latt has dubbed it, the God Gaze and Guns Day. But what was your sleeper opinion? I have to say this is disappointing, but David French stole my answer. It's Ames. I was getting very ready to go off on it. He took most of my talking points. I will say on the ground,

Ames is now going to likely generate a whole lot of litigation. Now that you have folks from majority groups who there's not a heightened standard in terms of Title VII employment discrimination, they're going to be more open to filing suit. Having clerked for a disparate court judge and having done some discrimination cases, I can tell you that the courts are absolutely filled with these for better or worse, and this is going to generate even more. So I think on the ground, as well as a matter of constitutional law, Ames is going to have a real impact. All right, let's do a little bit of a preview on next term.

Amy, what do you think the summer's gonna hold? What are the big cert petitions outstanding? What are the cert grants that you're looking at? I mean, literally there is no one on the planet who I think, including the nine justices, who can answer this question better than Amy Howe. Okay. Well, so I think you will remember that we used to have these discussions talking about

the blog and someone would say, when things slow down, and I would say, not so fast. So I think we're going to have more emergency litigation. And in fact, there is one that came in while we have been recording this podcast filed by the Trump administration. I haven't been able to figure out exactly what it's about yet because the font is too small on my phone. So, you know, emergency litigation, particularly emergency litigation involving the birthright citizenship. And if you look ahead to I think, I think the summer is going to continue to be busy looking ahead to next term, until Monday, it wasn't a particularly exciting term.

Looking ahead, we had the challenge to Colorado's ban on conversion therapy. There wasn't a whole lot else, but then on Monday the Supreme Court agreed to take up a case that had asked the justices to revisit their 2001 decision on campaign finance regulation and they agreed to do that. And then we're still trying to figure out, we don't know exactly what we're going to get out of the so-called cleanup order list tomorrow. But there are a couple of cases on potentially on that conference that could be, as Donald Trump would say, huge. I thought that the justices might send the cases involving

bans on transgender women on sports teams, women's sports teams, back to the lower courts for another look in light of Skirmetty. They haven't done that yet. So those could be on the conference. And then there's also a challenge to Montana's parental consent law for minors seeking abortions.

So depending on how a couple of these cases go, it could be sort of a warm to super hot term. David Latt. So one thing I would highlight, and agree with Amy is I think that this term has the potential to be a quite hot term. Before the recent terms, there was sort of this alternating pattern of hot term, cooler term, hot term, cooler term. I think on the merits docket, the term that just finished was a relatively cooler term. So I think this term could be a hot one. And here's one other thing I would just point out remember that a lot of the things on the short-order docket are these

Issues of a preliminary relief that have not technically been decided on the merits So all of these cases are going to ripen into merits cases and they're going to show up and they're going to be huge So the president's power to fire executive branch folks Humphreys executor, that old precedent, which technically hasn't been overruled, but in a short order docket opinion, basically the court said, we're going to overrule it. That's going to come up. A lot of our listeners and readers of SCOTUSblog in the live chat are always asking about the reduction in force related litigation. That's going to come up. A lot of these things that I've been percolating

are going to come up or come back. Louisiana v. Calais, that election law case, that's coming back because the justices kicked it. It's kind of like how if you're taking a standardized test like the SAT or the ACT, it's like, ooh, that's a tricky one. I'm going to skip that question. I'll come back to it when I have time. And then like, oh, I ran out of time, so I never got to that one. So, you know, they just kind of like, oops, sorry. I think they're trying to save face like, Oh, yeah, we need to figure out the supplemental briefing on that. So we're going to come back to you on that. So, you know, Louisiana v. Calais. And then here's another issue that maybe could come back up. So remember that a case about the Catholic

charter school St. Isidore out of Oklahoma, which wound up getting affirmed by an equally divided court because Justice Barrett were accused, apparently because of her close friendship with Professor Nicole Garnett. If another state decides to try and do such a thing, like have a religiously inflected charter school, obviously there were votes to grant that case. The justices are interested in that issue.

So maybe that issue will come back. So I am going to predict that OT 2025 is going to be a hot term. David French, I'm sort of curious what we'll see as the fallout from the birthright citizenship nation universal injunction stuff. Because first of all, you and I have already discussed, we think there could be no fallout that old boss a lot like the new boss, or sorry, new boss a lot like the old boss. But there is one potential shift that I could see happening, which is that circuit courts, the middle management of our federal judicial system get kind of squeezed out a little bit. That if Justice Kavanaugh really does control the votes to sort of run the emergency docket at the

Supreme Court and be like, the Denny's is open all the time, the district judges still matter because they've got to like do something first. They have to be the first movers. But do the circuit courts really matter anymore? And I'm looking at you DC Circuit, because y'all always think you're like junior justices. I mean, you even take the summer off, like the Supreme Court used to do. I wonder whether the DC Circuit's gonna feel

a little bit like the middle child. So that's so funny, Sarah, because I actually had the opposite inclination and now I'm second-guessing myself. Because my opposite inclination was that the circuit courts were going to feel a need to move more quickly. That if you have a nationwide injunction, that in a lot of ways that gives everybody, there was this sort of down the line benefit to that, because the injunctions were preserving status quo. And I think a lot of courts sort of take the position, well, if I'm preserving status quo, I'm kind of in this do no harm position. Well, if that's not the case anymore, and what

you're doing is you're providing relief for a more narrow, now assuming this is not an APA case and this is not a class action in those other areas where that more broad relief may be available, my inclination was that the appellate judges would be saying, gotta move, gotta move. Because as soon as that injunction is entered by district court and say it applies to a subset of a much larger population of individuals,

all of a sudden you've got a determination in law that something is unconstitutional that is still being imposed on other people, right? And so the circuit court, I feel like the circuit court will then have to move more aggressively into that space because whether or not it essentially leapfrogs and goes to the Supreme Court is totally out of their hands. But what is in their hands,

what is in their hands is do they move? And so that's, that's why I had that opposite inclination. Yeah, I don't know. I think both of those are in theory quite persuasive. And I, I guess that to me is, yeah, we'll see. I think that will be maybe more of the effect of birthright citizenship than like all of this sort of sky is falling or the world just had this huge, huge shift in how law and presidential actions are going to work. I haven't heard a good theoretical case for that compared to these smaller, more nuanced changes that could nevertheless have big impact on how litigation proceeds and how lawyers view their incentives and what to put their time on. Zach, last word to you

on all of this, you can pick birthright citizenship fallout or undervalued case. I think that there's going to be a lot of fallout from birthright citizenship, I think a big question is going to be when the merits ultimately come up and whether that will be next term or the term after or it's slow walked because on you know one thing that was I don't know if I'd call it funny but uh regardless on SCOTUS blog was many of our readers believe that the merits were going to be decided this time around and they didn't seem to understand, and I get it, that it was a universal or nationwide injunction case. So we are now very much still waiting for the fallouts, not only in terms of these procedural

issues but also getting to the actual merits and birthright citizenship. Well, thank you, Extended Universe, for coming and doing a little term retrospective and a little bit of term preview. Obviously, we will do a bigger term preview as we get closer in time. David French, Zach Schemtob, David L ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,