Earlier this month, the Program in Law & Government hosted a panel of faculty members to discuss the major cases set to be heard by the Supreme Court this term, currently standing at 39 granted cases. The docket includes challenges to precedents across executive authority, election and voting rights, free speech, and emergency orders, each with the potential to significantly impact the practice of law and the functioning of the national government.
The panel featured Lisa Bressman, Vice Dean and David Daniels Allen Distinguished Chair in Law, Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, and Francesca Procaccini, Associate Professor of Law.
Trump v. Slaughter
One of the Supreme Court’s most consequential questions this term concerns the president’s power to remove executive officials. Since Humphrey’s Executor v. United States in 1935, the Court has permitted Congress to limit presidential removal of officers in multi-member independent agencies, such as the Federal Trade Commission (FTC), on the condition that they perform functions that are quasi-legislative or quasi-judicial, rather than purely executive.
The Court will revisit that precedent in a case involving the removal of FTC Commissioner Rebecca Slaughter by President Donald Trump. The justices will consider two primary questions: whether statutory “for-cause” protections for FTC commissioners violate the separation of powers, and if so, whether Humphrey’s Executor should be overruled; and second, whether federal courts have authority to prevent a person’s removal from public office.
“I’m not 100% sure that overruling Humphrey’s Executor will have the effect of dismantling or crumbling the administrative state,” said Professor Bressman. “Because the President has been pretty effective at steering and controlling independent agencies. There’s pretty good empirical evidence that the President has significant control, notwithstanding these removal restrictions.”
Professor Fitzpatrick noted on the panel that even early progressives such as President Woodrow Wilson envisioned administrative officials as being accountable to presidential policy, suggesting that “good behavior” in office in fact meant alignment with executive direction. This expectation is “not very distinct, to me, from what we would say today is at-will tenure,” he said.
Professor Bressman added that statutory “for-cause” language isn’t just a technical hurdle—it requires the president to justify a removal, creating transparency and a measure of accountability in how executive power is exercised. “That kind of transparency itself can interpose at least an opportunity for accountability,” she said.
The panelists emphasized that the debate of presidential authority over independent agencies long predates the Trump administration. “The independent agency has been in the crosshairs by conservatives and originalists for decades,” Professor Fitzpatrick said. “Justice Scalia hated the independent agencies, and getting rid of Humphrey’s Executor has been a goal for many, many decades. We’ve just been inching closer and closer to it over the years.”
Louisiana v. Callais
Louisiana v. Callais—a challenge to a redistricting plan requiring the state to create a second majority-Black congressional district—confronts Section 2 of the Voting Rights Act. It will examine whether such race-conscious districting qualifies as an unconstitutional racial classification.
Section 2 prohibits voting practices that result in diminished minority representation, effectively requiring some consideration of race when drawing districts. But the 14th and 15th Amendments of the Constitution, as interpreted by the Court, prohibit government decisions motivated by race. Therefore, compliance with Section 2 itself could be viewed as unconstitutional.
The panel highlighted that a majority of the Court may lean toward this interpretation, which could limit the scope of Section 2. Justice Ketanji Brown Jackson, however, has emphasized that the Reconstruction Amendments—13th, 14th, and 15th—were meant to address racial inequality, not to prohibit all race-conscious efforts to remedy it.
“The analysis would very quickly get you to a point where any kind of law that outlaws disparate impact discrimination could be viewed as a violation of the Equal Protection Clause of the 14th Amendment,” Professor Procaccini explained. “When you think about not having a disparate impact on a racial minority, you are thinking about race. And if you can’t think about race at all, then you can’t think about not having a disparate impact on the basis of race.”
“If anytime you think about race, it’s a racial classification, then the effects could be very broad,” Professor Fitzpatrick added. “I think highlighting the disparate impact of civil rights laws is one example of something else that would now be a racial classification.”
Chiles v. Salazar
The Court will hear Chiles v. Salazar, evaluating whether state bans on conversion therapy for minors violate the First Amendment rights of licensed mental health professionals. Colorado’s statute prohibits therapists from attempting to “change” a client’s sexual orientation or gender identity. The petitioner in Chiles, a therapist, argues that the law restricts speech. The case concerns where speech ends and professional conduct begins, and whether speech that occurs within a professional relationship deserves heightened constitutional protection. The Court has previously declined to recognize “professional speech” as a distinct, lesser-protected category, which complicates states’ efforts to regulate therapeutic practices.
“I get deeply concerned at the distorting effects that certain cases have on the doctrine,” Professor Procaccini commented. “Abortion cases always, on both sides, just contort the doctrine. These gender identity cases, I’m afraid, are starting to do the same thing. Again, I think there are real rule of law problems with that—the doctrine should be consistent across social areas.”
Berk v. Choy
In Berk v. Choy, the Court will revisit the application of the Erie doctrine—which requires federal courts hearing state-law claims to apply state substantive law and federal procedural law—in the context of state requirements for medical malpractice claims. Delaware law requires plaintiffs to attach an expert affidavit to their complaint confirming that malpractice likely occurred. The Court is examining whether that state rule also applies in federal court, or whether the Federal Rules of Civil Procedure govern instead. The decision could clarify the blurred line between substance and procedure in state-law claims litigated in federal court.
“I’m not exactly sure what the court will do, but those who have taken civil procedure know that the key question in all of these Erie cases these days is whether the state law conflicts with the Federal Rules of Civil Procedure or not,” said Professor Fitzpatrick. “So the real question, the hard question is, does this law conflict with the Federal Rules of Civil Procedure?”
The Expanding Shadow Docket
Beyond the merits docket, the Court continues to make sweeping decisions through its orders, or “shadow,” docket, which holds emergency rulings traditionally reserved for last-minute stays or procedural extensions. Increasingly, these orders address substantive disputes before full briefing or oral argument. Professor Fitzpatrick emphasized the significance of this emergence.
“I want to make sure that all of our students understand what an important development the shadow docket has become to the Supreme Court as an institution,” he said. “The Supreme Court does as much, if not more, of its work every year now on the shadow or orders docket as it does on the merits docket.” He added, “It’s consuming a lot of time and a lot of energy, and it’s a big deal.”
Historically, the docket was used primarily for capital punishment and routine timing issues. It now regularly resolves injunctions and administrative disputes. The shift stems partly from the rise of universal injunctions by lower courts, which can block federal policies nationwide and prompt the government to seek quick intervention from the Supreme Court. Critics argue that this has led to rushed decisions on major constitutional issues, raising concerns about the Court’s transparency, and there is bipartisan concern about these operations, Professor Fitzpatrick said.
“They’re deciding monumental things on papers with no arguments,” he noted. “The lower courts don’t really know what the significance of these things are, and I think it’s kind of short-circuited justice in many respects.”