On a recent episode of Stanford Legal, the three co-directors of Stanford Law School’s Supreme Court Litigation Clinic discussed some of the blockbuster cases from the recent SCOTUS term. Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and co-host of Stanford Legal, interviewed her clinic co-directors Professor Jeffrey Fisher, who has argued numerous cases before the high court, and Professor Easha Anand, who joined the SLS faculty last year and has argued three Supreme Court cases since then.

The Court’s recent docket of cases had “enormously consequential effects for our democracy, people’s rights, and everything in between,” according to Fisher.   

The following is a shortened and edited version of the full podcast transcript, which can be found here.

Pam Karlan:  Let’s start by asking what struck you overall about this term? 

Jeff Fisher: What strikes me is how John Roberts reasserted himself as being not just the Chief Justice of the Court in terms of his title, but also being the driving engine behind a lot of the Court’s decision making and opinion writing. The Court decided a lot of very important cases, but expressed itself in extremely modest terms saying, “Oh, we’re not doing very much. We’re just doing this little bit. We’re leaving this thing to the side, or that thing to the side.” But at the same time, they were handing down decisions that have enormously consequential effects for our democracy, people’s rights, and everything in between. So, there’s this odd dichotomy from the Court, where it looks in words like it is trying to take as low a profile as possible, but in deeds, it is becoming more and more influential on not just the daily lives of Americans, but even on the structure of government itself.

Pam Karlan: Roberts has always had this, “I’m just an umpire calling the balls and strikes” style, back to his time during the confirmation hearings, but the Court this year made some major changes, and I think some of the ways in which they seemed not to be doing major changes were just a refusal to go as far as the most conservative judges on lower courts have gone.

Easha Anand: I think that’s right. I think we continue to see the Fifth Circuit providing a little bit of window cover for the Supreme Court. The Supreme Court gets to look like it’s tacking back toward the center because it doesn’t go quite as far as the Fifth Circuit. 

I think the other theme is the newest justices, Justice Barrett and Justice Jackson, starting to develop their own voices and profiles in the Court. We see a lot of Justice Barrett writing separately to put forward her own view of what originalism requires—in some cases saying we should be less reliant on history, in some cases more. She is taking her colleagues to task a little bit on what originalism really means. We see Justice Jackson similarly staking out a very separate set of positions from her liberal colleagues, perhaps most notably, breaking from Justice Kagan and Justice Sotomayor and announcing that she thinks Aprendi, a seminal criminal defense case about jury trials, was wrongly decided—sort of surprising for a former public defender. 

Pam Karlan: It takes four justices on the Supreme Court to agree to hear a case, and there now aren’t four liberal or moderately liberal justices on the Court, so that’s changed the kinds of cases the Court is taking. 

Jeff Fisher: That’s right. There are a handful of cases a year, or maybe even up to 10, that are kind of “missing” from the docket now that the Court has changed its membership. I think we focus so much on the Court’s decisions with the crescendo at the end of June that we often forget to ask: what cases did they decide to take or not to take in the first place? That can be just as consequential.

Going back to Easha’s comment about Justice Jackson, which I think is really fascinating. She wrote more separate opinions this term than anybody on the Court. I don’t know if that’s the first time a junior Justice has ever done that, but it’s quite remarkable, and it’s part of this overall trend that I’ve noticed, which is the Court is taking fewer and fewer cases, and yet, they’re busier than ever, and I think one reason they’re busier than ever is all these separate writings, not just by the junior Justices, but by all of them. 

Pam Karlan: They had two cases this year that were blockbusters in some ways, that came off of the shadow docket, where they granted certiorari without there actually being a cert petition: Obviously the Ohio v. EPA case, which we may talk about a little bit later, and then the EMTALA abortion case from Idaho. They were, I guess, responding a little bit to the criticism that they shouldn’t be deciding these things without briefing and oral argument, but then it turned out in the abortion case, after they had the briefing and the oral argument, they threw up their hands and said, “Oh, maybe we shouldn’t have taken this at all.” In the meantime, of course, several months had gone by and several women had to be airlifted out of Idaho to get reproductive health care in other states because the Supreme Court had jumped in maybe a little too quickly. 

Jeff Fisher:  I think the other thing that might have happened in that Idaho abortion case is that is the Court saw where the votes landed after oral argument, where it looked like Justice Barrett was going to join the three Democratic appointees to potentially create a 5-4 decision with men on the one side and women on the other ruling against the rights of the women in that case. And maybe, quite possibly, that punt in that case might be ascribable to that, which also underscores Easha’s other point about the influence of Justice Barrett that’s starting to emerge on the Court.

Easha Anand: As a reminder, the EMTALA case was about an Idaho law that virtually never allowed for abortions, and had an exception only to save the life of the mother or in cases of rape or incest. It arguably conflicted with the federal law, EMTALA, that requires hospitals that receive federal funding, which is virtually every hospital, to provide stabilizing treatment to patients who arrive with an emergency medical condition. The argument that the United States made is: “Look, to the extent that Idaho doesn’t allow doctors to provide the kind of stabilizing care that EMTALA requires them to provide, the federal statute trumps the state law, and the Idaho law has to fall.” And so the Supreme Court reached out, as you alluded to Pam, took this case before there had even been a judgment in the court immediately below, and then a few months later, threw up its hands and said, “Actually, we’re going to dismiss this case.”

The other case that you alluded to that punted on an abortion issue was a case where doctors and medical groups had brought a challenge to the FDA’s loosening of various restrictions around the prescribing of mifepristone, which is one of the drugs used in the medical abortion procedure. And there too, the Court punted.  It didn’t say, “We think the FDA is right.” What it said is that this particular group of doctors doesn’t have standing. That is, they aren’t sufficiently injured by the FDA’s decision to challenge what the FDA has done here.

Both those cases, though, are not really wins for folks who care about reproductive rights. It’s not clear whether the punt is for now only, as in, “We don’t want to decide this in an election year,” or if the Supreme Court is really trying to get out of the business of adjudicating these abortion issues.

Pam Karlan: And speaking of election issues and hot button topics, the Supreme Court also had two gun cases this year, or maybe even three if you want to count the NRA case. Do you want to say a little bit about those cases? 

Jeff Fisher: The big headliner was a case called Rahimi v. United States, which deals with the federal statute that bars various people from possessing firearms in particular categories, in this case where someone has a domestic violence restraining order against them. The Fifth Circuit had held that law unconstitutional, and the Supreme Court reversed the Fifth Circuit eight to one, holding that the Second Amendment right to bear arms does not extend to somebody who has a domestic violence restraining order. The interesting thing about that case was it required the Court to grapple with, and maybe rewrite, the Bruen decision it issued just a few years ago, where it extended the Second Amendment right outside the home into public, and said that firearm regulations should be governed by the history and tradition of this country. And if you ask whether there’s a history and tradition of prohibiting people with domestic violence restraining orders or any other domestic violence issues from possessing guns, you’re going to find out the answer is probably no. That is a more modern concern of legislators and society.ut what the Supreme Court did is it said, “Oh we don’t have to have a historical twin,” which is what they’d suggested in their prior case. They said it’s enough to have a historical analog that we can abstract to a higher level of generality and say, “Yes, we have a history of preventing dangerous people from possessing firearms.” So the question is whether the Court really loosening up this history and tradition test in ways that will matter in the Second Amendment and allow more regulation. 

The Court also dealt with a case involving restrictions on so-called bump stocks, which are devices that you can attach to guns to, in effect, make them operate like machine guns. The question was whether or not attaching that to a rifle to make it act like a machine gun then makes it subject to the regulations that cover machine guns. This was something the Trump administration started and the Biden administration continued after the horrible shooting in Las Vegas at a concert several years ago. The Court, by six to three decision written by Justice Thomas and along party lines, said that even though a bump stock makes a gun in many ways act like a machine gun, it’s not enough exactly like a machine gun to be regulated the same way. This was purely a statutory decision, but in this case, coming down on the side of an expansive conception of gun rights. 

Pam Karlan: Easha, do you want to say a little bit about Loper Bright? 

Easha Anand: This was a little bit of a blockbuster term in a lot of ways, but particularly for the administrative state. That is the apparatus of federal agencies that help the president carry out his agenda: the Environmental Protection Agency or The Department of Health and Human Services, the Department of Homeland Security. The alphabet soup of agencies that are a feature of modern politics for many decades now. For a long time, the Supreme Court adopted a regime of deference to those agencies. That is, Congress would pass a law and the agency would be in charge of figuring out the nuts and bolts of how you operationalize that law. The agency would be the ones to figure out, for example, how many parts per million of this particular chemical can you discharge in these particular ways, these particular sites. The assumption was that Congress has neither the time nor the expertise, nor the kind of political capital, to get into that kind of nitty gritty, and so we defer to these expert agencies.

The Supreme Court has now and reversed that, saying agencies don’t get what was called Chevron deference. The idea was where the statute left the question open, where Congress hadn’t spoken clearly to it, and there was some ambiguity, you sided with the agency. This sounds like a very big shift in the balance of power between courts and the administrative state, and it is in some ways, but as many of our colleagues have documented, Chevron has been on its way out for a little while, and so it remains to be seen whether this is as momentous a shift as it might have been 10 or 20 years ago, because many conservative judges and justices had already eschewed the use of this kind of deference in interpreting statutes and judging agency action.

Jeff Fisher: I wonder whether Loper Bright is as big as people say it is. The Court says that courts can still look to what agencies think the law means, which may be grounded in expertise and experience, and in these really complicated, the “how many parts per billion cases,” I still wonder whether lower courts, particularly given how much busier they are and resource constrained they are than the Supreme Court, might nevertheless defer in a lot of those cases. I also understand Loper Bright to allow Congress, if it wishes, expressly to give the agency this sort of power, and the Court leaves for another day any constitutional challenge to Congress letting agencies do this expressly.

Easha Anand:  The other piece of that puzzle is Chevron had been replaced with another doctrine in some ways, the Major Questions Doctrine, which was basically the Court’s idea that if the statute was ambiguous, they assume that Congress didn’t actually want the agency to do anything too big or too sweeping.

Pam Karlan: Do you want to say a little bit about the technology cases that were at the Supreme Court this year?

Jeff Fisher: One was actually two cases in one involving laws from Florida and Texas that sought to restrict the big tech companies like Facebook and YouTube from engaging in certain content moderation on their internet applications.The idea driving those state laws was that the platforms’ algorithms and things like Facebook’s newsfeed were allegedly slanted against conservative speech. So the idea was to try to force the platforms to disseminate a more neutral and diverse set of point of views. This was really the first time the Supreme Court had applied the First Amendment to social media, and so that’s maybe why that was such a big deal. In the Riley case our clinic handled years ago, we asked the Court to apply the Fourth Amendment to cell phones for the first time, and what the Court said there is, “Look, digital is different. You can’t just treat a cell phone just like another container, so all of our past cases don’t necessarily apply.” What is interesting about the tech cases this term is the Court kind of did the opposite. In an opinion by Justice Kagan, she said, “Look, this is just the newest form of speech in our society and all the old rules about editors and publishers and content selection apply. So, therefore, Facebook and Youtube and other companies like that have full First Amendment rights, and you cannot tell private actors that they need to have greater viewpoint diversity or anything else. They get to choose what speech they present and how.” I think that was maybe the biggest thing the Court did this term, and it sets the stage for probably many more cases to follow down the line about the social media platforms. 

Easha Anand: Trump v. United States is probably the biggest case of the year. Special Counsel Jack Smith is criminally prosecuting former, and maybe future, President Donald Trump for various conduct in connection with his attempts to overturn the results of the 2020 election, and the Court, in an opinion written by the Chief Justice, basically says, “Presidential acts are divided into three categories and whether or not you can be prosecuted depends on which category you’re in.” 

Category 1 is the core stuff, what only the president can do, and no one can interfere with, such as pardoning people, vetoing legislation, recognizing foreign governments. As to that category, he can’t be prosecuted at all. Category 2 is the official acts that are not at the core of the presidency, but within your authority as president. For that, you get at least presumptive immunity. So, maybe you can be prosecuted, but certainly not if there’s any danger that the prosecution is going to intrude on the prerogatives of the Executive, and in fact, the court says, “We’re not going to tell you the answer, but it’s possible you can’t be prosecuted at all.” And then bucket three is the unofficial or private stuff, what you’re doing as an ordinary citizen and not as the president. Working through the allegations about trying to overturn the 2020 election, the Court says, “Trump tried to tell the DOJ to investigate different states and cast doubt on the results of the election, that’s absolutely immune, no prosecution. That’s core presidential stuff. Conversations with the vice president about trying to get him not to certify the results of the election, that’s in that bucket number two. It’s official but not core. Then the Court remanded for the trial court to try to figure out whether the other stuff– like talking to state officials and private parties to try to organize fraudulent slates of electors, or Tweets levying false election fraud claims– whether that was official or private, to figure out whether it can be prosecuted. And by the way, Trump gets one additional degree of protection, which is, if there’s immunity for something, you not only can’t be prosecuted for it, a prosecutor can’t use that conduct as evidence.

Justice Thomas concurs and says, “Agree with all of that. I’ve got one additional problem with this prosecution, which is that Jack Smith was not constitutionally appointed. The special counsel shouldn’t have been able to bring this prosecution in the first place.” A short time afterward, Judge Cannon, who’s the judge in Florida overseeing a different Trump criminal case that’s the case about his mishandling of classified documents—dismisses the indictment saying, I think Justice Thomas is right. I think that Jack Smith was not constitutionally appointed as special counsel, and therefore, he can’t bring this prosecution at all.

Pam Karlan: It seems like not since the heyday of really creative death penalty lawyers has any defendant been able to delay so many proceedings, throwing up so many roadblocks to actually getting the case adjudicated.

Easha Anand: Even before issuing this opinion, prescribing this complex, multi-part inquiry that will surely take some time to work through, the Supreme Court had taken an extraordinarily long time to adjudicate this case, given the time sensitive nature of it. Contrast this with the way that the Court handled, for instance, Trump v. Anderson, the case about whether Trump could be on the Colorado ballot, or the way it handled cases like the OSHA test or vaccinate mandate last term. Or the way it’s historically handled cases of electoral significance like Bush v. Gore. You’ll see that this case took many, many times as long to adjudicate.

Jeff Fisher:  I think the real question in the Trump cases for me is: what’s motivating the Court to, in effect, confer such broad protection on the former president himself, and to the office going forward.  I think in the two Trump election cases, the January 6th case and the Colorado case, in both these instances where the conservative majority is saying, “We don’t want any part of this. We don’t want to be involved in choosing sides in these battles.” Now, of course, by choosing not to participate, you are in effect still making a very meaningful choice, and that’s maybe even more true in the Trump situation. But that seems to me the through line of the Court thinking to itself, “You know, we don’t want to get sullied into this business, and “we’re also worried that going forward, if we did, especially on the January 6th prosecution, that there’s going to be a tit for tat, and so the next president, whether it’s President Trump or whoever it may be, is going indict Joe Biden and all the way down the line,” It is so strikingly different from past courts who saw their role as stepping in to protect democratic values when they were otherwise breaking down. That’s striking to me. 

Easha Anand: I think there’s an interesting strategic decision on display between Justice Barrett and Justice Sotomayor that replicates in a lot of Supreme Court decisions. They’re both obviously very worried about the breadth of the majority opinion, right? But they take very different tacks. Justice Sotomayor takes the tack of trying to call it out to the public.  She says, “Read what the majority is saying. It’s basically telling you, you can use SEAL Team 6 to assassinate a political rival and you are immune from prosecution with fear for our democracy.”  Justice Barrett takes the opposite tack. I think she’s just as worried about the majority’s breadth, but formally, she says she’s concurring in the opinion. She says, “I’m concurring in the opinion, but I would frame things a little bit differently.” And she goes on to lay out a test that would immunize a much smaller subset of conduct than the majority opinion would immunize. That’s the other strategy that Supreme Court justices have used throughout time—rather than dissenting and calling out the breadth of the majority, they concur and say, “Look, I understand the majority should actually be saying this much narrower thing,” So time will tell which strategy proves to be more effective, but it was interesting to see these two justices, who clearly share some of the same fears about what the majority is doing, take these very different tacks to try to respond to that.

Listen to the Podcast

Jeffrey Fisher has argued 48 cases in the Court, on issues ranging from criminal procedure to maritime law to civil and human rights. Professor Fisher’s successes include the landmark cases of Crawford v. Washington and Melendez-Diaz v. Massachusetts, in which he persuaded the Court to adopt a new approach to the Constitution’s Confrontation Clause; Riley v. California, in which the Court for the first time applied the Fourth Amendment’s protections against unreasonable searches to digital information on smartphones; and Ramos v. Louisiana, which established that the constitutional right to a jury trial requires a unanimous verdict to convict. He has handled other pathmarking cases involving the Individuals with Disabilities Education Act, the Sixth Amendment right to an impartial jury free from racial bias, and the Eighth Amendment protection against cruel and unusual punishment. Professor Fisher was also co-counsel for the plaintiffs in Obergefell v. Hodges, in which the Court held that the Fourteenth Amendment guarantees same-sex couples a right to marry.

Easha Anand joined the Stanford Law School faculty in 2023 as an assistant professor of law and co-director of the Supreme Court Litigation Clinic. A former Supreme Court and court of appeals clerk, Easha joins Stanford from the MacArthur Justice Center, where she served as Supreme Court & Appellate Counsel and litigated police excessive force, prison conditions, habeas, and other criminal defense and civil rights cases around the country. She was the Edwin A. Heafey, Jr. Visiting Professor of Law in the Stanford Supreme Court Litigation Clinic in 2022.