Professor Jeff Fisher discusses a term marked by major rulings across executive power, voting, and civil rights, and what they signal about the Court’s trajectory

The Supreme Court has wrapped up a consequential term, issuing decisions that could shape executive power, constitutional rights, and the balance between the branches of government for years to come. On a recent episode of Stanford Legal, Professor Jeff Fisher joined host Professor Pam Karlan to dissect and discuss the term’s biggest rulings. Fisher and Karlan co-direct the Stanford Supreme Court Litigation Clinic and are among the nation’s leading experts on Supreme Court litigation and constitutional law, regularly briefing and arguing cases before the Court. 

Their discussion traces how the Court navigated open clashes with President Trump even as it advanced long-standing goals of the conservative legal movement, as well as the Court’s growing use of history and tradition as a tool of constitutional interpretation. Fisher and Karlan also discuss disagreements among the justices and consider how recent decisions may be emboldening the executive branch.

Pam Karlan: How would you characterize this term at the court?

Jeff Fisher: Two things stand out. The first is the clash between the Court and President Trump over executive power. The Court issued a mixed set of decisions on that front, but the confrontation itself is striking. It is unusual in our history to see the Court and the president at odds so directly, although perhaps less surprising at a time when so much policymaking comes from the White House rather than Congress.

The second development has received less attention, in part because President Trump dominates the coverage. This term also reflects the success of the traditional conservative legal movement of the past 20 or 30 years: strengthening the Second Amendment, limiting race-conscious policies in admissions and voting, expanding religious liberty, and curbing regulation. Many of that movement’s major goals have now been achieved, which raises the question of where it goes next.

Pam Karlan: Those two themes struck me as well. Another was the level of tension among the justices. There was a lot of back-and-forth—and at times outright sniping—in the opinions. We saw it earlier in the term in the tariffs case, with Justice Gorsuch’s discussion of the major questions doctrine, and again in today’s birthright citizenship decision, particularly in the exchange between Justices Jackson and Thomas over the original meaning of the Fourteenth Amendment.

This is not a Court marked by broad consensus. There also seems to be considerable distrust among the justices about one another’s reasoning and motivations. The Court was also forced to decide several major questions it had deferred last term, including birthright citizenship, the Lisa Cook dispute, and Humphrey’s Executor.

One decision that seems to have received less attention today is the Court’s major Fourth Amendment ruling on geofencing. That is an area you have focused on extensively. What did the Court decide?

Jeff Fisher: It is an important case, in part because it does not carry the same political valence as many of the Court’s other major decisions. Cases like this can reveal the justices’ instincts more clearly.

The decision continues a line of cases that includes Riley v. California, which came out of our clinic, and Carpenter v. United States. Together, they show that the Court is firmly committed to applying the Fourth Amendment meaningfully—and sometimes quite robustly—to digital devices and data, including location information.

That matters because new technology gives the government unprecedented access to the details of our private lives, whether through our phones or through information held by third parties such as wireless carriers and Google. The Court is treating the Fourth Amendment as flexible enough to protect privacy in those new settings, even when older doctrine does not map neatly onto modern technology.

I find that especially interesting because the Court is often reluctant, in statutory and constitutional cases, to rely on a law’s broader purpose and extend it to new circumstances. In the Fourth Amendment context, though, it seems much more willing to do that—perhaps because the amendment itself turns on what is “reasonable.” I think that is the right approach, although not everyone would agree.

Pam Karlan: I sometimes wonder whether the Court approaches these cases differently because the justices understand the technology firsthand—they all have cell phones. A famous example came in the case involving a GPS tracking device placed under a car. Chief Justice Roberts asked whether, if the government could do that to the defendant, it could also place one on his car. When Deputy Solicitor General Michael Dreeben answered yes, you had a pretty good sense of where the Court was headed.

Jeff Fisher: I think that’s a great point. When the justices can imagine themselves in the situation of one of the litigants, it’s immediately a different case.

Pam Karlan: You divided the Court’s major cases into two broad categories: the traditional conservative legal agenda and the Trump agenda, with some overlap between them. Let’s start with the first. In cases involving voting rights, redistricting, and campaign finance, the Court seems increasingly unwilling to police the democratic process. It is leaving more authority to the states and allowing more money to flow into politics. Has the conservative legal movement now largely achieved what it set out to do in these areas?

Listen to the Podcast

Jeff Fisher: Rucho, where the Court said it would not police partisan gerrymandering, is another part of that story. And as Justice Kagan put it today, campaign finance law may now be reduced to “a remnant of a remnant.” The Court could keep chipping away at what remains, but it is hard to see what major goals are left in this area.

One place to watch may be the voting-rights cases. Some commentators have suggested that Callais could foreshadow a broader challenge to disparate-impact laws. That may be where the next wave of litigation emerges.

Pam Karlan: There is also a recent opinion from the Office of Legal Counsel—the executive branch’s closest analogue to a constitutional court—arguing that disparate-impact law is unconstitutional because it is itself too race-conscious. That argument has been part of the conservative legal movement for decades. As far back as Ricci, Justice Scalia warned that the Court would eventually have to confront what he called the “evil day” when disparate-impact liability collided with the Constitution’s equal protection principles. Do you think the Court is now likely to take that step?

Jeff Fisher: Sandoval was one of those cases.

Pam Karlan: Yes, Sandoval is part of that story as well. I do think several justices would like to eliminate disparate-impact liability. One complication, though, is that Title VII does not prohibit disparate impact only on the basis of race. It also covers religion, and this is a Court that has been highly protective of religious-liberty claims. It would be interesting to see how the justices justify allowing disparate-impact claims involving religion while rejecting them in race cases.

Jeff Fisher: Right. Constitutionally, race and religion are treated under different doctrines. Employment Division v. Smith, at least formally, makes it harder to extend disparate-impact principles to religion claims. That makes the statutory overlap especially interesting: Title VII ties race and religion together, even though the constitutional frameworks are quite different.

Pam Karlan: One case that stood out to me was Watson, involving whether states may count ballots that are cast and postmarked by Election Day but arrive afterward. The Court upheld that practice five to four, with Justice Barrett and the chief justice joining the three more liberal justices. What is striking is that 10 years ago, this probably would not have been a close case. States have long counted timely mailed ballots that arrive after Election Day, especially military ballots, and that practice was widely accepted.

Justice Alito’s dissent, though, largely embraced the concern that such ballots are especially vulnerable to fraud. I found that hard to understand. Why would a ballot postmarked by Election Day and received two days later be more suspect than one received that same day? We have seen similar concerns in voter ID and proof-of-citizenship cases, and the Court has already agreed to hear another proof-of-citizenship case next term. Are we seeing the rise of a broader conservative assumption that election systems are rife with fraud?

Jeff Fisher: I’m glad you brought up Watson. On the fraud question, perhaps the theory is that once Election Day has passed and people know how the vote is trending, the incentive for misconduct increases. But that is speculative.

Two things about the case stand out. First, Chief Justice Roberts and Justice Barrett broke with the other conservatives. That suggests this was less a traditional conservative legal movement case than a Trump-aligned one. Some members of the Court appear more receptive to that agenda than others.

Second, the case featured an interesting debate over the role of tradition—not founding-era history, but simply the way the government has operated over time. The Court has increasingly relied on historical practice in areas such as the Second Amendment. But Justice Barrett seemed to emphasize that the fact that a practice has existed for a long time does not necessarily mean the law requires it; governments may follow a practice for reasons unrelated to legal obligation.

That struck me as a somewhat different approach from justices who are more willing to treat a longstanding practice itself as strong evidence of what the law means.

Pam Karlan: That brings us to one of the biggest pieces of the Trump agenda: the birthright citizenship case. What struck me was that Justices Alito and Kavanaugh seemed to invoke a kind of living constitutionalism. Their point was essentially that, whatever Wong Kim Ark meant in its own time, circumstances have changed—immigration patterns are different, international travel is easier, and the country now faces concerns that did not exist in the same form then.

We saw something similar in the Hawaii Second Amendment case, where the justices had to decide how much weight to give Reconstruction-era history that reflects views we would now reject. It shows how malleable this history-and-tradition approach can be. How do you make sense of the way the Court is using history in these cases?

Jeff Fisher: The divisions in the birthright citizenship case were especially revealing. Justices Alito and Kavanaugh may not identify as originalists in quite the same way as some of their colleagues. Justice Gorsuch, by contrast, took a more distinctly originalist approach. He agreed with the plaintiffs as to children of parents who are unlawfully present but dissented as to temporary visitors. That split was particularly interesting. More broadly, I worry that history and tradition can become a kind of fig leaf. In cases applying strict scrutiny or other forms of means-ends analysis, the Court’s reasoning is relatively transparent. The justices identify the constitutional concern, ask whether the government has a sufficiently strong justification, and consider whether it could achieve its goal in a less restrictive way. Members of the public can usually understand that reasoning and decide whether they find it persuasive.

History-and-tradition analysis is much harder to evaluate. The debate may turn on whether Rhode Island had a particular law in 1822, whether New York had a similar law in 1850, whether those laws were enforced, and how closely they resemble the modern law. That leaves the public with little ability to judge which account is more convincing.

Some justices may genuinely believe that history should control. But others seem to use history and tradition as a route to the same kind of policy judgment that means-ends scrutiny would make more openly. The problem is that the values driving the decision become far less transparent.

Pam Karlan: One place where the Trump agenda and the traditional conservative legal agenda converged was Trump v. Slaughter, which involved the president’s power to fire commissioners of independent agencies such as the Federal Trade Commission, the Federal Communications Commission, and the National Labor Relations Board.

The outcome was fairly predictable because the Court had been chipping away at Humphrey’s Executor for years. But the same day, it allowed Federal Reserve Governor Lisa Cook to remain in office unless and until the president could establish cause to remove her. What do you make of the Court’s approach to the unitary executive theory? And how far down the executive branch does the president’s removal power extend?

Jeff Fisher: I should disclose that our clinic filed a brief in the case. I supervised a group of students, and we worked with members of Congress to defend the FTC Act and other statutes the administration was challenging. So we had a stake in the outcome.

What troubled me most is that this was a stare decisis case. The Court had addressed the question before and reached the opposite conclusion unanimously. Even Chief Justice Roberts has acknowledged that the Constitution says nothing explicit about the president’s removal power. In that setting, you might expect more respect for precedent and for the longstanding judgment of the political branches. Instead, the Court used its power very aggressively to overturn that settlement.

The treatment of the Federal Reserve is also difficult to understand. The Court relied on a few paragraphs of history involving the First and Second Banks of the United States, but that seems like a thin basis for carving the Fed out from the rule applied to other independent agencies. The distinction appears to rest largely on a policy judgment that the Fed’s independence is especially important.

But independence may also be critically important for agencies overseeing communications, nuclear energy, the civil service, and many other areas. Once the Court starts ranking those interests, it is making a value judgment rather than applying a clear constitutional principle.

You have spent more time in government than I have. How far do you think this theory extends beyond principal officers and down through the executive branch?

Pam Karlan: I have much the same reaction. I do not see a principled distinction between principal officers at the top of an agency and the civil servants who carry out the agency’s work below them. The Constitution does distinguish among officers for appointment purposes, but the logic of a muscular unitary executive theory seems to reach much further. When the president directs an agency to block a merger, the commissioner is hardly the only person involved. Lawyers, analysts, and other staff all help execute that decision.

So if the theory is that the president must control everyone exercising executive power, it is hard to see why it would stop with agency heads. Why would the president not also be entitled to fire assistant U.S. attorneys, staff lawyers at the FCC, and other career employees?

Jeff Fisher: That is what makes the question so fascinating. In some ways, it would seem even more troubling, from a unitary executive perspective, for a lower-level employee to be able to thwart the president than for an agency head who was confirmed by the Senate to resist him.

President Trump has long complained about the “deep state,” and his administration is already trying to reclassify some protected civil servants so they can be fired at will. If those efforts lead to large-scale removals, this could quickly become a major issue on the Court’s emergency docket. It is something to watch closely, especially because the Court’s recent decisions may have emboldened the administration.

Pam Karlan: I think the cases we have discussed have emboldened the president. The immigration decisions have as well, particularly the temporary protected status case.

I found that decision especially striking because Justice Alito’s opinion largely brushed aside President Trump’s repeated racist comments about Haitians and other immigrants—claims that they eat dogs, are “poisoning the blood” of the country, or come from “shithole countries,” along with his suggestion that the United States should admit more people from Norway and Sweden.

The opinion seemed to treat those remarks as mere rhetoric. Yet when the Court perceives even a slight expression of hostility toward culturally conservative religious groups, Justice Alito often sees bigotry requiring immediate judicial intervention. 

Jeff Fisher: I agree. Some members of the Court seem willing either to give the president the benefit of the doubt or to airbrush over extremely serious comments.

More broadly, I think the Court has struggled with two recurring problems in the Trump era. The first is how to treat the president’s tweets and other informal but highly provocative statements, which are unlike anything we have traditionally seen from a president.

The second is how to respond when the administration makes factual assertions that seem plainly at odds with reality and then argues that courts cannot look behind the president’s determination. That issue has surfaced repeatedly in immigration cases.

The Court still does not seem to have a settled approach to either problem. And when it is forced to confront them directly, the justices may divide sharply, as they did in the temporary protected status case.

Pam Karlan: Are there other cases that you want to bring up from this term?

Jeff Fisher: Yes, today’s transgender athlete decision. The Court upheld state laws barring transgender girls from competing on girls’ sports teams. As I read the opinion, the key point is that sex-based classifications receive intermediate scrutiny rather than strict scrutiny.

That means the fit between the law and the state’s justification does not have to be as exact as it would in a case involving race discrimination. So even if some transgender girls do not have the athletic advantages the states say they are targeting, the law may still survive.

Justice Sotomayor describes that as a significant departure—if not a U-turn—from the direction in which Justice Ginsburg had pushed the Court’s sex-discrimination jurisprudence. I once argued a case in which Justice Ginsburg emphasized from the bench how closely the Court had come to treating sex and race discrimination.

Do you think this decision signals a broader change in how the Court will approach sex discrimination, beyond its immediate consequences for transgender people?

Pam Karlan: I’m not sure it does, largely because athletics has always been treated differently under Title IX. Title IX broadly prohibits sex discrimination in federally funded education, but it has long allowed single-sex dormitories, bathrooms, and athletic teams. And Title IX is a major reason girls’ and women’s sports exist in their current form.

I suspect the Court might have ruled differently in another setting. Suppose a middle school sent boys to shop class and girls to home economics, and then required a transgender girl to take shop. I think the Court would have viewed that case differently.

Sports present a distinct concern because the purpose of separate women’s teams is to preserve athletic opportunities for women. Without sex-separated teams, many women might have little realistic chance to compete. That appears to have driven much of the Court’s reasoning here.

That also helps explain why this case may be distinguishable from Bostock, where the Court held six to three that an employer could not discriminate against someone for being transgender. Justice Gorsuch, who wrote Bostock, draws that distinction in his concurrence here, and Justice Kavanaugh—who has coached girls’ basketball—also emphasizes protecting girls’ opportunities to play sports.

Still, I expect some spillover beyond athletics, particularly in future cases involving bathrooms and similar questions.

Jeff Fisher: Your point is a good reminder of something we talk about often in the clinic: The Court sometimes speaks in sweeping terms, but its decisions always have to be understood in context. That context can make a ruling broader or narrower than it first appears.

And here, the legal context is inseparable from the broader political backlash against transgender people.

A leading authority on constitutional law, federal courts, and Supreme Court practice, Jeff Fisher’s work at the law school centers on handling cases in the U.S. Supreme Court. He has argued 50 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.