Inside the Supreme Court’s Key 2026 Decisions

Jeff Fisher: I look at this term and I see in many ways the fruition of what I think of as a traditional conservative legal movement over the past 20 or 30 years: The agenda to revitalize the Second Amendment, to curb race consciousness in admissions and voting and other areas, to enhance religious liberty, to curb regulation in various ways.

And so one thing I’m digesting is just how successful that movement has been with this Court and wondering where it might go now with a lot of those major goals accomplished.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. Today, I’m talking with my colleague, Jeff Fisher.

Jeff’s a professor of law here at Stanford and co-director of the Stanford Supreme Court Litigation Clinic, and we’re going to talk about this term at the Supreme Court. It used to be, you know, on the last…there was an actual last day of the term, and you could be pretty sure you weren’t going to hear very much more until the first Monday in October when the court came back.

But I think now the court kind of stays in session year-round, but they’ve now completed issuing opinions in all of the cases on which they heard oral argument this past term. So I guess the place to start, Jeff, is how would you characterize this term at the court?

Jeff Fisher: Well, Pam, it’s always great to talk with you, and I’m super excited to hear what you think about all this as well.

And as I guess as we record this, we’re just digesting this morning’s final batch of decisions. But I think there’s two things that jump out at me on a high level about the term. One is the obvious clash between the court and President Trump over executive power, and the court issued, I guess fair to say, a mixed set of decisions on that front, which I’m sure we’ll talk about.

But I think that is, on the one hand, quite dramatic and unusual over the course of our nation’s history to have the court and the president clashing in this way, but on the other hand, kind of expected in a world where most substantive policy now comes out of the White House instead of Congress. So, you know, I’m sure we’ll talk more about that.

The other thing, though, and I wonder whether this is just as getting lost a little bit more in some of the media coverage of the court because President Trump takes up so much attention, is I kind of look at this term, and I see, in many ways, the fruition of the…what I think of as a traditional conservative legal movement over the past 20 or 30 years.

You know, the agenda to revitalize the Second Amendment, to curb race consciousness in admissions and voting and other areas, to enhance religious liberty, to curb regulation in various ways. And so one thing I’m digesting is just how successful that movement has been with this court and wondering where it might go now with a lot of those major goals accomplished.

Pam Karlan: Yes. I think those are two things that, that struck me about the term as well. The other thing that struck me about this term is there’s a lot of tension among the justices. I mean, there are a lot of opinions kind of going back and forth and sniping at each other. I mean, we saw that early on in the term in the tariffs case where you had, you know, Justice Gorsuch kind of mansplaining major questions doctrine, and you saw that in today’s decision in the birthright citizenship case with the back and forth really between Justice Jackson and Justice Thomas over what the meaning of the Fourteenth Amendment, the original meaning of the Fourteenth Amendment is.

So you’re seeing a…This is not a court on which there’s a lot of consensus, and I think there’s a lot of…there’s a lot of mistrust or distrust of the kind of bona fides of other members of the court in various ways. And that strikes me as  different. The other thing, of course, about this term at the court is that the court had to issue a bunch of merits decisions on issues that they had kind of punted or pushed away last term, the birthright citizenship being the biggest one, but also the Lisa Cook issue and the Humphrey’s Executor issue and the like.

So a lot going on this term. I don’t know one thing that got lost, I think, in most of what I’ve heard of the coverage of today, which is mostly about birthright citizenship and the like, is the court’s major Fourth Amendment decision. And that’s obviously an issue that you focused on a lot. So I wonder if you want to say a little bit about geofencing before we get into some of the stuff that people have been more focused on.

Jeff Fisher: Yes, good point. It’s great to bring that case up because it’s not, it’s not a political case in the way so many of these others have that valence. And for that reason, I think the court is a little bit more interesting in these cases sometimes. So this case continued a path the court set down years ago in one of our own clinic cases called Riley and continued on in another case called Carpenter, of basically applying the Fourth Amendment to digital devices and information, in particular location history in this particular new case.

And so I think the court is now fair to say firmly committed to applying the Fourth Amendment in a meaningful and even robust way in the digital world where all of our information is both kept on these devices that are readily obtainable by the government absent a warrant and information we share with third-party providers like our cell phone service provider or Google.

And so I do think it is quite significant, and the court’s idea is, is that because of new technology the government has a greater ability than ever to get into the intricacies of our private lives, and the court sees the purpose of the Fourth Amendment as being served by applying it in these new contexts even if strictly speaking the doctrine doesn’t quite work.

So that’s kind of an interesting way to think about it. Often the court is a…is very allergic in the statutory interpretation context and even in the constitutional context to getting behind the broader purpose of a law and, and, and trying to carry that forward in new circumstances, but it seems far less inhibited in the Fourth Amendment.

And maybe that’s just because the Fourth Amendment uses the loose word reasonable, but I still find it kind of interesting and I like where, I like that the court’s doing it, but I’m not sure everybody else would.

Pam Karlan: I sometimes wonder whether part of the reason the court is doing that here is they understand this because they all have cell phones.

Right? And so if they think to themselves, well if the…because I mean, the famous example of this was in the case that involved putting the locator beacon under…underneath the car at which the chief justice said, “Well, if you can do this to this guy, could you put one of these devices on my car?”

And Michael Dreeben, who was the deputy solicitor general had to say, “Well, yes, we could,” at which moment you knew where the court was going to go.

Jeff Fisher: I think that’s a great point. The court…when the court can imagine itself in the situation of one of the litigants it’s immediately a different case.

Pam Karlan: Yes. And the Fourth Amendment is that area, is that area for them.

Jeff Fisher: Especially on these issues, absolutely.

Pam Karlan: Yes. So you had divided the court’s kind of big ticket cases into two buckets, the sort of traditional conservative movement bucket and the Trump agenda, if you will, bucket. And there, there’s a little bit of overlap between-

Jeff Fisher: Yeah.

Pam Karlan: …those two. But maybe the place to start is with the kind of traditional conservative movement docket. I mean, earlier on in the term in Louisiana against Callais and then in the repeat of Milligan up at the Supreme Court, the Alabama case, we saw the Supreme Court has really now gotten to the point, and the campaign finance case I think today is another example of this.

They’ve gotten to the point where they are just not going to police the Democratic process very much. They’re going to leave that to the states to do. They’re going to allow unlimited amounts of money to move into the political process in a bunch of ways, and it seems like they’ve really kind of gotten to the point where there’s not much more they could be doing in these areas.

Jeff Fisher: Right. And Rucho, where the court said, “We’re not going to police partisan gerrymandering,” is the other piece of this puzzle. And then obviously this is your turf more than mine, so I’m more interested in your views, but it seems like I don’t know what’s left. I think Justice Kagan says today there’s a remnant of a remnant left of campaign finance laws.

And so maybe they’ll go after that, that last little sliver of a nugget. But I think it’s hard to know what’s next in that category. You know the thing that I’ve wondered, Pam, and maybe you want to say some words about the voting cases themselves, but I’ve seen some people writing about Callais and wondering whether that portends a bigger attack on disparate impact laws more generally. So maybe that would be somewhere that we might look for future challenges.

Pam Karlan: Yes and of course there’s just been an opinion from the Office of Legal Counsel, which is if you kind of think about the Supreme Court of the executive branch…it issues kind of constitutional rulings within the executive branch suggesting that all of disparate impact law is unconstitutional precisely because it’s too race-conscious.

And do I think the Court’s likely to go there? It’s been a major kind of piece of the conservative legal movement for quite a while now. If you go back to the 1990s and the Ricci case, it’s been a…this argument that, you know, I think Justice Scalia used the phrase, “The evil day,” you know, “The evil day is coming where we have to confront all this.”

Jeff Fisher: Sandoval was kind of one of those cases.

Pam Karlan: Yes, Sandoval is like that as well. So I think disparate impact theory, there are a bunch of justices who would like to get rid of it. One of the things that I think might make that difficult in a weird way for them is that Title VII, for example, which is the leading disparate impact statute, doesn’t just forbid disparate impact on the basis of race, but it also forbids disparate impact on the basis of religion. And this is a court that very much wants to protect religion claims.

Jeff Fisher: Yes.

Pam Karlan: And so, you know, it’d be interesting to see how they, how they negotiate coming up with a you can’t have disparate impact for race claims, but you can have it for…

Jeff Fisher: Right.

Pam Karlan: …religion claims.

Jeff Fisher: Right, and because as a constitutional matter, those two areas of law are separate, where the Smith doctrine prohibits, at least stands in the way formally of the court extending disparate impact to religion claims.

Pam Karlan: Yes.

Jeff Fisher: So it’s interesting how they’re tied together on a statutory level. That would be interesting.

Pam Karlan: Yes, it’ll be interesting to see. But I think, you know, one case that I think, I don’t know how much it actually surprised people, was the Watson case, which is the case about whether states can count ballots that are cast and postmarked by Election Day, but don’t arrive until after that.

And that was a five to four decision with the three more liberal justices plus Justice Barrett writing it, and the chief justice. And one of the things, of course, there, and I think this is true also with the citizenship case and, and maybe with a couple of these other cases is 10 years ago they would not have been five to four cases.

Jeff Fisher: Yes.

Pam Karlan: 10 years ago, I think it would’ve been close to unanimous that, of course, the states have been counting these ballots that come in after Election Day that are cast by mail. They’ve been doing this for decades, if not for a hundred years with regard to, you know, military ballots and the like. And no one had ever assumed that there was any problem with this.

But in recent years, you know, and Justice Alito’s dissent in Watson really takes up Donald Trump’s agenda, lock, stock, and barrel up. There’s likely to be fraud, and it really did kind of wonder why is there likely to be more fraud in a ballot that’s postmarked by Election Day and arrives two days later than one that’s postmarked by Election Day and arrives on Election Day?

I just… I was kind of mystified as to why he thought one of those was likely to be more fraudulent. But this goes back even to the voter ID cases, and they’ve taken a voter ID case for, you know, citizen…proof of citizenship case…

Jeff Fisher: Right…

Pam Karlan: for next term already. Is this kind of rise of a kind of conservative, “There must be fraud out there in the election system”?

Jeff Fisher: Right. Well, I’m glad you brought up this case. I think it’s super interesting. It’s the one case the Republican Party lost this term. And I mean that as the litigant who brought the case. I think on the fraud and angle of it, you know, you’re better positioned than I am. Perhaps the idea is, is once you get past election day and know how the vote is shaking out, there’s a greater incentive.

Who knows? But I think the two things that are interesting about that case are, one, it is…it is a case where the chief justice and Justice Barrett broke from the other conservatives. And so this is to me is an example of a Trump case, not a Republican…

Pam Karlan: Not a traditional…

Jeff Fisher: Not a traditional. Yeah, I shouldn’t have said Republican.

Not a traditional conservative movement case. And so that’s one way to notice that some members of the court seem more committed to the Trump agenda than others, and I think we see that in other cases we’ll probably talk about. And then the other thing, I wonder whether you noticed this or had a reaction to it, but I thought there was a super interesting back and forth about the usefulness of tradition and you know…sort of history with a lowercase H, not founding era history, but just kind of the way things have gone.

And I think there, you know, the court has been in many areas of the law, the Second Amendment most notably, trying to interject more and more of that approach to deciding cases, and I thought it was so interesting to have Justice Barrett, I think if I’m remembering this…is this the case I’m remembering where Justice Barrett says “Just because we’ve done something for a while doesn’t mean that that’s what the law requires,” you know, that we may have been doing it for reasons that had nothing to do with the law.

And that’s the first time I’ve seen…her stake had a different position than, say, Justice Kavanaugh or Justice…for example, who seems more willing to say, “Look, if I see that going on in history, I’m just going to follow it,” and it doesn’t require nearly kind of proof that everybody thought they were doing it because of some legal requirement.

So there’s kind of a different way to take that into consideration, which I thought was really interesting in that case.

Pam Karlan: Well, and it…that brings us to, you know, one of the biggest pieces of the Trump agenda, which is the birthright citizenship case, where both Justice Alito and Justice Kavanaugh are doing this kind of living constitutionalism point in a way, if you think about it which is…

Jeff Fisher: Yeah.

Pam Karlan: They say, “Oh sure, at the time of Wong Kim Ark there was just this limited group of exceptions to birthright citizenship, but, you know, times have changed, and we ought to be thinking more broadly about, you know, now we have all of this unwanted immigration into the United States, and we have people who can get on planes and yada, yada.”

And it was kind of fascinating to see that and the…

Jeff Fisher: Yeah.

Pam Karlan: …and then the Second Amendment Hawaii case, and how do you want to use the Reconstruction-era history. That’s bad his…you know, bad history in the sense that we no longer agree with those positions. I think you’re right that this history and tradition stuff is so plastic.

Jeff Fisher: Well, I think that the birthright divide amongst the court members was really particularly interesting in that way. Like, I’m not sure if I would think Justice Alito and Kavanaugh would really say they’re originalists, at least not to the level of some of their other colleagues. And interestingly, Justice Gorsuch who dissented on temporary visitors would’ve agreed with the…with the plaintiffs as to and did agree with the plaintiffs…

Pam Karlan: Yes.

Jeff Fisher: …as to people who are here unlawfully and have children. And so he kind of peeled off exactly on that point from an originalist perspective, so I thought that was quite interesting and noteworthy as well.

Pam Karlan: Yes. I just, you know, watching how the justices use history now is…it just seems like it’s becoming more and more of a fig leaf.

Jeff Fisher: Yes, I mean, I think that…I was thinking about this more generally today when I read some of the other cases too, in that we have cases, some cases where the Court still does the sort of traditional strict scrutiny or some other forms of means-ends testing where they walk through you know, we have a constitutional, potential constitutional problem here, so let’s see if the government has a good enough reason for what it’s doing, and if there’s you know, some other way to do it without impinging on constitutional values.

And that’s kind of the traditional two-step. And the thing that strikes me about that, maybe this is getting at your point, Pam, is even laypeople can read those decisions and hear them reported and kind of get a pretty quick sense of whether they agree or disagree with the court’s reasoning. I mean, it’s kind of transparent in that sense.

It’s like the values that are driving those decisions are kind of laid out for the public. You know, they’re not pure policy values, but they’re legal values that have that kind of a flavor to it. But when you do these battles about history and tradition, about whether Rhode Island in 1822 had this kind of law or New York in, you know, 1850 had some other kind of law, and how you sort of relate that law, whether it was enforced or not, to the kind of law you have now —the public’s kind of left on the sidelines, like with no real way to judge who’s right or who’s wrong about these debates.

And I guess if that’s really what’s driving the debate for some justices and they really feel strongly about it, I’ll give them a little bit of slack. But I don’t think that’s true all the way down the line, and some of the justices are using history and tradition kind of as a portal into policy analysis, like means-ends scrutiny.

And there I think there’s a real problem because it’s just not as transparent to the public and to anyone else who cares about the law what the court’s really doing and why they’re doing it.

Pam Karlan: So one place where the Trump agenda and the conservative agenda really met, I think, is in Trump against Slaughter, which is the case about whether the president can fire for any reason or no reason at all commissioners on these major so-called independent agencies, things like the Federal Trade Commission, the Federal Communication Commission, National Labor Relations Board, and the like.

And there I think it was predictable. We sort of knew what was coming because the court had chipped away for years at the Humphrey’s Executor argument. But the court decided that case, and then the same day came down with a decision essentially saying that Lisa Cook, who’s a governor on the Federal Reserve Board, could stay in her position unless and until the president was able to fire her for cause.

What do you make of the unitary executive theory, and how far down do you think it goes? The way the case is written, it’s about, well, of course, the president has to be able to fire the commissioners on the EEOC. But how far down does the unitary executive theory go in the president’s ability to fire people in the executive branch and in these agencies, do you think?

Jeff Fisher: Great question. Let me say a couple things before I get to that. One is I should just sort of say for the listeners that our clinic did a brief in that case, so I supervised a group of students and we worked with members of Congress to, in a sense, defend Congress’s law and the FTC Act and others that were at issue there since the Trump administration, which would usually defend a law if Congress was, was actually attacking it.

So we had a dog in the fight just…

Pam Karlan: Yes.

Jeff Fisher: …just to be clear. But I think the couple of things about that decision that I found troubling, one is that this was a stare decisis case. In other words, should the court overrule precedent? So the court had looked at this question before and unanimously come out the other way.

And even during this more recent revolution you described, Pam, Chief Justice Roberts admitted that the Constitution was silent on the president’s removal power, so it’s kind of a structural and interstices kind of argument. In that kind of a scenario, boy, you’d think the court would have a little more respect for the prior views of not just the Supreme Court, but of the political branches over the years of reaching this, you might think of it as a compromise, and just letting the political process take care of this problem as it might.

So, it’s a very, very muscular use of the court’s power that we saw in this case. You know, the second thing is this is an…when you talk about Lisa Cook, that brings me back to the point I was just making a moment ago, which is it’s hard for me to understand, and I’m not alone here, Justices Thomas and Barrett said the same thing, how the Fed can be any different from all these other independent agencies.

The court waived a couple paragraphs of history of the first and second United State…Bank of the United States which give a sort of rough analogy, but boy, that’s a long way from a carve-out to a…

Pam Karlan: Yes, I…

Jeff Fisher: passionate as the court…

Pam Karlan: Yes.

Jeff Fisher: …thought that again, it had to overrule precedent to announce and everything else in the opinion sure seems at odds with that.

So you just get the whiff of the sense that the court is thinking, again, on policy grounds that the Feds ought to be treated differently, not on political, not on constitutional grounds.

Pam Karlan: I think it was pretty close to saying it’s policy grounds when they talk about the importance of the perception of independence and the like…

Jeff Fisher: Yes.

Pam Karlan: …which just doesn’t seem all that different, at least to me, doesn’t seem all that different for the Fed and for, say, the Merit System Protection Board.

Jeff Fisher: Right. There’s any number of other nuclear energy or as you said, communications and media or any other number of regulatory areas where you might think independence is enormously important.

And it just becomes, I think, a value judgment as, as how that stacks up against monetary policy. So yes, I find that very frustrating. Can I cheat a little bit, Pam, and say…

Pam Karlan: Absolutely.

Jeff Fisher: Like I don’t know I’m guessing you have thought more than I have about how far this goes down to you know, non-principal officials given your time in the government.

Pam Karlan: Yes.

Jeff Fisher: So I’d be super, I’d be really interested to hear your view on that.

Pam Karlan: Yes, I mean, I, I have the view on that that’s a little bit like your point about Justice Thomas and Justice Barrett’s saying we don’t exactly see all this big difference between the Fed and, which is…

Jeff Fisher: Yeah.

Pam Karlan: I don’t see all this much difference between the principal officers who are nominated by the president in the first place, and the Constitution does have stuff in the Appointments Clause about whether those people have to be appointed by the president or can be nominated by…

Jeff Fisher: Yeah.

Pam Karlan: …heads of departments or the like. I don’t see a principled explanation for why civil servants are entitled to protection if you have a really muscular version of the unitary executive. Because it’s not as if when the president tells, like, the head of the FCC to block a merger between, or the FTC to block a merger between two communications companies, that the only person who’s involved in blocking that is the commissioner.

There are all of these lawyers below that, and the person who writes the checks, and the person…

Jeff Fisher: Yeah.

Pam Karlan: And so I do kind of wonder if you take the unitary executive theory as seriously as some of the members of the Court seem to think you have to, why the president isn’t entitled to fire assistant US attorneys and fire…

Jeff Fisher: Right.

Pam Karlan: …you know, staff lawyers at the FCC and the like, as well as, as well as the people at the top. And yet I have this sense the Court doesn’t think that the civil service is unconstitutional.

Jeff Fisher: I don’t know. I mean…

Pam Karlan: I can’t figure out why.

Jeff Fisher: Yes I’m fascinated because in some ways you think it’s even more perverse for some, you know, underling to be able to thwart the president’s power.

I mean, President Trump used to complain about the deep state. That seems even more perverse than letting somebody with you know, maybe approved by Congress or the like speak up and do something.

Pam Karlan: Yes, so I do kind of wonder about where we end up on the, you know, how far down the unitary executive goes.

I mean, certainly Donald Trump is attempting to do a bunch of stuff there with the schedule, I think Schedule F or whatever it is, to change a number of people who are currently civil servants who are protected by for-cause removal into people who can be fired by…

Jeff Fisher: Yeah.

Pam Karlan: …an administration, by an administration at will.

We haven’t mentioned all…

Jeff Fisher: Can I say one other thing about that?

Pam Karlan: Absolutely.

Jeff Fisher: I wonder whether you mentioned there the break, not break the Court gets over the summer now. You know, I wonder whether this could be a area of a lot of shadow docket energy very, very quickly if Trump starts firing a lot of people.

I think that’s just something to watch.

Pam Karlan: Yes, I think that’s right that, you know, I think the Supreme Court has emboldened him.

Jeff Fisher: Yeah.

Pam Karlan: I think those cases, the cases we’ve talked about have emboldened him. The immigration cases, which we haven’t discussed, embolden him, the temporary protected status case in particular.

I have to say I thought that that case was particularly shocking in some ways because Justice Alito’s opinion for the court just completely sidelines the fact that Donald Trump made one racist comment after the next about Haitians who are in this country on temporary protected status. You know, they eat dogs, they’re poisoning the blood of the country.

You know, they come from a shithole nation and everything. Why can’t we have more Norwegians and Swedes? And it was almost as if, you know, he said, “Oh, you know, that’s just…that’s just talk.” And yet whenever he sees even the slightest criticism of culturally conservative religious people. He sees bigotry of a kind that the court has to race in to stop.

Jeff Fisher: Well, I can’t improve on that point. I think it’s just it’s odd to me as well how some members of the court, whether they call it giving him the benefit of the doubt or airbrushing over potentially, you know, very, very serious comments I don’t quite understand it either. I think it was … I think there’s two things that the court hasn’t figured out, at least many members of the court haven’t figured out what to do in the Trump era.

One is what to do with these tweets and bombastic sort of informal, offhand, but very provocative remarks that the president makes, sometimes on almost a daily basis because it’s just so unprecedented for, from a US president. And similarly, I think the court has been struggling to figure out what to do about certain positions and representations the Trump administration makes in certain cases essentially saying black is white or the sun, you know, sets in the morning and rises in the evening.

And the Trump administration has made the argument a few times, well, if the president decrees a certain fact, you can’t look behind it, for example, in these…

Pam Karlan: Yes.

Jeff Fisher: …some of these immigration disputes and the like. And I think the court is just, again, puzzled and struggling with what, if anything, to do about that, and probably if push comes to shove, they would have very different views, as we saw in the case, in the Haitians case.

Pam Karlan: Yes. It is striking. I mean, and this goes back even to Trump 1 and the…Hawaii, you know, Trump v. Hawaii and the Muslim ban, or the irregularity in the census case in Trump 1.

Jeff Fisher: Yep.

Pam Karlan: But this time around, I think it’s even…it’s even more striking. I mean I thought the apotheosis of this in some sense, and, and the chief justice gives this the back of his hand in the Lisa Cook case, is saying Lisa Cook received notice and an opportunity to be heard because the president tweeted that she was going to be fired for, you know…she was going to be fired for this mortgage stuff, and she didn’t do anything about the tweet.

I mean, do you remember that argument? Which I…

Jeff Fisher: Oh, that’s the argument, yes.

Pam Karlan: That was the argument…

Jeff Fisher: Right, yes.

Pam Karlan: And you know, and the chief justice kind of gives that the back of his hand.

Jeff Fisher: Right.

Pam Karlan: No, that’s not, you know, that’s not…But, but the fact that you can get the solicitor general of the United States up there to argue that.

Jeff Fisher: Yeah.

Pam Karlan: Just is really striking. And I think, you know, we’re going to see more of this because as you said about the kind of summer —I think Donald Trump is going to come out of this term slightly chastised but remarkably emboldened by the Supreme Court. Is he…didn’t get everything he wanted…

Jeff Fisher: Yeah.

Pam Karlan: He got…he got nailed on two of his signature policies, the tariffs early on in the term, and then birthright citizenship.

But in terms of his ability to do what he wants as opposed to have a policy in there…

Jeff Fisher: Yeah.

Pam Karlan: …he got most of what he wanted.

Jeff Fisher: I think that may well … I mean, we’re starting to talk about politics a little bit more than law, which I’m not an expert in, but I wouldn’t at all be surprised if you’re right, kind of right and then some.

I mean, if you would’ve…both on tariffs and Lisa Cook, the court said, “No, not this way, but maybe some other way,” so they left him plenty of running room to at least try other things…

Pam Karlan: Yes.

Jeff Fisher: which may or may not succeed. And on birthright citizenship, he’s, I guess as of this morning, arguing for Congress to pass a law, which is what Justice Kavanaugh would have opened the door to let happen.

Now, five members of the Court have voted a…you know, that the Constitution would stand in the way of a new law. But maybe that, again, maybe President Trump isn’t that unhappy with that result, because it gives him a jawbone opportunity, and boy, he’s one vote away on the Court perhaps, at least to partially getting what he wants.

And he’s got a good political issue in the meantime. I don’t know.

Pam Karlan: Yes. So any other cases that you want to bring up from this term?

Jeff Fisher: Actually can I—let me bring up a case I’m curious to get your reaction to, which is the transgender athlete case today.

Pam Karlan: Yes.

Jeff Fisher: Transgender rights is an area where the Court has been active lately, and the way the Court decides the case is to say that state laws that ban transgender girls from participating on girls’ sports teams is because, I…at least the way I read it, is because distinctions based on sex are subject only to intermediate scrutiny, not to strict scrutiny.

And so therefore, even if you have some transgender girls that have none of the advantages that the states are generally concerned about that’s okay, because the fit doesn’t have to be as tight as it would have to be if you were dealing with something like race discrimination or maybe religious discrimination.

And I wonder, boy, that’s again, a bit of a…swerve if not a U-turn, as Justice Sotomayor points out in her dissent from, from where Justice Ginsburg had been leading the Court for many years to really…I remember doing, having an oral argument one time where she pointed out to me at the podium how sex discrimination and race discrimination were viewed almost identically these days by the Court.

And, I wonder whether we come out of this case, not just whatever the implications are for transgender people, which are obviously serious, but more generally, I wonder if you think this signals a bigger change in how the Court approaches sex discrimination.

Pam Karlan: So I don’t know that I do, and part of the reason is that athletics was treated differently in Title IX than almost anything else.

Jeff Fisher: Yeah.

Pam Karlan: If you think about Title IX, it says you can’t discriminate on the basis of sex in any federal, any educational institution that receives federal funds, which is every public K through 12 school in the country and all but about five universities or colleges in the country. But they’ve always allowed, as part of the statute itself, single-sex dorms, single-sex bathrooms, single-sex athletic teams.

And if you think about Title IX…Title IX is the reason why we have…

Jeff Fisher: Right.

Pam Karlan: …girls and women’s athletic teams getting…

Jeff Fisher: Do you think that kind of informs how we…

Pam Karlan: And I think that informs…

Jeff Fisher: and the Constitution view?

Pam Karlan: That is I would have thought, like for example, if this had been a case not about athletics, but had been a case about, you know, a school where a middle school, say, where the boys all go to shop class and the girls go to home ec class.

And they say, “A transgender girl cannot do home ec, she has to do shop.”

Pam Karlan: I think the court would’ve come out the other way.

Jeff Fisher: Interesting.

Pam Karlan: And I think some of what’s going on here is this notion that the entire point of women’s sports is to give women an opportunity to play sports that they would not have if you simply said we’re going to have two basketball teams.

Jeff Fisher: I see.

Pam Karlan: Or we’re going to have two volleyball teams. That what you’d have is one team of all men and then another team of all men. And I think that is a lot of what was driving the court here.

Because the court came out six-three the other…the other way in Bostock on can you discriminate in employment in just saying…

Jeff Fisher: Right.

Pam Karlan: I’m not going to hire a transgender…

Jeff Fisher: Right.

Pam Karlan: … woman to be a funeral home…

Jeff Fisher: Right.

Pam Karlan: … director or the like. And so I wonder how much…

Jeff Fisher: Okay …

Pam Karlan: …does the sports nature of this…

Jeff Fisher: I think that’s a great point. But Justice Gorsuch points this out in his concurrence, I guess it is.

Pam Karlan: Yes. After saying not one word at oral argument….

Jeff Fisher: I know.

Pam Karlan: …about any of this.

Jeff Fisher: But he does make the distinct…as the author of Bostock makes…

Pam Karlan: Yes, as the author of Bostock …

Jeff Fisher: …here describing. That I do think…And Justice Kavanaugh, as, you know…

Pam Karlan: As girls basketball coach…

Jeff Fisher: the sports lover on the court. Yeah would have a…

Pam Karlan: As girls basketball team coach.

Jeff Fisher: Yeah.

Pam Karlan: …has this notion that… you know, this is about protecting girls’ ability to play sports. I do think going forward that you’re going to see some spillover from this and because you’re going to have, again, things like bathrooms and the Gavin Grimm case that you may remember from a couple of years back.

Jeff Fisher: Yeah. But your point reminds me of something we talk about in the clinic a lot, which is sometimes the court speaks in seemingly sweeping ways, but you have to contextualize everything that you’re hearing. Both, you know, which sometimes makes it bigger and sometimes makes it smaller, but you always have to remember the context.

Pam Karlan: And the other context, of course, is that we’ve had this backlash, again in the political process against transgender folks recently.

Jeff Fisher: Yep, yep.

Pam Karlan: And that may be playing out here as well. So I want to thank you, Jeff…for you know…I guess one good thing about the fact that the court, two good things about the fact that the court decides so few cases on the merits now is we can get through almost all of the big ones in a single sitting, and they do less damage than they, than they might otherwise do.

So I want to thank our guest today, Jeff Fisher, for coming on the show.

This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show, and it helps new listeners to discover us. I’m Pam Karlan. See you next time.