At the Buckley Institute’s annual Supreme Court Review, AEI scholar Adam J. White and SCOTUSblog’s Amy Howe review the Court in the age of Trump.
Adam White of the American Enterprise Institute addresses the crowd. (Credit: Buckley Institute)
Michelle Zheng
Managing Editor, The Buckley Beacon
The Supreme Court’s emergency docket, once a sideline of its work, now shapes nearly everything the justices do, SCOTUSblog Co-Founder Amy Howe said during the Buckley Institute’s annual Supreme Court Review Thursday evening.
“I think it’s really hard to overstate how much the emergency docket pervades the court’s work right now,” she told the roughly 60-person audience.
Howe was joined by Adam J. White, a senior fellow at the American Enterprise Institute in Rosenfeld Hall. They walked students through a SCOTUS term dominated by legal questions surrounding President Donald Trump’s tariffs, challenge to birthright citizenship, and voting rights.
The emergency docket, Howe explained, is “an entirely separate, much faster track” in which litigants ask the justices to pause lower-court rulings while cases continue. She said the Trump administration has sought such relief more often in the first 18 months of its second term than in all four years of its first.
“The Supreme Court refers to these decisions as temporary, but they often have pretty long-term effects,” Howe said. She pointed to the White House ballroom, whose construction the justices allowed to continue while the legal challenge plays out.
The pressure has also divided the court. Howe described how Justice Brett Kavanaugh asked publicly, “What else are we going to do?” and how Justice Ketanji Brown Jackson “accused her colleagues of favoring the Trump administration.” Other litigants have followed the government’s lead, including one this summer with “essentially a request for a stay of execution for a dog in California.”
White traced the shift to Alexis de Tocqueville’s 19th century observation that political questions become judicial ones “sooner or later.” He means that the movement of a political issue out of legislatures and into courtrooms is part of a pattern Tocqueville identified almost 200 years ago.
“Sooner or later was the good old days,” White said. Political questions now become judicial cases which reach the justices “two months later, two weeks later, [or] two hours later,” he said. “For the people in the cases, it’s not life and death, but it’s something close to it.”
On presidential power, White said the term’s rulings cut both ways. “Over and over again, does this increase Trump’s power or decrease it?” he said. “And the answer, happily enough, is both.”
Trump lost his tariff case against Learning Resources, an educational toy company, in a 6-3 opinion by Chief Justice John Roberts. Trump also lost Trump v. Barbara over birthright citizenship. But when he fired a Federal Trade Commission member, the court sided with him.
“The court tends to rule in favor of presidents on the ‘who’ questions but against presidents on the ‘what’ questions,” White said.
Howe noted the citizenship ruling was 5-4. “It wasn’t quite the ringing endorsement that many people expected it to be,” she said.
Howe also discussed two election cases. In Louisiana v. Callais, a 6-3 opinion by Justice Samuel Alito struck down a Louisiana congressional map with two majority-Black districts and made Voting Rights Act claims harder to win. “Most map drawers are not going to put this intentional discrimination in writing,” Howe said. In Watson v. Republican Party of Mississippi, a 5-4 court upheld counting mail-in ballots that arrive up to five days after Election Day.
Looking ahead White predicted “a tidal wave of subpoenas and oversight hearings” if Democrats win either chamber of Congress in November. He said pending Second Amendment cases will “put enormous pressure on the court.” Howe agreed the gun cases are hard. “The justices are really trying to put the plane together as they’re flying it,” she said.
In an interview with The Beacon after the event, White said the court’s transgender athlete case “is not going to be the last of the transgender athlete cases, but in some ways, it might be the most clear cut.” The case involved a state barring athletes born male from women’s sports, which he called “a pretty sensible straightforward decision” under Title IX.
Title IX was intended to protect women’s access to sports, White said, and “nobody expected that that law was going to allow” athletes born male to compete against biological females, “Given the nature of sports, where physiological differences are very important for the activity.”
“Harder questions will come when it’s gender and other activities,” he said, pointing to cases outside of sports. He also raised the reverse scenario, in which a state lets transgender women compete in women’s sports. “Will people be able to sue under Title IX and try to prevent that from happening?” he asked.
During the question-and-answer session, Katherine Mirne, a first-year in Timothy Dwight College, asked about prediction markets such as Kalshi, which are fighting state gambling regulators.
“You don’t go to Vegas to gamble anymore,” White said. “You’re doing it on your phone.” He guessed the court would leave “the states free to try to regulate Kalshi one state at a time.”
Elizabeth Steeves, a senior in Grace Hopper College asked about religious liberty precedent, Howe said the justices may let a key 1990 ruling, Employment Division v. Smith, quietly become “zombie precedent.”
Afterward, Mirne called prediction markets “an emerging part of our economy” and said the court’s rulings can affect “our lives very deeply.” Being able to “dissect them and understand where they’re coming from,” she said of the decisions, “is very insightful.”
“It was cool to see Amy Howe and hear all of her insights into what’s happening in this term,” Steeves said.