At D.C. Bar Preview, Experts Examine Upcoming Supreme Court Battles

At D.C. Bar Preview, Experts Examine Upcoming Supreme Court Battles

October 02, 2026

By Richard Blaustein

From left to right: Nick Harper, Jeremy Kreisberg, Elisabeth Theodore, and moderator Kathleen Foley.

As the start of the U.S. Supreme Court's 2026-2027 term approaches, lawyers are anticipating another year of high-stakes cases involving individual rights while reflecting on recent decisions that revealed substantive tensions in governance at the federal level.

At the D.C. Bar's annual "Supreme Court Review and Preview" program on September 24, more than 120 attendees came out to listen to a panel of experts discuss the Court's most consequential cases in the previous and upcoming term.

Moderator Kathleen Foley, an associate at Zimmer, Citron & Clarke, LLP specializing in appellate litigation, opened the conversation by drawing on statistics from SCOTUSblog and providing an overview of key trends of the 2025-2026 term. She pointed out that Chief Justice John Roberts and Justice Brett Kavanaugh were in the majority 95 percent of the time for merits cases, closely followed by Justice Amy Coney Barrett, who joined in 92 percent of the majority decisions.

The past term showed a Court divided along ideological lines. Nearly one in five decisions were decided along a 6-3 vote, with Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson typically in the minority. Foley said the split dwarfs the numbers from prior terms. "The big theme of the past term was executive power," Foley said in an interview with the D.C. Bar after the event.

Among the panelists was Nick Harper, partner in the Washington, D.C., office of Gibson, Dunn & Crutcher LLP. Harper discussed Learning Resources, Inc. v. Trump, which he described as "one of the most - if not the most - economically consequential decisions of the last term."

The case involved the Trump administration's imposition of tariffs under the International Emergency Economic Powers Act (IEEPA) of 1977, authorizing the president to regulate importation in emergency situations. The U.S. Department of Justice pointed to precedent in United States v. Yoshida International, Inc. (1975), where federal courts upheld President Richard Nixon's use of the Trading With the Enemy Act of 1917 (which was later amended by the IEEPA) to impose a temporary 10 percent import surcharge.

The 2025 tariffs were swiftly challenged in the Court of International Trade and the Federal Circuit, which issued an appeal decision in August 2025. The Supreme Court granted the solicitor general's certiorari request in September and consolidated cases under Learning Resources, holding oral arguments in November and issuing a decision in February 2025.

In his decision striking down the tariffs, Chief Justice Roberts said the major questions doctrine applied, under which the executive needs clear legislative authority to impose tariffs; the IEEPA did not offer this.

"For the Supreme Court, that is absolutely lightning speed on the merits docket; it doesn't get any faster than that," Harper said.

Elisabeth S. Theodore, partner at Arnold & Porter Kaye Scholer LLP, discussed Trump v. Slaughter and Trump v. Cook, both of which focused on the removal of heads of federal agencies that have been considered to wield independent powers, especially over economic sectors like trade and labor. In the background was Humphrey's Executor v. United States (1935), which affirmed limits on firing the heads of these independent agencies. "For the last decade or so … the Court has chipped away at Humphrey's," Theodore said.

In Slaughter, Roberts reversed Humphrey's and held that commissioners of the Federal Trade Commission (FTC) conducted executive branch work and thus could be fired by the chief executive. However, in Cook, which involved the president's attempt to fire Federal Reserve Governor Lisa Cook, the Court held that this position has "for cause" removal rights and implies procedural protections, substantive protections, and notice and opportunity to be heard.

The Court also found that the Federal Reserve, although wielding executive power, has a quasi-private structure with an important role in the U.S. economy, Theodore explained. The justices ascertained that "the Federal Reserve is an exception because of the historical pedigree dating back to the founding era, with the first and second [national] banks of the United States chartered by Congress right around the time the Constitution was adopted," she added.

The panel also offered reflections on the relationship between the major questions doctrine (questions of major political or economic significance may not be delegated to executive agencies absent sufficiently clear Congressional intent) and the nondelegation doctrine, by which conservative constitutionalists aver that the branches of government should not delegate to other branches their core responsibilities. "I sort of see the major questions doctrine as achieving the same or similar aims as the nondelegation doctrine," Harper observed. "It seems there is maybe not majority support for a full-throated application of the nondelegation doctrine."

The panelists shifted discussion to the upcoming term, which commences on October 5. Cases attracting the public's attention involve the extension of Second Amendment gun rights to semi-automatic assault weapons bans in local jurisdictions (Viramontes v. Cook County), Eighth Amendment securities against excessive fines (Jouppi v. Alaska), and the requirement of faith-based preschools to sign an equal opportunity nondiscrimination agreement protecting sexual orientation and gender identity to receive funding (St. Mary Catholic Parish v. Roy).

Also noteworthy, in Kian v. Florida the Court will review whether the Sixth Amendment requires a jury of 12 individuals for serious felonies. Florida currently allows for six-person juries in noncapital cases. The case harkens back to the 1970 Supreme Court decision in Williams v. Florida.

"In Williams the Court acknowledged that historically the jury was composed of 12 people. What we really should focus on is what the Sixth Amendment requires … of a jury," said Jeremy S. Kreisberg, partner at Munger, Tolles & Olson LLP. "[What the Williams] court said is that the function of the jury is to interpose ordinary citizens between the government and the accused, to provide for community participation in criminal trials, [to offer] reflective deliberation, and all of that can be done with 6 individuals as well as 12."

Kreisberg said the reasoning of Ramos v. Louisiana (2020) has become very pertinent because it affirmed the need for a unanimous jury for convictions, based on constitutional uniformity across the country and an appreciation of the founders' sense of the jury. He predicted that a key assertion will be that "the reasoning of Ramos essentially overrules Williams."

Foley agreed that the coming term appears to be concentrated on fundamental rights. "We'll see what emerges from the emergency docket and what issues crop up as the term progresses," Foley says. "Certainly, looking ahead, we see a lot of interesting cases on issues other than executive power."