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SCOTUS 2025-26 Term Preview: Tariffs, Voting Rights Act, Agency Power & More — Transcript

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0:00Welcome to On the Ballot with
0:01Ballotpedia, where we connect people to
0:03politics by providing neutral,
0:05non-partisan, and reliable information
0:07on our government, how it works, and
0:08what our excited.
0:10>> Hello everyone and welcome to another
0:11episode of On the Ballot. I'm your host,
0:13Norman Leahy. I'm a senior editor here
0:16at Ballotpedia and one of the things
0:18that Ballotpedia tries to do
0:20as much as possible is cover what's
0:22going on in the federal court system and
0:24of course the
0:26biggest cog in that system is the US
0:27Supreme Court, which starts up its new
0:30term in this coming October. Joining us
0:33to talk about some of the big cases the
0:35court will hear and might hear is
0:39Zachary Zachary Shemtob, who's the
0:41executive editor of SCOTUSblog. Zach,
0:43welcome back to the show. Appreciate it.
0:46>> Very glad to be here.
0:48>> All right. There's a lot going on, a lot
0:50of moving parts in this upcoming
0:53uh court session. So,
0:55what do you think are maybe the top four
0:59or five cases that we should be
1:00watching?
1:02>> So, I'd say so just to give a little
1:04background. So, the court at this point
1:07has decided to hear a little over 30
1:09cases during the term. Uh we're not
1:12counting those cases on the so-called
1:14emergency dockets. Um that that's a
1:16separate thing and I'm I don't know if
1:19we have time, but I'm always happy to
1:20discuss that since that takes up so much
1:22oxygen. Um but this is for these are the
1:25what are called the merits cases. So,
1:27beginning on October 6th, as you said,
1:30the court will start hearing oral
1:31arguments on these merits cases. These
1:33are decided with
1:34full briefing,
1:36oral argument, and then you have formal
1:39written opinions and decisions, unlike
1:42the emergency docket. So, among the
1:44merits docket cases that I'd say are the
1:46biggest, to go back to your question, um
1:48the tariffs case has to be number one at
1:50this point. Then I'd say probably the
1:53Louisiana
1:55voting
1:57uh case. Then you have the, uh,
2:00transgender cases, transgender in sports
2:03cases.
2:04Um, then you have the possibility of
2:07some emergency docket cases then going
2:09on the merits docket and that we think
2:11about the FDC case and possibly the FATF
2:13case with Lisa Cook. And so I I'd say
2:16those are the current biggest ones, but
2:18there's a number of other important
2:20cases including on campaign finance
2:22reform,
2:23um, a death penalty case, etc. So
2:25there's There's a whole lot to discuss,
2:27but I'd say those are for now the big
2:29five. Yeah, and
2:31I don't It's all It's almost
2:34impossible to say where to begin and do
2:35things justice, so to speak. But let's
2:38start with the tariffs case because I
2:40agree that that's
2:42important because there's
2:43actually money at stake in this, lots of
2:47it. So can you give us a the thumbnail
2:49on that one?
2:50Absolutely. So the tariffs case actually
2:52consists of two cases and actually there
2:55were also, to be super technical about
2:57it, there are two types of tariffs, or
2:58if not more, that Trump instituted. Um,
3:01but this is looking at all those tariffs
3:04and he instituted these through what's
3:05called, known as IEEPA, or the
3:08International Emergency Economic Powers
3:10Act. I think I got that right. Um, and
3:13this allows, um, the president,
3:15according to to levy, according to
3:18Trump, to levy tariffs on nearly all
3:21goods imported into the United States,
3:23uh, through a series of executive
3:25orders. And so when Trump imposed the
3:29tariffs, he relied specifically on a
3:31provision in I on I in IEEPA and this,
3:35uh, authorizes the president, and I'll
3:36read this off, in times of national
3:38emergencies to, and this is from the
3:41text, to regulate importation of
3:43property, it's regulate dot dot dot
3:45importation of property in which any
3:48foreign country or a national thereof
3:50has any interest. And so Trump used that
3:53language to say he has the authority to
3:55impose these massive sweeping tariffs.
3:58>> Right, and and adjust them, it seems,
4:01like
4:03>> Whenever the mood strikes.
4:04>> Yeah, whenever the mood strikes. So, but
4:06but
4:07to
4:08who brought this case?
4:10>> So, this was brought by two It was two
4:14two separate cases brought by small
4:15businesses.
4:16>> Okay.
4:17>> Separate small businesses. And these
4:18small businesses contend that the
4:20tariffs are costing them massive amounts
4:22of money, and one is at least claiming
4:24that this could put them out of business
4:25entirely, I believe, or at least have
4:28severe repercussions on their business.
4:31And so, they brought this case forward.
4:33Um a district court um there were two
4:35district courts, but district courts
4:37ruled that the tariffs were illegal.
4:39Uh then the kind of lead case, although
4:43again, there are two cases, but one of
4:44the cases uh went to the US Court of
4:46Appeals for the Federal Circuit. Um and
4:49they voted 7 to 4. So, it was actually
4:51closer than one might think based on I
4:53know there's a lot of media reporting
4:55saying all these tariffs are outrageous,
4:56they're clearly unconstitutional, you
4:58know, excuse me, clearly illegal,
4:59improper, but it was it was a little
5:01closer than one might think in the uh
5:03circuit court. And so, it was 7 to 4,
5:06and they struck the tariffs, uh but they
5:08kept them in place for now for the
5:10Supreme Court to decide. And now it's up
5:13to the Supreme Court, uh which will hear
5:15oral arguments in uh November 5th.
5:18Uh they
5:19>> Yeah. And to be clear, we're only
5:20talking about one flavor of tariffs that
5:23the administration has at its disposal.
5:26So, it's not everything, but it's a one
5:29of the key elements of the tariff
5:31policy.
5:32>> And there's also claims by the Treasury
5:34Secretary, uh Scott Bassett, that, you
5:36know, these can be imposed cer- certain
5:38economic, you know,
5:40there are ways to
5:42impose similar economic means through
5:45other mechanisms. So, th- it wouldn't
5:48necessarily be the end of these kinds of
5:52economic, you know,
5:54uh
5:55uh you know, kind of economic issues,
5:57but it would take something major off
5:59the table for the Trump administration.
6:01>> And let's uh
6:03move on to what I another one I think is
6:06very important is the
6:07Voting Rights Act case out of Louisiana.
6:10Can you explain that one for us?
6:12>> Yeah, so um this is Louisiana versus
6:15Callais, although no one knows how to
6:17pronounce that.
6:18I think you even the justices have
6:20pronounced it differently.
6:21Um here a group of Louisiana voters uh
6:25who describe themselves as non-African
6:27American have argued that a
6:30congressional map which created a
6:33majority black district in the state was
6:36an unconstitutional racial gerrymander.
6:39So, it was created in accordance with
6:41Section 2 of the Voting Rights Act,
6:43which is to uh
6:46prohibit election practices that result
6:49in a denial or abridgement of the right
6:50to vote. Uh but these folks are claiming
6:54that actually that is directly contrary
6:58to the 14th Amendment, which bars the
7:01federal government and states from
7:03denying or abridging the right to vote
7:05on account of race, color, or previous
7:07condition of servitude.
7:09So, it's a very complicated case, but
7:12that's that's the gist of it.
7:14>> And but this is not going to be the
7:16first time the Supreme Court has
7:17addressed portions of the Voting Rights
7:19Act. Is that correct?
7:20>> Yeah, I mean in Shelby County, uh they
7:23which again gets to the the formula to
7:26determine certain uh pre-clearance for
7:29states, or the ability of states to
7:31draw, you know, certain things in
7:33accordance with race, uh they said that
7:35that was ultimately improper and
7:37unconstitutional. So, this is another
7:40look at the Voting Rights Act, and this
7:42is Section 2.
7:44>> And this all fits within the political
7:46context of states that are considering
7:48or actually have done mid uh
7:52redistricting of the congressional
7:54districts for the mid before the midterm
7:55elections. So, it takes place within
7:57that context. So, it's it's um as much
8:00as the court may want to be above uh
8:02politics, it often runs alongside it.
8:05So,
8:06>> Cor- correct. Uh that's that's that's
8:07fair to say. And what's also kind of
8:10interesting is originally this case was
8:11set to be decided last term.
8:14Uh the the last day of last term, uh the
8:18court announced that it would be reset
8:20to this term. Uh Justice Thomas
8:23dissented and said he would decide on it
8:25right now, but clearly there was some
8:27disagreement or at least a need for more
8:30information on the court. Uh they they
8:32weren't ready to decide it last time
8:34around, so they kicked it over to this
8:35term.
8:36>> So, those are uh
8:38at least what the two that I I agree
8:40with you. Those are those are the two
8:41big ones. What do you think falls into
8:42the third slot in your opinion?
8:45>> I mean, you know, the court I don't love
8:47this term, but the court is reentering
8:49the so-called culture wars um
8:52in the, you know, transgender cases. One
8:54of them is West Virginia versus BPJ.
8:58Um and in this case, the court's going
9:01to hear a uh it was filed by a
9:0314-year-old transgender student who
9:06began to receive puberty blockers and
9:08hormone therapy. And that student is
9:10seeking to compete on the girls' sports
9:12team at middle school. And there is a
9:16law in place in West Virginia that's
9:18saying that the transgender student uh
9:20cannot do so. Um and so, the the
9:23challenge here is that that law violates
9:27uh Title IX, which is a federal law
9:30prohibiting sex discrimination uh in
9:32educational programs.
9:34Um and also violates the 14th Amendment
9:38uh
9:39because it's, you know, basing this on
9:41account of the person's sex and
9:43therefore that's unconstitutional.
9:45>> Right. So, those those words keep
9:47getting litigated, it seems. Now,
9:50you
9:51talked about
9:52other criminal cases that are that are
9:54coming up.
9:55Mention a death penalty case.
9:57>> Yeah, one of the more interesting ones
9:59is Ham versus Smith. Um and this case
10:05Again, it's complicated as death penalty
10:07cases always are,
10:08but it deals with IQ tests. And so,
10:12there's a case called Atkins. And in
10:14this case, Atkins decided many years
10:16ago, a 6-3 majority ruled that the
10:20Eighth Amendment's prohibition of cruel
10:22and unusual punishment forbids the
10:24execution
10:26of someone who is mentally disabled.
10:29And they said in the opinion, I believe
10:33it was in a footnote,
10:35that well, how do you measure whether
10:37someone is mentally disabled? And they
10:39referred to IQ test and they said
10:41something like an IQ of approximately 70
10:43or lower.
10:45And so, in this case, this individual
10:47who's on death row took multiple IQ
10:49tests. Some of them were above 70.
10:53But, if you combined all the tests,
10:56the standard range of error, the
10:59person's IQ could have been as low as
11:0169.
11:03And so, the circuit court said, well,
11:05you know, in accordance with Atkins,
11:07that could be problematic because you
11:09could be executing someone who's IQ's
11:12mentally disabled. And the court is
11:14looking at this case, they're saying,
11:16well, did they base it on one IQ test,
11:19multiple IQ tests, or a kind of a
11:21holistic range of things? And so, I
11:23think the court is and I could be
11:25entirely wrong on this, but I think the
11:27court is going to shift from a line of,
11:29okay, well, if it's under 70, then you
11:31can't be executed, to well, let's not
11:33only look at IQ test, but let's
11:34potentially look at all these different
11:36factors. You know, reports, expert
11:38evidence, etc. And so, that could change
11:42uh the parameters of when someone uh can
11:44be subject to capital punishment.
11:47>> And you mentioned an FTC case.
11:50A Federal Trade Commission case.
11:52>> So, this was on the emergency docket as
11:55are so many things. Um and in this case
11:59uh Rebecca Slaughter, who was on the FTC
12:02Commissioner, was fired by the Trump
12:05administration uh
12:08without cause. And according to, you
12:11know, the statute that governs the FTC,
12:14you can only fire someone for cause. But
12:17Trump did not do so. And so, the
12:20challenger here uh Slaughter is
12:22contending that that was improper for
12:25the Trump administration to do. The
12:26Trump administration is saying, "No,
12:28this handicaps our ability to control
12:31the executive branch." Which goes to,
12:33you know, this is a larger issue of the
12:34unitary executive theory at the end of
12:36the day. Um and and the the tricky thing
12:39for the Trump administration is
12:42precedent is technically on Slaughter's
12:46side in that there is a case called
12:50uh Humphrey's uh Executor versus United
12:52States, uh decided decades and decades
12:55ago, almost a century ago. Um and in in
12:58Humphrey's Executor, they said that, you
13:00know, the president it's called the FTC
13:03Commissioner. So, it was talking about
13:04the FTC, which is in play here. Uh can
13:07only be removed for cause.
13:10And so, that would seem to fly in the
13:11face of what the Trump administration
13:13did. The Trump administration's argument
13:15in response is that over the years the
13:17court has watered down Humphrey's
13:18Executor because they made the executive
13:20more powerful. And additionally, the FTC
13:23as it currently exists is a completely
13:26different beast than it was at the time
13:29of Humphrey's Executor. At the time of
13:30Humphrey's Executor, they say it was
13:31much more muted, it wasn't nearly as
13:33powerful, it didn't have as much
13:34authority. So, that's now entirely
13:36different at this point, and the
13:38president needs to therefore be able to
13:40control this, you know, essentially this
13:41beast. Um there's
13:43>> Okay.
13:44>> Yeah.
13:45>> But it but that segues us to a case that
13:48the court may hear.
13:50And of course it's always dangerous to
13:51speculate on what the court decides to
13:53hear, but this one's kind of important,
13:55and it involves the federal uh Federal
13:56Reserve Board governor. Uh can you give
13:59us a a quick one on that one?
14:01>> Yeah, so this deals with Lisa Cook. Lisa
14:04Cook is a as you said a governor on the
14:07Federal Reserve. Um she was Democratic
14:10appointed uh
14:12through Biden.
14:13The Trump administration fired her, this
14:16time claiming, unlike in the FTC case,
14:18that it was for cause.
14:20Um their argument was that she committed
14:22mortgage fraud, whether she committed
14:24mortgage fraud or not uh is
14:26now kind of unclear on how you weigh
14:28mortgage fraud, etc. Um but regardless,
14:31they attempted to fire her, um and she
14:34has pushed back and argued that it
14:37two thing or a number of things, but one
14:39of them is that she wasn't, you know,
14:40this was didn't qualify as for cause. Uh
14:43and two, she has a Fifth Amendment uh
14:46property right. So, she was entitled to
14:48some sort of hearing before she was
14:50fired, which the administration never
14:51gave her.
14:53>> And this also uh
14:55uh leads us to this uh broader idea
14:59of the emergency docket, which as you
15:02said is getting a lot of attention, more
15:06than I ever remember. Uh and maybe maybe
15:09I'm misremembering, Lord knows I can do
15:11that. But it seems like this has only
15:13become a thing of Can you explain in
15:15layman's terms what this thing is,
15:18why it's such a big deal right now, and
15:21how it is influencing or
15:23or not what the court does on the
15:24merits, doctor.
15:26>> I'll try.
15:27>> No, okay.
15:28>> Yeah, yeah.
15:29As you said, it's this has only become a
15:31a bigger deal since 2014 when these
15:34emergency applications became more
15:36popular. But but let me back it up. So,
15:40emergency applications typically are
15:43when
15:44let's just talk about the
15:45administration. So, the administration,
15:47let's say the Trump administration, a
15:50lower court judge uh district judge
15:53decides a case against them.
15:54And the Trump administration says, this
15:56is incredibly important. Uh this needs
15:59to be resolved right now. What they've
16:01done is completely upended everything
16:02we're trying to do. Um and so they file
16:06an emergency application, um sometimes
16:08after sometimes before the circuit court
16:10has decided, which typically reviews the
16:12district courts. And they go to the
16:14Supreme Court with this emergency
16:15application, and they say, you need to
16:18stay the district court's decision.
16:21And
16:22these cases, since there's not a lot of
16:24time
16:25there isn't as much briefing as you have
16:28in the merits cases, and there's
16:29typically not oral arguments either.
16:32So, all you have is
16:34in this case, the Trump administration
16:36saying, you need to block the district
16:37court ruling, and the other side saying,
16:40no you don't.
16:41And the court hears it on a very or or
16:43somewhat expedited schedule. These can
16:45take a little while to decide still, and
16:47then they issue an order
16:50as opposed to an opinion.
16:52So, in the merits docket you have these
16:53reasoned opinions. On the emergency
16:55docket you have very short orders. They
16:57can be like four sentences, and
16:59sometimes you have concurrences and
17:00dissents. And so, when we talk about the
17:03emergency docket, we talk about
17:06ca- emergency applications that can go
17:08anytime and do go anytime to the Supreme
17:11Court, which are then quickly decided by
17:13that court.
17:14And they're I know I'm being long-winded
17:17here, but uh
17:18yet they're um um
17:20they're not merits cases. One because
17:23they're not decided on full briefing and
17:24oral arguments.
17:26Um but two because they are at the end
17:28of the day, they're not permanently
17:30deciding the issue. They're just
17:31deciding whether the stay, you know,
17:34whether to stay or stop the district
17:36court, and then the actual substance of
17:39the issue
17:40uh will be litigated below before
17:43potentially coming against the Supreme
17:45Court on the merits. So I know that's a
17:47lot.
17:48>> they're well, I guess
17:50to put it another way, they're not def-
17:52they have effects, but they're not
17:54definitive.
17:55>> They're correct. They're they're not
17:57definitive. The complication is part of
18:00the standard in deciding whether to
18:03lift a stay,
18:05um you have to decide a little on oh
18:07well, do you think that this is
18:09meritorious? And so they're hinting at
18:12how they may ultimately decide on the
18:14merits. on the emergency docket.
18:16>> And
18:17I understand too from uh
18:20reports
18:21that there's a little bit of static
18:24between the various levels in the
18:25federal court now. Some judges at lower
18:28courts saying
18:30you know, we'd really like to do what
18:32the court has ordered, but
18:34you're writing haiku, and we don't quite
18:36know what the meaning is. Uh
18:38I don't recall stuff like this occurring
18:41before. What is What are we to make of
18:43all that?
18:45>> I mean
18:46it's it's definitely a growth in the
18:51so there have always been an emergency
18:53docket uh in terms of things like death
18:54penalty cases.
18:56>> Sure.
18:56>> So death penalty cases before someone's
18:58executed, they have a last-minute
19:01application often to the Supreme Court.
19:04And the Supreme Court almost always
19:05denies it. But that that was kind of
19:08what much of the emergency docket
19:09consisted of. In the last few years,
19:11we've seen a much more active executive
19:14branch trying to utilize this mechanism,
19:17which was always technically there, in
19:19order to stop lower courts from
19:22interfering with what it sees as its
19:24prerogative. So, there's a lot of
19:27theories why this has come about, but I
19:28think that's a major one.
19:30Um and and this was utilized, by the
19:32way, by the Biden administration, as
19:34well. This is This was not just the
19:36Trump administration. Um but but I think
19:38part of it is a more active uh executive
19:43branch which is willing to
19:46uh
19:47get involved with
19:50uh you know, judicial decisions.
19:54>> All right. Okay, fine. That's That's
19:56great. And I appreciate you indulging me
19:57as we went down that that path. Um
20:00you know, I want to think of a couple
20:02more cases that you, looking over the
20:04horizon, they may not be on
20:06uh the Supreme Court's uh
20:09merit docket right now, but what are one
20:11or two others that you think that we
20:13should be watching for that could be?
20:15>> So, I I don't want to sound
20:18sensationalistic, but I will put this
20:20one out there because it's what it got a
20:22lot of media attention. Um so, it's
20:25whether Obergefell will be overturned.
20:27Um so, Kim Davis, uh who was the clerk
20:31who became famous for refusing gay
20:33marriage licenses, um she went through a
20:36number of court proceedings and that was
20:38eventually fined
20:40went before a jury because she refused
20:42to confer these marriage licenses, which
20:44was unconstitutional, and she was fined
20:47by a couple $50,000 apiece. So, I think
20:50$100,000. Um she's challenging that
20:53decision, and now it's been brought up
20:54to the Supreme Court, and there's a
20:57number of more technical issues there,
20:59but one of the issues she's raising is
21:01that Obergefell was unconstitutional in
21:03the first place
21:04uh because it Yeah, she said it leaves
21:06her with a choice between her religious
21:08beliefs and her job.
21:10So, after this, you know, and what's
21:13kind of interesting, this is what
21:14SCOTUSblog reported on,
21:16um normally so when she issued this, the
21:19other side waved a response, which is
21:22showing that oh, we don't think your
21:24petition is credible, you know, we don't
21:26think this will be granted by the court,
21:28we're not even going to bother to spend
21:29money and resources answering. And the
21:31court actually issued uh
21:34an order saying we would like a
21:35response. So, yeah, that generally means
21:38that one justice, all you need is one
21:40justice for that, but it shows that at
21:42least one justice is interested in
21:44thinking more about this issue.
21:46And and and so I think that indicates
21:48there is some interest. I mean, my guess
21:51is Thomas and Alito would be genuinely
21:54interested in re-presenting Obergefell.
21:56I'm not convinced that the rest of the
21:58court would, but but again, this is, you
22:00know, now something that's being
22:02considered for cert or being considered
22:04to be heard by the court, although I I
22:06am ultimately skeptical that they will
22:07grant cert.
22:09>> Yeah, and um
22:11gosh, there's
22:13like we opened the show, there's a lot
22:15of stuff that is still potential to go
22:18before the Supreme Court, and it does
22:21seem like each new session there are
22:23monumental issues before the court, and
22:27this one will not disappoint. And for
22:30our listeners out there, you can learn
22:32more about the upcoming SCOTUS term uh
22:35in the links below, and we'll be back
22:37soon with another issue
22:39uh edition uh episode of
22:42On the Ballot, and we thank you for
22:44listening. Zachary Shemtob, the
22:46executive editor of SCOTUSblog,
22:49thanks for joining us. And then by the
22:50way, if you haven't bookmarked that
22:52website, SCOTUSblog, do read it. You
22:56will know everything you need to know
22:58about the Supreme Court. Zach, thanks
23:00Thanks joining us.
23:01>> Thank you.
23:02>> And we'll be back and until then, I'm
23:04Norm Leahy. We'll see you in the digital
23:06pages of Ballotpedia. Take care.

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This page contains the full transcript of SCOTUS 2025-26 Term Preview: Tariffs, Voting Rights Act, Agency Power & More by Ballotpedia, generated from the public captions YouTube serves with the video. The transcript has 3,872 words across 627 segments, with the original timestamps preserved so you can click any line to jump to that moment in the embedded player.

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