{"id":578,"date":"2026-08-28T13:41:38","date_gmt":"2026-08-28T13:41:38","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=578"},"modified":"2026-08-28T13:41:38","modified_gmt":"2026-08-28T13:41:38","slug":"the-supreme-courts-realignment-roundup-october-term-2025","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=578","title":{"rendered":"The Supreme Court\u2019s realignment roundup: October Term 2025"},"content":{"rendered":"
\n

A legal realignment has been underway for some years now, in that legal views once associated with the right are now being espoused by the left, and vice versa. This post explores that point as to the Supreme Court\u2019s October Term 2025, adapting the categories I used in my Harvard Law Review foreword for the preceding year.<\/p>\n

Read more Government urges SCOTUS to deny 9\/11 petitions<\/a><\/p>\n

Originalism<\/strong><\/p>\n

Originalism was for many years the asserted lodestar of conservatives like Justice Antonin Scalia and the bane of liberals like Justice Stephen Breyer. That alignment made sense, as originalism offers constraining principles befitting frequent dissenters. Lately, however, that once-familiar alignment has blurred to the point of disappearing.<\/p>\n

This term\u2019s removal cases offer a useful illustration. In Trump v. Slaughter<\/em>, which concerned the president\u2019s at-will removal of an FTC commissioner, both the conservative majority and the liberal dissent tussled over original historical materials in some detail. In Trump v. Cook<\/em>, by contrast, the court substantially insulated the Federal Reserve from presidential control, and both Chief Justice John Roberts\u2019 opinion for the court and Justice Brett Kavanaugh\u2019s pivotal concurrence advanced arguments that are much more readily described as pragmatic than originalist. So both liberal originalism and conservative pragmatism appear to be on the rise. (Arriving at a similar conclusion, originalist theorist professor Larry Solum has suggested that only a single justice in these two cases employed a \u201cprimarily originalist\u201d method: Justice Clarence Thomas.)<\/p>\n

Another illustration arose in Trump v. Barbara<\/em>, the birthright citizenship case, as both the cross-ideological majority opinion and the conservative dissenters extensively relied on original historical materials. Perhaps the least originalist opinion was Kavanaugh\u2019s separate writing, which argued in favor of \u201cnew exceptions\u201d to the historical birthright citizenship rule.<\/p>\n

One tool for sloughing off strict originalism has been a metaphor originally deployed by non-originalist jurists. As I discussed last month, liberals in the 1970s denied that the Constitution was \u201ctrapped in amber.\u201d These days, however, the idea that the Constitution is not trapped in amber has taken hold among the court\u2019s conservatives, including in the Cook<\/em> majority opinion and Kavanaugh\u2019s opinion in Barbara<\/em>. So a realignment of metaphors is underway, too.<\/p>\n

Substantive due process<\/strong><\/p>\n

Perhaps the biggest single instance of legal realignment this year occurred in Mirabelli v. Bonta<\/em>, an interim docket case in which the conservative supermajority, over liberal dissents, enforced a novel substantive due process right.<\/p>\n

In that case, the court claimed that it was simply applying century-old cases regarding parental rights to opt out of public school or to teach their children foreign languages. But (as I have argued elsewhere) that assertion was incorrect: Mirabelli<\/em> is a substantial expansion of existing doctrine in several ways, including because it regulated teaching and communications by teachers at public schools.<\/p>\n

Even if Mirabelli<\/em> had merely applied substantive due process case law, that alone would be remarkable. Justice Antonin Scalia was adamantly against substantive due process doctrine, in large part because it was the foundation for abortion rights. Scalia made no bones about the danger that substantive due process would invite judicial ideology into the law \u2013 just as it had done in prior decades. Today, however, the substantive due process shoe, not so long ago on the left foot, fits comfortably on the right.<\/p>\n

Foreign law<\/strong><\/p>\n

Foreign law and practice can help the court join global trends and escape inconvenient domestic law. Conservatives used to be allergic to foreign law, though recent cases like United States v. Skrmetti<\/em>, on medical treatments for transgender minors, began to reverse that pattern. This term, the court took a similar step in Little v. Hecox<\/em> \u2013 concerning state bans on transgender athletes\u2019 participation in girls\u2019 and women\u2019s sports \u2013 by discussing the International Olympic Committee\u2019s recent policies and findings on trans athletes.<\/p>\n

Much more remarkable, however, was Alito\u2019s dissent in Trump v. Barbara<\/em>, which embraced foreign law in two ways.<\/p>\n

First, Alito invoked the practices of other countries to impugn the majority\u2019s understanding of birthright citizenship. In his words: \u201cThe Court\u2019s interpretation saddles this country with an ancient British rule that even the United Kingdom has abandoned, as have other countries whose legal systems share the same pedigree.\u201d This sentence included a footnote citing Australian and New Zealand law.<\/p>\n

Alito\u2019s claim, including its invocation of an appropriate legal \u201cpedigree,\u201d calls to mind (for example) the Warren Court\u2019s invocation of \u201ccivilized nations\u201d as a source of guidance regarding U.S. constitutional law.<\/p>\n

Also called to mind is the following statement from Roper v. Simmons<\/em>: \u201cthe Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of \u2018cruel and unusual punishments.\u2019\u201d Back in 2005, the most conservative justices (Scalia, joined by Chief Justice William Rehnquist and Thomas) vehemently objected to that approach.<\/p>\n

Second, Alito proposed an understanding of U.S. birthright citizenship that was explicitly contingent on the laws of foreign countries. According to Alito, the constitutional phrase \u201c\u2018subject to the jurisdiction\u2019 of the United States\u201d in the 14th Amendment \u201cmeans subject to the jurisdiction of the United States alone and not \u2018subject to any foreign power.\u2019\u201d Thus, Alito argued that ascertaining constitutional citizenship \u2013 a foundational U.S. legal principle \u2013 frequently requires consideration of foreign law.<\/p>\n

Making the point unmistakably clear, Alito applied his framework to several countries associated with unlawful immigration to the United States. And, in doing so, Alito explicitly cited and relied on foreign legal materials. For instance, he argued: \u201cunder Mexico\u2019s constitution, the child of a Mexican parent can become a Mexican national at birth and acquires certain duties to the government. See Political Constitution of the United Mexican States, Arts. 30, 31 (1917).\u201d Alito made similar points citing laws from Guatemala, El Salvador, Honduras, the Philippines, and China.<\/p>\n

Alito has broken from Scalian conservativism in several important ways, but his embrace of foreign law this term is among the most remarkable.<\/p>\n

Stare decisis<\/strong><\/p>\n

This story is by now familiar. Back in the 1960s, liberals held the reins of power and so afforded stare decisis little weight. Conservatives took the opposite view. As professor Justin Driver has put it, \u201cDuring the Warren Court era, to be a constitutional conservative meant embracing a few closely related concepts,\u201d including \u201cvenerating precedent\u201d and \u201cresisting breaks with the past.\u201d<\/p>\n

That basic situation has now reversed. These days, liberal justices routinely emphasize stare decisis as part of their dissenting opinions, following in the tradition of 1960s conservatives.<\/p>\n

This term continued the familiar pattern. In Cisco Systems, Inc. v. Doe I<\/em>, for instance, Sotomayor\u2019s dissent (joined by the court\u2019s other liberal jurists) lamented: \u201cHow low this Court\u2019s respect for stare decisis has sunk.\u201d But neither she nor her readers could be surprised, since she was quoting one of her own dissents from 2021.<\/p>\n

Or take Trump v. Slaughter<\/em>, where the majority dismissively referred to \u201cthe dissent\u2019s ode to stare decisis.\u201d Sotomayor\u2019s dissent in Slaughter<\/em>, joined by the other two liberals, argued that overruling 1935\u2019s Humphrey’s Executor v. United States<\/em> was \u201cdestabilizing\u201d and that the majority \u201call but disregards\u201d stare decisis.<\/p>\n

Read more Fed Governor Lisa Cook responds to Trump administration\u2019s letter stating that it is \u201cconsidering\u201d her removal<\/a><\/p>\n

Textualism and deference<\/strong><\/p>\n

Textualism and deference garnered separate attention in my foreword, when Chevron<\/em>\u2019s demise was still recent. This term, with Chevron<\/em> receding into history, we can combine the two issues under a single heading. In brief, conservatives in the vein of Scalia favored both statutory text and deference to agencies \u2013 two sources of judicial restraint. Recently, however, liberals have taken up that mantle.<\/p>\n

The signal ruling here is Learning Resources v. Trump<\/em>, the tariffs case, which fractured over the atextual major questions doctrine. The three liberal justices opposed the major questions doctrine as a categorical matter and so argued for a straight reading of the statutory text. By contrast, three conservative justices (the chief, joined by Barrett and Gorsuch) argued for varied reasons that the major questions doctrine applied, in effect using a principle of anti-deference to curb the executive branch\u2019s action. And three other conservative justices (Kavanaugh, joined by Thomas and Alito) endorsed the major questions doctrine in general but proposed exceptions to it such that it did not apply in the case at hand.<\/p>\n

The major questions doctrine and its exceptions are now approaching the intricacy of a baroque cathedral. And conservative justices are eagerly constructing that atextual edifice as they see fit, even as the liberal jurists cling to statutory text.<\/p>\n

Justiciability<\/strong><\/p>\n

My foreword included standing on its list of realignment topics, but this year it makes sense to expand that section to encompass three justiciability issues: standing (whether the right plaintiff is before the court), mootness (whether it\u2019s too late to bring a claim), and jurisdictional sequencing (when to decide jurisdictional issues). In brief, court majorities tend to favor their own court\u2019s jurisdiction, whereas frequent dissenters aim to confine it.<\/p>\n

Standing<\/em><\/p>\n

Bost v. Illinois State Board of Elections<\/em> has now supplanted Biden v. Nebraska<\/em> as the most remarkable instance of standing realignment to date. In Biden<\/em>, which concerned the president\u2019s student-loan forgiveness program, all conservatives voted for standing and all liberals against it. In Bost<\/em>, the breakdown wasn\u2019t quite as clean because Justice Elena Kagan joined a relatively narrow concurrence in the judgment in favor of standing. However, all six of the conservative justices voted for standing, and two out of three liberal justices voted against it.<\/p>\n

More important was the nature and basis for the five-justice majority opinion in favor of standing. Whereas Biden<\/em> had been a relatively factbound holding, Bost<\/em> established a new, categorical rule in favor of standing for candidates challenging vote-counting procedures. And it did so explicitly based on the court\u2019s intuitions about fairness, along with pragmatic concerns regarding election litigation. So much for the conventional standing requirement of injury-in-fact, or for TransUnion LLC v. Ramirez\u2019s<\/em> history-and-tradition inquiry.<\/p>\n

Mirabelli<\/em> is also worth mentioning here. In a single sentence, the conservative majority converted a reservation from a recent case into another new, seemingly broad rule in favor of standing. In the court\u2019s view, the plaintiffs \u201cvery likely have standing because they are objects of the challenged . . . policies.\u201d<\/p>\n

Recently, however, the old alignment reemerged in an interim docket case, Trump v. California<\/em>, which concerned President Donald Trump\u2019s executive order on election integrity. All the conservative justices voted against standing, while the liberals voted for it. This result is consistent with the view that standing is influenced by presidential politics: \u201cconservative Justices may evaluate standing skeptically, and liberal Justices enthusiastically, in cases challenging the second Trump administration.\u201d<\/p>\n

For more on the standing realignment, Bost<\/em>, and Mirabelli<\/em>, see here, here, and here.<\/p>\n

Mootness<\/em><\/p>\n

Mootness is an area to watch and to research more systematically.<\/p>\n

In a number of classic mootness cases, liberals argued against mootness and conservatives argued for it. For example, in the 1974 case of DeFunis v. Odegaard<\/em>, Justices William Brennan, William Douglas, Thurgood Marshall, and Byron White all dissented against mootness. And in 2000\u2019s Erie v. Pap\u2019s A.M.<\/em>, Scalia and Thomas wrote separately in favor of mootness. These illustrative cases suggest \u2013 though do not prove \u2013 that mootness had an ideological valence parallel to standing. In other words, conservatives may have been justiciability hawks across the board, whereas liberals were justiciability doves.<\/p>\n

But, roughly in sync with the standing realignment, mootness seems to have shifted ideological orientation. One of the earliest signs of a broader justiciability realignment involved the 2020 ruling in NY State Rifle & Pistol Association v. City of New York<\/em>, where conservative Justices Samuel Alito, Neil Gorsuch, and Thomas voted against mootness in a Second Amendment challenge to a New York City gun law. That early indicator is especially interesting because it (barely) preceded Justice Amy Coney Barrett\u2019s appointment creating the conservative supermajority.<\/p>\n

This year, mootness showed some added signs of polarization. Most especially, Little v. Hecox<\/em>, the transgender athletes case, broke down 6\u20133 on mootness, with all conservatives against mootness and all liberals in favor. Mullin v. Al Otro Lado<\/em>, regarding when an immigrant \u201carrives in the United States,\u201d showed subtler indication of realignment, as Justice Ketanji Brown Jackson alone raised \u201cpotential mootness problems.\u201d<\/p>\n

All told, mootness is showing signs of realignment.<\/p>\n

Jurisdictional sequencing<\/em><\/p>\n

A secondary aspect of Scalia\u2019s justiciability project was to tighten up principles of subject-matter jurisdiction (whether a court may hear a particular matter). The big case here was 1998\u2019s Steel Co. v. Citizens for Better Environment<\/em>, which Scalia wrote for the court.<\/p>\n

The gist of the holding was that federal courts may not assume jurisdiction before opining on the merits, even though lower courts had deemed that practice appropriate in many circumstances. As Scalia put it: \u201cHypothetical jurisdiction produces nothing more than a hypothetical judgment\u2014which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning.\u201d<\/p>\n

Scalia\u2019s view garnered the approval of the five most conservative justices in that era, whereas the four more liberal justices (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) declined to follow suit. Breyer\u2019s separate opinion is especially noteworthy. Rather than categorically rejecting Scalia\u2019s proposal, Breyer would \u201coften\u201d adhere to it, subject to the judiciary\u2019s wise discretion.<\/p>\n

In Mullin v. Doe,<\/em> Alito wrote for a plurality that the Steel Co.<\/em> rule does not apply to decisions on interim relief. This view garnered the approval of four conservative justices: besides Alito, the chief justice and Thomas and Kavanaugh.<\/p>\n

Alito\u2019s proposed carve out from Steel Co.<\/em> can be viewed as a version of Breyer\u2019s standard-like approach to jurisdictional sequencing. While jurisdiction must \u201coften\u201d come before the merits, that rule is deemed flexible enough to exempt judgments issuing on the interim docket.<\/p>\n

Once again, Breyer\u2019s legacy improbably gains ground over Scalia\u2019s.<\/p>\n

***<\/p>\n

In sum, trends from recent years have continued and in some ways expanded. We can look forward to more realignment during the term to come.<\/p>\n

Read more Has the Supreme Court rendered the First Amendment\u2019s press clause invisible?<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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