Panel of Experts Meets at GW Law to Discuss Cases Facing the U.S. Supreme Court

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Three faculty members of the George Washington University Law School met to discuss several critical issues facing the U.S. Supreme Court this fall. Joined by Chris Geidner of LawDork, the panel convened in the Jacob Burns Moot Court Room on Sept. 18, one day after Constitution Day, which commemorates the signing of the U.S. Constitution in Philadelphia in September 1787.

Participants included Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law and a professorial lecturer in law; Spencer Overton, the Patricia Roberts Harris Research Professor of Law; and Naomi Schoenbaum, William Wallace Kirkpatrick Dean's Research Professor of Law. The panel discussed the shadow docket; presidential power; election law and gerrymandering; and transgender rights, among other topics.

Serving as moderator, Geidner kicked things off by observing that the Supreme Court was not as quiet as usual this summer because of the "nonstop set of cases coming up to the shadow docket," cases taken up on an emergency basis outside the court's regular session, which begins in October. In a recent example, Geidner said, the court "allowed what is essentially racial profiling in ICE raids."

The shadow docket has been criticized for its lack of transparency and accelerated process. This summer, shadow docket rulings elicited stark dissents from justices appointed by Democrats, on grounds of both substance and process.

A significant case scheduled for this term, challenging President Donald Trump's tariffs, raises both economic questions and questions involving presidential power.

The government has to win its case on two issues, Morrison said, one a question of statutory interpretation of the International Emergency Economic Powers Act (IEEPA), enacted by Congress in 1977. The government's position here seems reasonably strong. But its position is weaker on an issue involving delegation of power.

"Under Article 1 of the Constitution, Congress is supposed to make the laws and the president is supposed to execute the laws," Morrison said. "Obviously, the Congress can't write every single law in every detail. The president has to have some discretion and some administrative agency. The question is, where is the line?"

It's easy to see how the Democratic appointees are going to say no to Trump on the statutory interpretation issue, Morrison continued. But conservative justices have been leading the charge on delegation, he added, pointing him to the conclusion that the government "has a really uphill battle in this case."

If the court doesn't rule against Trump in the tariffs case, Morrison said, "they're not going to say no to anything-on the firing cases, on the removal of officers or virtually anything else."

Overton raised the issue of preemptive compliance, asking the other panelists about "the nightmare scenario" of Trump not complying with the court's ruling and whether that prospect might act as an incentive for the justices to rule with the administration, to avoid a direct clash with the executive branch.

After saying that there may be a danger of this, Morrison asked, "What's the point of having a court if you don't dare to give your opinions?" He followed up with a related question: "What is the point in being in Congress if all you're doing is rubber-stamping what the president does?"

If Trump loses the tariff case, Morrison said, there will be "a lot of class actions filed to recover the money, and it's really not so much up to him to defy those orders." But in other cases, such as the removal of officers, there are various ways the administration could disrupt the normal workings of government.

In a discussion focused on election law, Overton explained the issues raised by Louisiana v. Callais, which will be reargued before the court this term. Though roughly one-third of Louisiana's population is Black, redistricting in 2021 gave Black voters the opportunity to elect only one Black member of the state's Congressional delegation of six representatives. This case presents a possibility for further weakening the Voting Rights Act (VRA) of 1965. That landmark bill mandated that certain changes to voting laws require preclearance from Congress, but that provision of the VRA was overturned in 2013 in the Shelby County ruling.

The Callaiscase, which asks if Section 2 of the VRA continues to be allowable under the Constitution, may result in the removal of one of the "few brakes on unbridled gerrymandering" that remain in place, Overton said. Section 2 prohibits voting procedures that result in the denial of voting rights on account of a person's race. After Black voters in Louisiana challenged the new congressional map in 2021, the state was required to redraw the map, resulting in the addition of one more majority-Black district. A group of white voters then filed suit, claiming that the redistricting was unconstitutional because it redrew the map on racial grounds. A lower court agreed and struck down the map. The original plaintiffs appealed to the Supreme Court, which heard arguments in March 2025 but scheduled the case for another go-round this term.

Schoenbaum focused on cases from Idaho and West Virginia involving transgender female athletes who have been barred by state law from participating in sports. Those laws determine sex based on biological sex at birth.

"One of the cases brings a challenge on the basis of Title IX, a federal statute that bars sex discrimination in federally funded education programs, and the Equal Protection Clause in the Constitution," Schoenbaum said, while the other case focuses on equal protection alone.

In both cases, the plaintiffs aren't challenging sex segregation in sports generally, but how the law applies to them. Since there is no disagreement that there is sex-based discrimination here, Schoenbaum said, "The question will be whether it's permissible."

Both plaintiffs have received hormone treatments that limit testosterone production, and one of them has never gone through male puberty. Both wanted to participate on the track team and the cross-country team. The justifications offered for barring them from participation are on grounds of safety and competitive fairness, but in these cases Schoenbaum believes those arguments are absurd.

"Everybody can see that there's no safety issue because these are not contact sports," Schoenbaum said. "And these plaintiffs say there's no issue here with competitive fairness, because when it comes to their physiology, they are similarly situated to girls."

Not only is there no important interest that would support these laws, Schoenbaum added, she doesn't believe the laws are rational.

"All medical experts would agree that if you undergo hormone treatment, that's going to be relevant to your performance," Schoenbaum said. "And there's general agreement that circulating testosterone levels are the most important factor-to the extent there's any distinction-in athletic performance between boys and girls after puberty."

Further, Schoenbaum said, such laws don't actually seem very concerned with safety or fair competition-at least not for the trans girls who have undergone hormone treatment, rendering them smaller than boys. If required to play on boys' teams, they would be at a disadvantage.

After discussion of another LGBTQ case involving a challenge to Colorado's ban on "conversion therapy," as well as other issues, the panel concluded with a brief question-and-answer period.