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’s October Term 2025, adapting the categories I used in my Harvard Law Review foreword for the preceding year.
Originalism
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.
This term’s removal cases offer a useful illustration. In Trump v. Slaughter, which concerned the president’s 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, by contrast, the court substantially insulated the Federal Reserve from presidential control, and both Chief Justice John Roberts’ opinion for the court and Justice Brett Kavanaugh’s 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 “primarily originalist” method: Justice Clarence Thomas.)
Another illustration arose in Trump v. Barbara, 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’s separate writing, which argued in favor of “new exceptions” to the historical birthright citizenship rule.
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 “trapped in amber.” These days, however, the idea that the Constitution is not trapped in amber has taken hold among the court’s conservatives, including in the Cook majority opinion and Kavanaugh’s opinion in Barbara. So a realignment of metaphors is underway, too.
Substantive due process
Perhaps the biggest single instance of legal realignment this year occurred in Mirabelli v. Bonta, an interim docket case in which the conservative supermajority, over liberal dissents, enforced a novel substantive due process right.
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 is a substantial expansion of existing doctrine in several ways, including because it regulated teaching and communications by teachers at public schools.
Even if Mirabelli 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 – 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.
Foreign law
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, on medical treatments for transgender minors, began to reverse that pattern. This term, the court took a similar step in Little v. Hecox – concerning state bans on transgender athletes’ participation in girls’ and women’s sports – by discussing the International Olympic Committee’s recent policies and findings on trans athletes.
Much more remarkable, however, was Alito’s dissent in Trump v. Barbara, which embraced foreign law in two ways.
First, Alito invoked the practices of other countries to impugn the majority’s understanding of birthright citizenship. In his words: “The Court’s 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.” This sentence included a footnote citing Australian and New Zealand law.
Alito’s claim, including its invocation of an appropriate legal “pedigree,” calls to mind (for example) the Warren Court’s invocation of “civilized nations” as a source of guidance regarding U.S. constitutional law.
Also called to mind is the following statement from Roper v. Simmons: “the 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 ‘cruel and unusual punishments.’” Back in 2005, the most conservative justices (Scalia, joined by Chief Justice William Rehnquist and Thomas) vehemently objected to that approach.
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 “‘subject to the jurisdiction’ of the United States” in the 14th Amendment “means subject to the jurisdiction of the United States alone and not ‘subject to any foreign power.’” Thus, Alito argued that ascertaining constitutional citizenship – a foundational U.S. legal principle – frequently requires consideration of foreign law.
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: “under Mexico’s 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).” Alito made similar points citing laws from Guatemala, El Salvador, Honduras, the Philippines, and China.
Alito has broken from Scalian conservativism in several important ways, but his embrace of foreign law this term is among the most remarkable.
Stare decisis
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, “During the Warren Court era, to be a constitutional conservative meant embracing a few closely related concepts,” including “venerating precedent” and “resisting breaks with the past.”
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.
This term continued the familiar pattern. In Cisco Systems, Inc. v. Doe I, for instance, Sotomayor’s dissent (joined by the court’s other liberal jurists) lamented: “How low this Court’s respect for stare decisis has sunk.” But neither she nor her readers could be surprised, since she was quoting one of her own dissents from 2021.
Or take Trump v. Slaughter, where the majority dismissively referred to “the dissent’s ode to stare decisis.” Sotomayor’s dissent in Slaughter, joined by the other two liberals, argued that overruling 1935’s Humphrey's Executor v. United States was “destabilizing” and that the majority “all but disregards” stare decisis.
Textualism and deference
Textualism and deference garnered separate attention in my foreword, when Chevron’s demise was still recent. This term, with Chevron 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 – two sources of judicial restraint. Recently, however, liberals have taken up that mantle.
The signal ruling here is Learning Resources v. Trump, 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’s 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.
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.
Justiciability
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’s too late to bring a claim), and jurisdictional sequencing (when to decide jurisdictional issues). In brief, court majorities tend to favor their own court’s jurisdiction, whereas frequent dissenters aim to confine it.
Standing
Bost v. Illinois State Board of Elections has now supplanted Biden v. Nebraska as the most remarkable instance of standing realignment to date. In Biden, which concerned the president’s student-loan forgiveness program, all conservatives voted for standing and all liberals against it. In Bost, the breakdown wasn’t 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.
More important was the nature and basis for the five-justice majority opinion in favor of standing. Whereas Biden had been a relatively factbound holding, Bost established a new, categorical rule in favor of standing for candidates challenging vote-counting procedures. And it did so explicitly based on the court’s 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’s history-and-tradition inquiry.
Mirabelli 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’s view, the plaintiffs “very likely have standing because they are objects of the challenged . . . policies.”
Recently, however, the old alignment reemerged in an interim docket case, Trump v. California, which concerned President Donald Trump’s 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: “conservative Justices may evaluate standing skeptically, and liberal Justices enthusiastically, in cases challenging the second Trump administration.”
For more on the standing realignment, Bost, and Mirabelli, see here, here, and here.
Mootness
Mootness is an area to watch and to research more systematically.
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, Justices William Brennan, William Douglas, Thurgood Marshall, and Byron White all dissented against mootness. And in 2000’s Erie v. Pap’s A.M., Scalia and Thomas wrote separately in favor of mootness. These illustrative cases suggest – though do not prove – 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.
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, 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’s appointment creating the conservative supermajority.
This year, mootness showed some added signs of polarization. Most especially, Little v. Hecox, the transgender athletes case, broke down 6–3 on mootness, with all conservatives against mootness and all liberals in favor. Mullin v. Al Otro Lado, regarding when an immigrant “arrives in the United States,” showed subtler indication of realignment, as Justice Ketanji Brown Jackson alone raised “potential mootness problems.”
All told, mootness is showing signs of realignment.
Jurisdictional sequencing
A secondary aspect of Scalia’s 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’s Steel Co. v. Citizens for Better Environment, which Scalia wrote for the court.
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: “Hypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning.”
Scalia’s 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’s separate opinion is especially noteworthy. Rather than categorically rejecting Scalia’s proposal, Breyer would “often” adhere to it, subject to the judiciary’s wise discretion.
In Mullin v. Doe, Alito wrote for a plurality that the Steel Co. 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.
Alito’s proposed carve out from Steel Co. can be viewed as a version of Breyer’s standard-like approach to jurisdictional sequencing. While jurisdiction must “often” come before the merits, that rule is deemed flexible enough to exempt judgments issuing on the interim docket.
Once again, Breyer’s legacy improbably gains ground over Scalia’s.
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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.
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