The annual SCOTUSblog Summit, held on Wednesday at the Johns Hopkins University Bloomberg Center, featured a variety of panels on several different topics concerning the Supreme Court.
The first session was with Elizabeth Prelogar, who served as the solicitor general of the United States during the Biden administration and now heads Cooley’s Supreme Court and appellate practice group. During a fireside chat with Zachary Shemtob, the executive editor of SCOTUSblog, Prelogar told the audience that as an undergraduate at Emory University she “thought [she] was going to be a journalist, and that going to law school would be a way to get a foundation to write about the law.”
Then, as a young lawyer, Prelogar had the unusual experience of clerking not just for one but for two Supreme Court justices – Ruth Bader Ginsburg, followed by Elena Kagan. Prelogar suggested that her tenures with the two women were very different. Ginsburg (who, Prelogar noted, had by that time been on the bench for “several decades”), “really focused on the facts of cases.” “She very much viewed the cases through the prism of being about real people with real problems who were in court for a reason, because they had to solve those real problems.”
Prelogar then remained at the court for a second year with Kagan, who had just been confirmed to fill the vacancy created by the retirement of Justice John Paul Stevens. Because Kagan was a brand-new justice who had never served as a judge before, Prelogar explained, “there was this element to the clerkship of helping her build her chambers and her policies from scratch” – for example, whether Kagan would use bench memos and what the dress code would be. Prelogar also indicated that Kagan’s preparation for oral arguments, which involved bringing all of her clerks together “to talk through every aspect of the cases, and ideally to debate the cases” “gave me some of my early training” for when she herself later became a litigator.
When Shemtob asked about her preparations for oral argument, Prelogar allowed that her system has “evolved over time,” particularly to accommodate her “really relentless schedule” after she became the solicitor general. She became “ruthlessly efficient,” she said, and focused on compiling a list of as many as 250 potential questions for which she formulated answers.
Shemtob asked Prelogar, who has argued 36 cases before the court over the course of 12 years, whether it becomes “genuinely … less nerve-wracking over time?” Prelogar said that, on one hand, “[i]t definitely gets easier, or at least … you get to a level of comfort where … I feel like I've … locked in on what process I need to feel prepared, and then I really take comfort in the idea that if I have followed that process and I've put in the time to try to make sure that I have thought about my case from every angle, then I'm going to be best positioned to have the chance at oral argument to actually persuade.” But, on the other hand, she added, “it's not like” you are “ever … just cruising and you're completely relaxed.”
Asked to identify a case that she argued that was “especially meaningful” to her, Prelogar pointed to United States v. Rahimi, in which the justices upheld a federal law that bars someone who is the subject of a domestic violence restraining order from having a gun. Congress passed the law, she stressed, because it recognized that when such a person “has access to a firearm, it can often take abuse and turn it into homicide, that it creates grave dangers for people who are being abused and for law enforcement responding to those kinds of … calls. But it's hard these days sometimes to litigate Second Amendment issues in the Supreme Court.” As a result, she noted, the solicitor general’s office “really had to think strategically” “about what case to take up” to the Supreme Court on this question. When it ultimately prevailed in Rahimi, she said, “it was really both meaningful and gratifying from the standpoint of validating our legal strategy in thinking about” which case to bring, “but also because it was one of those cases where the stakes were not abstract at all.”
Shemtob’s fireside chat with Prelogar was followed by a live taping of the podcast Advisory Opinions, featuring host Sarah Isgur, permanent guest David French, and guest Amy Howe of SCOTUSblog. The recording – as well as a description and transcript of the episode – is available at SCOTUSblog.
During the summit’s third session, CNN senior legal analyst Elie Honig interviewed Sen. Dick Durbin, a Democrat from Illinois, and Rep. Darrell Issa, a Republican from California, about the relationship between Congress and the courts. The relatively candid conversation began with a discussion of term limits for judges and whether Congress has the power to impose them.
Issa emphasized that even if members of Congress believe that an institution or a system, like life tenure, isn’t working well, they should be cautious before stepping in to eliminate it if they don’t have a good solution. Life tenure, he suggested, has generally worked well, and “I don’t think that political pressure would lessen” if life tenure were eliminated. “If we want to maintain the maximum amount of independence for the Supreme Court,” he reiterated, life tenure “is valuable.”
But, Issa added, in his view, district court judges who remain in their jobs for too long can be a problem if they reach the point at which they are no longer able to carry out all of the functions of their role. “We have to have productive judges,” Issa emphasized. And he indicated that discussions with Chief Justice John Roberts on how to deal with this issue have for him been unsatisfactory: “Generally,” he said, “you get pretty hard pushback” from Roberts.
When asked about his views on life tenure, Durbin quipped, “it depends on the judge.”
Honig next asked both men about the elimination of the filibuster – the practice of prolonging debate to delay or prevent a vote, which requires 60 votes to overcome – for judicial nominees. Sen. Harry Reid of Nevada, then the Senate Majority Leader, ended the filibuster for nominees for the lower federal courts (among others) in November 2013; Senate Republicans then terminated it for Supreme Court nominees in April 2017. Was it a mistake, Honig enquired, to do away with the filibuster?
Durbin emphasized that Republicans, led by Sen. Mitch McConnell, had long blocked Democrats from filling vacancies on the U.S. Court of Appeals for the District of Columbia Circuit; as a result, he said, the “vacancies just sat there” until Reid eliminated the filibuster in 2013. But he acknowledged that the end of the filibuster “changed the whole conversation about” the Supreme Court, making it much more partisan. “We would have a much different category of justices” than we do now, he suggested, if senators needed 60 votes to end a filibuster and move forward with Supreme Court nominations.
Issa was not a fan of the filibuster. He stressed that the “Senate should have to make an up or down vote within a period of time” to ensure that the “good nominees of the president” are not “unreasonably delayed.”
Those responses prompted Honig to ask whether, if Democrats were to take control of the Senate in the November elections and there were a vacancy on the Supreme Court, the Senate should give a qualified candidate nominated by President Donald Trump a vote.
Durbin, who is not running for reelection in 2026, told Honig that the “only senator who has ever changed the tenure and composition of the” Supreme Court “is Senator McConnell.” Durbin was referring to McConnell’s refusal, after the February 2016 death of Justice Antonin Scalia, to give a hearing or a vote to Merrick Garland, President Barack Obama’s nominee, on the ground that it was too close to the 2016 presidential election. McConnell later held a hearing and confirmed Amy Coney Barrett, Trump’s nominee to fill the vacancy created by Ginsburg’s death, on Oct. 26, 2020 – just weeks before the November 2020 presidential election. Durbin indicated that he nonetheless believed that the Senate should vote on a Trump nominee.
Issa agreed, telling Honig that there should be an up-or-down vote on any or all nominees of any president.
Issa expressed opposition to the idea of a constitutional amendment, proposed by House Speaker Mike Johnson, to cap the number of Supreme Court justices at nine. He reiterated his belief that “if it isn’t broke, don’t fix it.” And he added that regardless of the size of the court, “if every case has to be decided by all of them, what incremental value do you get by a larger number?”
Durbin seemed to regard the question as a purely hypothetical one, at least for now, because even if it could obtain the 60 votes needed in the Senate, it would still likely face a presidential veto – which Congress would then need to override. That is “not a realistic conversation in the current political make-up of Washington,” he suggested.
Durbin and Issa had different views on the widespread use of the court’s emergency docket and whether the criticism of that docket is justified. Durbin said that he “absolutely” agreed with the criticism. “Is it too much to ask,” he said, “that … the court identify where they stand and explain where they stand” on important issues?
Issa countered that “[i]f you keep asking the court to take an infinite number of things separate from their” decisions on the merits,” “you force them to use the tools” that they have created. “At the end of the day,” he emphasized, “they’re doing the best they can.”
The afternoon concluded with a conversation between David Lat, the author of the Original Jurisdiction Substack, and three chief legal officers or general counsels: Brian Callanan of TD Bank US, Brett Gerry of The Boeing Company, and Jeffrey Taylor of ExxonMobil.
In the portion of the discussion that focused on the Supreme Court, Lat observed that the justices are issuing relatively few rulings on the merits these days. Should the court be taking more business or commercial cases?
Taylor noted that ExxonMobil has been involved in several cases recently, and is one of the two energy companies involved in Suncor Energy v. County Commissioners of Boulder County, the very first case in which the court will hear argument in October. “It would be unseemly or gluttonous for me to complain” that the court isn’t taking enough business cases. “We can’t complain about being mistreated,” he concluded.
Gerry suggested that whether the court is taking enough business cases “depends on what you think of as a business case.” Some cases, he said, may not appear to be “business cases” as such but nonetheless affect business, although “it doesn’t feel like there has been as many significant cases in that category” recently.
Lat asked Taylor what factors ExxonMobil considers in deciding whether to seek Supreme Court review.
Taylor quipped that, as a young federal prosecutor who practiced before the U.S. Court of Appeals for the 9th Circuit, he often believed that “they screwed up everything,” and that the government should appeal everything to the Supreme Court. But his thinking has changed, he observed, and ExxonMobil seeks “to be measured about what we’re going to seek.” The company asks whether the issue is “existential” or merely “an irritant?” “You try to apply some quality control,” he emphasized, but also use outside lawyers who have expertise in the Supreme Court.
Gerry noted that at a similar panel at last year’s SCOTUSblog Summit, another general counsel had observed that the “bar would have to be very high,” but he indicated that he was “not sure I agree.” He acknowledged that the bar was “high,” but he added that if he believed the question at the center of the case was “important enough” and “we had the better side of the argument,” then he “wouldn’t be reluctant to seek review.”
Callanan joked that “CEOs don’t get as excited about taking a case to the Supreme Court.” For him, he said, the important question in deciding whether to seek Supreme Court review was whether the issue is “a recurring, substantial” one.
Lat next asked whether the lawyers considered the Roberts court “pro-“ or “anti-business.” Gerry countered that it was neither. Instead, he said, the court was made up of “nine justices who have well-developed, well-thought-through approaches to deciding cases” that lead to “a result in a case,” regardless of who’s on what side of the case.
Callanan pointed to the tariffs case as evidence of the difficulty of making such a determination. Whether it was a pro-business case, he suggested, depends on your vantage point: two different businesses – a lumber company, which benefited from the tariffs, or a toy store, which often imported its products from overseas – would have two entirely different views on the question.
Taylor acknowledged that “if you’re looking to make that argument” that the court is pro-business, “you can find it,” but he contended that it’s also easy to make the argument that the court is anti-business. “And that,” he concluded, “tells me that they’re calling it as best they can.”
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