The Emergency Docket Is Reshaping How the Supreme Court Decides Cases

Neal Katyal described his recent tariffs case as formally narrow but constitutionally expansive: whether a president may impose tariffs ranging from 15% to 145% on the world, for as long as he chooses, under the International Emergency Economic Powers Act’s authority to “regulate importation.”

The administration’s textual argument, as Katyal presented it, was straightforward. If a tariff regulates what comes into the country, then authority to regulate importation includes authority to impose one. The challenge for the challengers was to persuade a Court that identifies strongly with textualism that the ordinary phrase “regulate importation” did not cover a tariff.

Katyal’s answer was to distinguish a tariff from an ordinary import restriction. Congress uses “regulate” throughout the U.S. Code—he put the figure at 1,499 times—but, he said, never to mean taxing: taking money from private citizens and putting it into the federal treasury. His opening line at argument was deliberately simple:

That distinction had to withstand a practical objection from Justice Kavanaugh. If the president may block goods from entering the country altogether, Kavanaugh asked, why may he not exercise the supposedly lesser authority to let the goods in while charging a price? Katyal answered with a historical distinction: Americans had a Boston Tea Party, not a “Boston Embargo Party.” A restriction on commerce and a levy that transfers money to the Treasury, he argued, have different constitutional significance. The latter requires particular congressional authorization.

Katyal regarded the case as unusually difficult not simply because of the statutory language, but because it asked the Court to reject a president’s signature initiative. The Court has very rarely, if ever, done that, he said. He framed the stakes as extending beyond trade policy: Congress had been “asleep at the switch,” in his view, and the litigation was a test of whether the constitutional system could still supply a check on unilateral executive action.

The result, as Katyal described it, was a 6–3 opinion by Chief Justice Roberts holding the tariffs illegal. He said $166 billion would be returned to Americans who had paid the tariffs. He also said Americans were paying $100 million a month in interest.

For Katyal, the point was not principally the economic amount. The decision demonstrated, he argued, the founders’ design for a system in which political leaders will make mistakes and institutions can correct them. His account nonetheless resisted an uncomplicated story about the Court. The same Court, he later noted, had issued decisions he considered deeply damaging to the rule of law, particularly its presidential-immunity ruling. The tariffs case was a hopeful sign, not a resolution of the larger question.

Neal Katyal treated oral advocacy as more than mastery of a brief. A Supreme Court advocate has to anticipate each justice’s concerns, listen closely enough to respond to the question actually being asked, and avoid conceding something that will damage the case under the pressure of live argument.

Katyal has studied improv comedy for six years. Its lesson for advocacy, he said, is the discipline of listening: a hostile question often contains a premise that counsel cannot simply ignore. “Yes, and” offers a way to engage that premise and build toward an answer without making the exchange needlessly adversarial.

He also worked with Harvey to create an AI tool trained on 25 years of questions from the justices and their written work. The purpose was not to substitute a model’s answer for legal strategy, but to automate part of the predictive work lawyers already do when preparing for argument. A former clerk can help counsel anticipate how a particular justice may think; the tool could surface patterns across a much larger body of questions and opinions. Katyal was explicit about the limit: following AI’s advice alone, he joked, would have produced a 10–0 loss before a nine-member Court.

The technology changes preparation by making prediction more systematic, but it does not displace the advocate’s judgment about what a question means, which concession is safe, or how a justice may react when doctrine meets the facts of a case.

The pressure is also physical and psychological. The advocate stands roughly 10 feet from the Chief Justice while the other justices extend across the bench, too far apart to remain in view at once. Katyal sought help from sports-performance coach Ben Crow after recognizing a persistent sense that he did not belong in the Court, reinforced by the portraits surrounding the courtroom and by his sense that they did not resemble him.

On the day before the tariff argument, Crow urged him to turn “got to” into “get to.” Instead of thinking that he had to restore checks and balances, retain thousands of details, and avoid freezing at the podium, Katyal recast the task as an opportunity to defend the Constitution, invoke the country’s founding values as the son of immigrants, and argue for the rule of law.

Katherine Wellington offered a different illustration of the same need to adapt in real time. She represented Terry Pitchford, a Mississippi death-row prisoner, in a case involving race discrimination in jury selection. The record, she said, showed that a prosecutor marked prospective jurors “B” for Black and “W” for white and struck every Black juror except one. Yet Mississippi courts held that Pitchford’s lawyer had not preserved the constitutional objection sufficiently, despite the lawyer having told the trial court, “I want to raise and preserve my Batson violation,” and the court responding that it was preserved.

Conventional advice, Wellington said, is not to take death-penalty cases to the Supreme Court because the odds are so unfavorable. She has done so twice and won twice, both times 5–4. The method is to identify not only the legal error but the justice-specific concern that can make the error matter. In Pitchford’s case, she emphasized, the argument was not best understood as an abstract death-penalty appeal. It was a race-discrimination case involving a concrete injustice to one person, and an area—jury-selection discrimination—in which Roberts and Kavanaugh had shown concern.

The Court resolves questions of nationwide doctrine, Wellington said, but advocacy can still depend on telling the story of one life clearly enough that the justices see why an injustice requires a remedy.

Katherine Wellington argued that the Court’s most visible disputes—over tariffs, immigration, birthright citizenship, presidential power, and guns—can obscure decisions that do not fit the familiar 6–3 frame. Legal doctrine, facts, and the specific concern of a justice can produce alignments that political forecasting misses.

She pointed to a Second Amendment case involving guns and marijuana, in which all nine justices agreed that mere possession of marijuana was insufficient to strip someone of the right to bear arms. Neal Katyal offered another example from FCC v. AT&T, widely billed after Citizens United as a test of whether corporate constitutional rights would expand further.

AT&T argued that the Freedom of Information Act’s exemption for “personal privacy” applied to corporations because the Dictionary Act defines “person” to include corporations. Roberts focused instead on the adjective. “Person” and “personal” are not interchangeable, he suggested, offering examples such as “craft” and “crafty,” “squirrel” and “squirrelly,” and “pastor” and “pastoral.” The company’s lawyer had no effective response. Six weeks later, Roberts wrote a unanimous opinion against AT&T and closed with: “We trust AT&T will not take it personally.”

A textual distinction, an ugly factual record, or a justice’s concern about a particular legal principle can destabilize a prediction based only on party or ideology.

Still, Wellington did not treat legal reasoning and political identity as wholly separate. She said the justices are not ordinarily deciding cases by asking whether they want to vote for President Trump or President Biden. They are working through legal theories. But those theories are developed through institutions that many people understand as politically aligned.

She pointed to the influence of Justice Scalia, the Federalist Society, and conservative legal thought developed in law schools and professional networks. One strand emphasizes enacted text rather than legislative purpose. Another advances a structural account of the executive branch: the president, rather than independent agencies or civil servants, should exercise executive authority. A judge shaped by those premises may understand a decision as a legal application rather than a partisan preference, even when the results map onto partisan expectations.

Katyal described a discipline he used while running the Solicitor General’s office: reverse the identity of the parties. Before defending a position for the Obama administration, he would ask whether he would hold the same view under a President Bush. He called that exercise basic legal training and said he hoped the justices use it as well, although he is not always convinced that they do.

The harder question is whether a methodology remains stable when the parties, political stakes, and practical consequences reverse.

Chief Justice Roberts may still care deeply about the Court’s institutional legitimacy, but he no longer occupies the position from which he can reliably build and control majorities. That is Katherine Wellington’s account of the central constraint on his tenure.

Jeffrey Rosen recalled Roberts’s stated ambition early in his tenure: to avoid a judiciary perceived as a collection of politicians in robes by producing narrow, collegial, and, where possible, unanimous opinions. Roberts had invoked Chief Justice Marshall as a model and worried that a polarized country needed to see the Court as something other than another political branch.

Wellington, a former Roberts clerk, said that this institutional concern remains central to him. He cares deeply how the Court is perceived, she said, and that concern is visible even in opinions that critics strongly oppose. She suggested that the presidential-immunity decision in Trump v. United States, which she characterized as holding the president immune from “pretty much everything,” was motivated in part by a desire to keep the Court out of politics.

That impulse creates its own problem. If the Court refuses to intervene where the Constitution requires it to act, Wellington said, critics may view that restraint itself as political. And Roberts is operating on a Court structurally different from the one he inherited.

When Wellington clerked, Justice Kennedy was the central vote. Lawyers and justices alike sought his support because he could decide the Court’s direction. For a period, Roberts himself held that position. But he no longer does, Wellington said. As Chief Justice, he can assign the majority opinion only when he is in the majority; if he lacks five votes, the senior justice on the other side controls assignment. That reduces his ability to shape the Court’s output if he wants to avoid separate concurrences and dissents.

Neal Katyal was sympathetic to the difficulty of Roberts’s position. He said the Chief Justice faces five justices often to his right and three to his left, and has done as well as could be expected in an institutionally demanding role. But Katyal also identified two decisions that, in his view, will weigh heavily on Roberts’s legacy: the immunity decision and the Court’s 5–4 ruling upholding the Muslim ban.

On immunity, Katyal’s objection was foundational. In his view, a constitutional system cannot reconcile “no person is above the law” with a rule under which a president could, even hypothetically, order the assassination of political rivals without criminal law having anything to say about it. On the Muslim ban, he saw the Court as upholding something corrosive to the country’s core commitments.

The disagreement was not over whether those decisions are consequential. It was over how much institutional motive can explain, or justify, the Court’s approach. Wellington saw a Chief Justice trying to protect the Court’s role and legitimacy from a noncentral position. Katyal saw outcomes he could not reconcile with basic constitutional commitments.

Neal Katyal said the Court’s emphasis on text, history, and tradition has changed the work of Supreme Court advocacy. When he began arguing cases, the first major section of a brief might have said, in effect, that precedent already compelled the desired result. After Dobbs overturned Roe v. Wade, he no longer treats precedent as the same kind of secure foundation. If the Court can overrule what had been considered a “super precedent,” he said, any precedent may be vulnerable. Arguments now begin more often from first principles.

That shift is especially visible in Second Amendment cases, where the Court requires governments defending gun regulations to identify historical analogues. Katherine Wellington described directing associates to investigate what Massachusetts was doing in 1776, sometimes through historical sources not yet digitized. Historical research has become a central part of advocacy because the justices have made it material to their constitutional analysis.

Wellington’s point was practical rather than celebratory: advocates must meet the Court where it is. She also pointed to Justice Barrett as a consequential figure in this environment. Wellington regards Barrett as unusually candid about originalism’s limitations and as a justice whose vote lawyers cannot confidently predict in advance. Barrett is open, Wellington said, to strong textual and historical arguments but also to whether a proposed interpretation “actually makes sense.” That makes her, in Wellington’s view, a justice an advocate may genuinely be able to persuade.

Katyal’s unsuccessful Hawaii gun-control case captured his concern about how the historical method is applied. Hawaii required owners of private property—restaurants, banks, and other establishments—to affirmatively invite guns onto their premises, by sign or online notice. Otherwise, firearms were presumptively excluded. Katyal said Hawaii identified four founding-era examples of substantially the same approach.

Katyal said the Court’s majority deemed those examples insufficient. One came from Louisiana and had been designed to help keep Black people from possessing guns. Justice Jackson’s dissent, as Katyal summarized it, objected that the majority had built a test demanding historical analogues and then discounted directly analogous laws because it disliked their racist provenance. If relevant tradition was the test, she argued, the government had produced it.

Katyal thought Jackson had the better argument. He accepts that the Court should seek to understand the Constitution’s original meaning, but contends that historical evidence is often contested and can be selectively marshaled. In his view, a justice determined to reach a particular outcome can generally find a historian or amicus brief supporting a preferred account. Wellington did not endorse that conclusion; her emphasis was that lawyers must research and present the historical record rigorously because the Court has made it central.

Historical argument can also matter decisively. In Moore v. Harper, Katyal opposed the independent state legislature theory—the claim that state legislatures could hold final authority over presidential elections and potentially override the people’s votes in allocating electors. He saw the theory as plainly incompatible with the original constitutional understanding. When Justice Thomas questioned him at argument, Katyal used the opening to make a sustained historical case involving Hamilton, Madison, Jefferson, and constitutional structure. The Court rejected the theory 6–3, although Thomas was not among the six.

The sharpest shared concern involved the “shadow docket,” more formally the Court’s emergency docket. Emergency applications ask the Court to stop a lower-court ruling from taking effect, or to permit a government policy to proceed, without the ordinary sequence of full briefing, argument, and a reasoned merits opinion.

Neal Katyal contrasted the practice under prior administrations with the current volume. During his two and a half years running the Solicitor General’s office, he said, he filed one emergency application; Justice Kagan, his predecessor, filed perhaps one as well. He said the Trump administration had filed 24 and won 20, with the only loss involving deployment of the National Guard in Illinois. Justice Sotomayor, he said, had dissented in all 24; Justice Kagan in roughly 22.

The consequences are not minor simply because the orders are short. Katyal emphasized that the Court may issue a one-line ruling that allows a major policy to go into effect, without the explanation that would permit readers to inspect the Court’s reasoning in an ordinary merits opinion.

Katyal’s strategic choice in the tariffs litigation reflected that concern. After winning 7–4 in the court of appeals, he faced pressure to seek immediate enforcement of the ruling invalidating the tariffs. He declined. His concern was that the administration would immediately seek emergency relief from the Supreme Court, invoke the need to preserve diplomatic negotiations and presidential foreign-policy authority, and obtain an order restoring the tariffs before full review. Instead, his side allowed the tariffs to remain in force and secured a promise that the government would repay them with interest if the challengers ultimately prevailed.

For Katyal, that choice demonstrated what he saw as the emergency docket’s tendency to favor the administration: even after a lower court has ruled against a policy, the government may preserve it through rapid emergency review.

Katherine Wellington shared the concern, though she also acknowledged that emergencies sometimes require a national answer. The ordinary Supreme Court brief is the product of repeated drafts, consultation with subject-matter experts, detailed factual and historical research, and input from amici. In an emergency posture, she said, lawyers may have three days. The opposing side has similarly little time; affected groups and scholars may be unable to contribute; the justices and their clerks lack months to assess the issues.

That compressed process, Wellington argued, leaves the Court without much of the adversarial development that helps test legal claims and identify practical consequences. Emergency relief may sometimes be unavoidable, she said, but the Court works better when it can deliberate on the ordinary timeline.