Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
Last Tuesday, June 30, the U.S. Supreme Court issued its final opinions in argued cases for October Term 2025. So it’s an ideal time to review the Term that was—and to look ahead to what’s on the docket for OT 2026.
I could think of no better guest for this project than my husband, Zachary Baron Shemtob. Zach is the executive editor of SCOTUSblog—a leading news outlet, if not the leading news outlet, about the Supreme Court. Before joining SCOTUSblog in May 2025, he practiced at two top law firms, clerked for the Second Circuit and Southern District of New York, and graduated from Georgetown Law, where he served as editor-in-chief of the law review. Prior to his legal career, Zach was an assistant professor of criminology, where he focused on legal decision making.
Thanks to Zach for joining me—and thanks to him and the entire team at SCOTUSblog for their excellent work.
Show Notes:
Zachary Shemtob author page, SCOTUSblog
Zachary Baron Shemtob, personal website
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Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.
David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the 101st episode of this podcast, recorded on Friday, July 3.
Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.
Last Tuesday, June 30, the Supreme Court of the United States released its final opinions in argued cases for October Term 2025, i.e., the 2025-2026 judicial year. I wanted to interview a guest who could help me make sense of the Term, in terms of both overarching themes and individual cases and justices—and I could think of no better guest than my husband, Zachary Baron Shemtob. Zach is the executive editor of SCOTUSblog—a leading news outlet, if not the leading news outlet, about the Supreme Court. Before joining SCOTUSblog in May 2025, he practiced at two top law firms, clerked for the Second Circuit and Southern District of New York, and graduated from Georgetown Law, where he served as editor-in-chief of the law review. Prior to his legal career, Zach was an assistant professor of criminology at Central Connecticut State University, where he focused on legal decision making. Without further ado, here’s my conversation with Zach Shemtob.
Zach, thank you so much for joining me.
Zachary Baron Shemtob: I’m thrilled to be here.
DL: Well, you didn’t really have a choice, but I’m glad to have you anyway. Tell us about your background and upbringing. Where did you grow up?
ZBS: I was born and raised in New Jersey—northern New Jersey, to be exact. I am a proud Jersey boy. I was born in Morristown, New Jersey. Then my family moved a few years later to Randolph, New Jersey, and then to Mendham, New Jersey, all of which are relatively close to each other and in northern Jersey. Those locations will mean nothing to most people, but anyone from those areas will know them very well. I have to say, I’m proud of my Jersey heritage—and we, of course, live there to this day in Summit, not far from where I grew up.
DL: Did you have any lawyers in the family growing up?
ZBS: In terms of the law and lawyers, not really. My Aunt Penny handled private-injury cases and a variety of other ones. My parents, though, were certainly both very interested in the law and all other intellectual subjects. So I definitely grew up in a law-like environment—but not a lot of folks in the family, besides Aunt Penny and my Aunt Lori, who’s in family law, were lawyers, and neither of my parents is.
DL: And it sounds like the backgrounds of your aunts didn’t really bring you to law school?
ZBS: No, because, to be fair, I came to law school a little late—which I’m happy to talk about.
DL: Yes, please do.
ZBS: After college back in the day, I got a Ph.D. in criminology and was an academic for a few years, where I taught theories of punishment and a number of other subjects, including judicial decision-making. My dissertation was on the Supreme Court’s approach to the death penalty in the 1970s, first in a case of Furman v. Georgia, where they abolished the death penalty as practiced, and then only four years later brought it back in a case called Gregg v. Georgia. And so my dissertation—which you can go and find, for the two or three people that are interested in it—was on why the Supreme Court did this. It actually became a book. My dissertation advisor, Evan Mandery, wrote a book about it called A Wild Justice, which is really fascinating. But anyway, even back then, I was very interested in Supreme Court decision-making or judicial decision-making.
At some point I decided that, since I was so interested in the law, it might make sense to go to law school. I’m happy to say that you did not discourage me, which was a little surprising, given some of the negativity from the Above the Law days. But regardless, I took the plunge, with support from you and several others, and went to Georgetown University Law Center (which they should just call “Georgetown Law School,” because this “GULC” thing is absurd). I went to GULC, I got my law degree, and I really enjoyed it. I was the EIC of the law review, which I loved—and which helped prepare me for my current job. And from there, I practiced law for a few years.
DL: Where did you go into practice?
ZBS: First, I was at Cooley, where I had a great experience. I did a combination of commercial and white-collar law, both of which I enjoyed—but given my background in criminology, I leaned a little more toward the criminal side. I was at Cooley for only a year and a half to two years, because then I clerked on the Second Circuit and S.D.N.Y.—wrong order but, as you know better than anyone else, increasingly common. Then I went back to practice law at Lankler Siffert & Wohl, doing a lot of white-collar criminal defense work, and I was there for six years.
DL: I actually don’t think you did the clerkships in the wrong order. First you clerked for Judge Robert Sack on the Second Circuit, and then you clerked for Judge Ronnie Abrams on the Southern District of New York. Whenever I’m advising law students or young lawyers about serial clerkships, I actually tell them I think it makes sense to do the court of appeals clerkship first, because it’s a better transition from law school to practice to go from the circuit court, which is more like law school, to the district court, which is more like practice.
ZBS: Well, I had two amazing judges, Judge Sack and Judge Abrams. Judge Sack always tempered me, but I think if I had a little better understanding of the district courts and what they were dealing with and how they worked, I may have been a little softer, kinder, and more understanding toward them. But again, Judge Sack, being the consummate professional he is, made sure to temper any issues I had there.
DL: In terms of after your district-court clerkship and seeing how difficult that job is, you would cut district courts more slack?
ZBS: Absolutely. Occasionally I’d be like, “Oh, I think this is clearly wrong. This doesn’t make any sense.” And then I’d think about it and go back and say, “Well, given not only what they’re dealing with, but how they’re supposed to approach the law in terms of these concrete details, as opposed to simply the law as an intellectual exercise”—which I think in academia and, to a certain extent, on the circuit court, you’re very used to—you get a better understanding, after actually clerking on the district court, of how to think and what it means on that level.
DL: Fair enough. Let’s delve a little bit more into your practice experience. You mentioned you had a great, although perhaps brief, experience at Cooley, where you focused on litigation. And by the time people are listening to this, they may have seen an article that I’m working on about Cooley’s amazing litigation practice. And then you went to Lankler Siffert & Wohl after your clerkships. Tell us about your experience at Lankler.
ZBS: It’s a fantastic firm. I have only great things to say about them. I deeply enjoyed the work, and I really enjoyed my colleagues. There was so much meaning in the work I did with clients. One of the funny things was when I went into law school, my thought was, “Oh, I’m going to leave law school, and then I’m going to become an academic. I was an academic before; the goal here is to become a law professor.” But I found that—and maybe part of it was the firms I ended up at—I really enjoyed practicing.
DL: You actually practiced for quite some time, longer than I did—almost a decade. And then you made the transition into journalism and media, because you are now the executive editor of SCOTUSblog. How did you make that jump?
ZBS: It’s my third career, from academia to law to journalism—although there is a connecting thread, and that was always judicial decision-making. I did it even while practicing law: focusing on how judges think, what you could write to capture their interest, and how to persuade them.
The SCOTUSblog opportunity presented itself through a friend, as you know all too well, David. At first I was pretty hesitant, because again, I was certainly enjoying myself practicing—but I thought this could be a really unique opportunity. I want to have as many experiences as possible, and I’m in a position where I’m blessed enough to have the ability to do that. So I said, “I’ll give it a go. SCOTUSblog is incredibly valuable. It has an amazing brand, and to be a part of bringing that into the future would be pretty neat.”
DL: We are speaking a little bit after the conclusion of the Supreme Court Term, and a few weeks after your one-year anniversary at SCOTUSblog. How have you been finding it?
ZBS: It’s great. Journalism was not a profession I was expecting to enter, but the importance and focus on the Supreme Court is obviously at a peak, and being part of SCOTUSblog allows me to be a part of that.
I’m especially proud because—even though some folks won’t believe it, based on the emails I get—we really try to be as independent, nonpartisan, and analytical as possible. By the way, that’s in our reporting itself. Amy Howe, our Supreme Court correspondent, is amazing, and we have our managing editor, Kelsey Dallas, who also writes articles very down the middle. Then at the same time, we brought in a lot of outside commentators, who are also wonderful—but they have their own opinions, and they bring their own views.
DL: So during your one year at SCOTUSblog, as you mentioned, you added a wide range of commentators, including some very distinguished scholars from both the left and right sides of the aisle. You brought back the beloved Stat Pack, a statistical analysis at the end of the Term of how things at the Supreme Court shook out. Are there other highlights you would mention, from what you’ve done at SCOTUSblog and the year-plus that you and your new colleagues have been there?
ZBS: We’ve introduced a lot of different features. We completely revamped and changed the website and made it a whole lot more accessible for users. We’ve also introduced different events, including an event last year with Justice Amy Coney Barrett. So we’ve hypercharged the thing. We’ve added a lot of people and contributors and made it as blown out as possible.
DL: Yes. And again, for any of my listeners who have not checked out SCOTUSblog recently (and I suspect that’s a very small number), you should definitely go check it out—because, though I’m admittedly biased, I think you and your colleagues have really done a great job of expanding it.
Speaking of the Supreme Court, let’s turn to that—because the focus of this episode is going to be a review of October Term 2025, essentially the Supreme Court’s judicial year 2025-2026.
My own personal feeling is that Supreme Court Terms alternate between blockbuster and quiet—or I guess I should say relatively quiet, because the Court has moved more and more to the center of importance in terms of American political and social life. OT 2025 was supposed to be a blockbuster year, and it certainly seems to me that it delivered. Would you agree?
ZBS: Oh, yes. This was one of the biggest years in the recent history of the Supreme Court.
DL: Is it perhaps the biggest term since, I don’t know, OT 2021, which was the Dobbs-Bruen Term?
ZBS: Yes. I’d say OT 2021 was slightly bigger. In OT 2021—I’ll just say 2021 because this OT thing drives me nuts—you had Bruen, which was about being able to conceal-carry outside the home. It was a major Second Amendment decision, which also introduced this “text, history, and tradition” test, which has come to define originalism in the Second Amendment area. The biggest case, of course, was Dobbs, which overturned Roe v. Wade. But you also had two other big ones, from what I recall. There was Kennedy v. Bremerton, the praying-coach case, which basically overturned Lemon v. Kurtzman and remodeled the Establishment Clause. And then you had West Virginia v. EPA, where the justices turbocharged the major questions doctrine or major questions theory—which, of course, came into play in the tariffs case this year. So that combination of four cases—Bruen, Dobbs, Bremerton, and West Virginia v. EPA—was pretty huge.
DL: I had forgotten West Virginia v. EPA; in terms of its actual effect on the Court’s jurisprudence going forward, it has been huge. And then, of course, I’m very familiar with Kennedy v. Bremerton, because my old boss, Judge O’Scannlain, was involved in that case in the Ninth Circuit.
If you had to identify a theme or two for OT 2025—I actually like the OT lingo—what jumps out at you?
ZBS: Oh, it’s the Trump term.
DL: Aren’t they all the Trump term?
ZBS: No, this one is in a league of its own. The fact is, if you go case by case, all or most of the major cases involve the president in some capacity. Birthright citizenship and the executive-order case. The tariffs case. Louisiana v. Callais, the Voting Rights Act case—even though it was the state, not the administration, as the litigant, it still has huge implications for the Republican Party and how things will shake out. So the president had a major interest in that one. Then, of course, you have the administrative-agency cases, Slaughter and Cook—and that’s just the tip of the iceberg. That alone makes pretty clear to me—not even counting the interim-docket or emergency-docket cases—that this truly was the Trump term.
DL: Based on your observation of the Court, just analytically, what observations do you have germane to the debate over whether the Supreme Court is independent of Trump or beholden to him?
ZBS: “Beholden” is a little too strong. I don’t entirely understand what one would mean by “beholden,” so I don’t know if I’d use that word.
Are they sympathetic to some of Trump’s priorities? Certain of them, if not a majority at times, absolutely are. As for the unitary-executive theory, though, that was in the air well before Trump. Of course, Trump pushed these things through his executive orders, but obviously the justices—Chief Justice Roberts, Gorsuch, etc.—were sympathetic to that from the get-go.
DL: Well, let me frame the question differently. Maybe “beholden” isn’t the right word, but I guess you could say there’s been this debate over whether, just to use a colloquialism, the Supreme Court or the conservative majority is “in the tank” for Trump—overly deferential to the president and his initiatives.
And I guess it depends on what your baseline is for “overly,” but here are some data points. Jack Goldsmith at Executive Functions wrote a great piece arguing that the Supreme Court is quite independent. But then there was an online conversation at The Times recently, featuring Kate Shaw, Will Baude, and Steve Vladeck, where—poor Will—it was two-on-one. I think Professors Shaw and Vladeck were arguing—well, I’ll quote the question Kate posed to Will and Steve: “Have the emphatic six in the 6-to-3 splits that have dominated the last few weeks of decisions made clear that this Court is one devoted—and increasingly nakedly so—to an ideological project?”
So I guess my question is: discuss.
ZBS: It’s a much more complicated picture than anyone wants to let on. I think that this is no doubt a conservative-leaning court, and therefore, on the whole, they are going to vote more often than not in line with a Republican president’s agenda, whether that’s Trump or George W. Bush or whomever; that is ultimately the way that’s going to go. But that certainly does not mean that it’s going to be that way in every case. And indeed, as we saw in two of the most important cases to President Trump—the birthright citizenship case and tariffs—they voted against the president. So again, as you said earlier, it depends on what your baseline is.
DL: I was recently listening to a Law.com podcast interview of Ilya Somin, with whom you recently shared some airtime on C-SPAN, I believe. Ilya made a very interesting point, which might be right in a way. He said that a lot of this Court’s rulings can be explained by saying that they’re the rulings that a pre-Trump Republican Party would approve of. Look at tariffs: the pre-Trump Republican Party was pro-free trade. Look at birthright citizenship: the Republican Party was certainly big on immigration enforcement, but it also had this colorblindness, “we can all be Americans” aspect to it. And certainly all the other things: the unitary executive dates back to the Reagan administration, but it endured through other Republican administrations, especially that of George W. Bush. Can we explain a lot of the Roberts Court rulings, especially the recent ones, by saying it’s just the pre-Trump Republican Party?
ZBS: It also helps explain the National Guard case, which you would have trouble seeing under a prior Republican president, and in the Court, Trump basically lost on that one. So that lines up.
I would still resist the idea that the Court is purely ideological, which that framing seems to imply—that they’re not a MAGA court but rather a George W. Bush court. And while I think there is certainly truth to that, I still think there is a divide on this Court, and in general, between law and politics, as much as folks want to deny it.
DL: Oh, I would agree with you, and I suspect Ilya probably would too, so I don’t want to misrepresent or overrepresent his thesis. I guess he was saying—and I think it’s probably right—that a lot of the outcomes correlate with desired policy outcomes of the pre-Trump Republican Party. But we all know that correlation is not causation. So these cases may be coming out this way not because the justices are consciously trying to implement a pre-Trump Republican Party agenda, but because many of them came of age as lawyers and legal scholars and judges in pre-Trump Republican circles and the pre-Trump Federalist Society, with an emphasis on free markets and liberty and federalism and limited government power and all of that.
So again, I agree with you. I would not argue that the justices are just doing politics and that their politics happen to be pre-Trump Republican politics. But I just thought that was an interesting observation.
ZBS: I think that there’s absolutely some truth to it. And to me, it certainly explains more than what I’ve heard from much of the left and the right.
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Let’s look at some of the justices—and a good way of doing that is through SCOTUSblog’s invaluable and beloved Stat Pack, which is such a great resource to scholars and journalists who follow the Court. So again, thanks to Jake Truscott and Adam Feldman for putting that together. What are some of the top-line findings of this year’s Stat Pack?
ZBS: I think the top-line finding that stands out is how often the Court decided along what we call ideological lines—which is ironic, given our prior conversation—meaning Republican- versus Democratic-appointed justices, the six-three split. That happened 24% of the time this Term, whereas last Term it was 15%.
Another big statistic was that the Court was dominated by Roberts and Kavanaugh around 95% of the time. I thought one of the most intriguing parts of it was that, if you look at the lineups in closely divided cases, Alito and Kagan agreed 0% of the time, which is absolutely remarkable. And then, of course, you had the overall agreement rates, and here we had this alignment—Roberts and Kavanaugh (the power couple), Thomas and Alito, Sotomayor and Kagan, and Sotomayor and Jackson—all agreeing 94% of the time, with Sotomayor and Jackson agreeing in closely divided cases 100% of the time.
DL: By the way, I also want to give a shout-out to this really nice video explainer that SCOTUSblog and Briefly put together, which captures some of the highlights of the Stat Pack, including things like the agreement rate and who was most often in the majority, which you just highlighted.
I know the answer to this next question because I read the Stat Pack and watched the video: which justice was most frequently in dissent last term?
ZBS: Last term, it was KBJ. She’s been pretty consistent about being the lead dissenter, but she’s followed not too far off by Sotomayor and then, I believe, Kagan. But yes, KBJ was in that position the most this Term—the opposite of, again, Roberts and Kavanaugh.
DL: Let me float another proposition by you and see what you think. After Justice Ginsburg passed away and was replaced by Justice Barrett, you had this conservative supermajority of six. And a lot of people before Justice Barrett’s confirmation said Roberts was the most powerful chief justice in decades—where he was the Chief, had the assigning power when he was in the majority, and was really the swing vote in these five-four cases. But then after Barrett’s confirmation, Roberts went from being extremely powerful to being, I guess you could say, the third wheel, if you were talking about a couple, but really the sixth wheel: the conservative five could do whatever they wanted without Roberts’s help. And we saw this in Dobbs, where, as to the issue of Mississippi’s specific limit on abortion, the Chief also wanted to uphold it, but without overruling Roe officially, etc. But he was no longer essential.
I feel that in this Term, Roberts has become super powerful again, because with various combinations—either Roberts and Barrett or Roberts and Kavanaugh—Roberts controls the outcome. In the case about what we mean by Election Day, he and Barrett joined with the liberals to form the five-justice majority. In birthright citizenship, the Chief and Barrett joined with the liberals to form the five-justice majority.
ZBS: And Justice Barrett is getting a lot of criticism, as we’ve seen in the past, from some right-wing circles.
DL: Yes.
So is it fair to say that the Roberts Court is once again Roberts’s Court?
ZBS: We have a great piece by Richard Re coming out on just this—the different phases of Chief Justice Roberts—and he maintains that point, and I think he makes it brilliantly. But I’m not entirely convinced. I think this has been the Roberts Court since he first sat on it. If you look at the raw numbers of him being in the majority, even during those days—the middle period—they were still really high.
Now, it is true that in certain cases, which everyone points to, like Dobbs, they say, “Well, what about that one?” But that was Roberts trying to be his gradualist self, trying to deal with institutional concerns. Yes, there are outliers, but overall, from the get-go, I do think this has been the Roberts Court.
DL: Fair enough. That is definitely interesting. And of course, the Chief, as he tends to do, also plays a very powerful role in writing some of the most important opinions. Once again, he had no separate opinions this Term, just as was the case last Term. And he wrote some biggies here. He wrote birthright citizenship, Barbara. He wrote the executive-power and independent-agency cases. What do you make of the Chief as a justice—not in his “chiefy” role, but in his role as justice, jurist, and legal writer?
ZBS: He’s a brilliant writer. He writes so cleanly. I do get a little frustrated, because sometimes I think there’s some obscurantism, in that he can brush over some major points and when you read it you’re like, “Oh, it sounds reasonable.” And then you think about it and you’re like, “Oh, well, what about this and this?” So it’s almost too clean, or occasionally too clever by half.
He certainly wants to at least create or maintain the institutional role. I don’t know if he’s been successful in that. We look at the polling of the Court, and they’re not in a great place. That said, given the polarization in our society, I don’t know if it would be possible for the Court to be in a good place, as folks have essentially turned on every major institution, and I don’t think they see the Court as any different.
DL: Your point on his writing style really reminded me of something that Will Baude said to Dan Epps on Divided Argument recently, where Will was also, like you, praising the Chief’s writing style, but said that sometimes it can be deployed very powerfully to make substantive points, and sometimes it can be deployed very successfully to, again, elide certain things that are messy.
So, overall, returning to the 30,000-foot level, I would say that this Term was pretty predictable in terms of outcomes. We thought they would not uphold tariffs. They didn’t. We thought that they would uphold birthright citizenship. They did. Would you agree this Term was pretty predictable, at least in terms of outcomes?
ZBS: Overall, yes. There were a few surprises. One was Watson v. RNC, the mail-in ballot case, where I think most folks thought the Court would not allow these state laws—allowing votes postmarked by Election Day and received five days later—to stand. And I think a lot of folks were predicting, “Oh, since it advantages the Republican Party to get rid of these laws, they’re going to vote that way.” They did not—which, again, shows you that you cannot always predict this Court, especially along ideological lines. So that case went a little differently than we were predicting.
Exact vote breakdowns weren’t as easy to predict. I know you kind of got it right in Trump v. Barbara, but I thought that was honestly going to be a 7-2 case, and I think a lot of Supreme Court watchers did as well.
DL: Yes, I will congratulate myself. I predicted the lineups and splits in both tariffs and birthright fairly clearly.
And then didn’t we have a little bit of a surprise with the transgender athletes case—another instance of, I guess you could say, the liberals not being as liberal as maybe some hoped?
ZBS: We did. And the surprise there, to a certain extent, was that we thought the liberals might find these state laws to be a violation of Title IX, when in fact they did not. As for the issue of whether it was constitutional to ban transgender athletes from girls’ and women’s school sports, they basically would’ve kicked it back to the lower court, unlike the majority. So there, the split was kind of how folks were predicting—but that’s right, it didn’t exactly break down as we would’ve thought.
DL: Turning from opinions to arguments—which have been over for a while now, but Court watchers still really do enjoy listening to them—are there some oral arguments that you would highlight as either some of the best or the most interesting of the past Term?
ZBS: I’ll just go into one: Paul Clement—who argued an astounding number of cases this Term—and his argument in Trump v. Cook. His strategy in that case was to throw as many things at the wall as he could and see what ultimately stuck. The question was whether Trump had the power to fire Federal Reserve Governor Lisa Cook for cause, based on allegations of mortgage fraud. Basically, Clement came before the Court very casually and said, “Well, this fails for this reason and this reason and this reason and this reason.” He was just giving them so many reasons, so many hooks for his side to win on. I think that, even though the opinion that came down didn’t fully embrace all of Clement’s theories, it was really impressive—just how much he threw at them with that method of argumentation.
Now, what’s interesting in that case is that, though Lisa Cook is protected for now—since it was a case about her not receiving the correct minimal procedure—that could certainly change in the future. So it doesn’t mean that it’s going to be a permanent win. But the way Paul Clement set it up was pretty impressive.
DL: I totally agree. I wrote a Bloomberg Law column titled “Paul Clement’s Cook Argument Is a Master Class in Oral Advocacy.” To quote a line from the argument, he had “backups to his backups to his backups.” He just had so many fallback positions, and I think it ended up being vindicated, because the Court did seize upon some of his arguments in terms of how they resolved the case.
ZBS: And anytime Lisa Blatt was up there—for example, in the Hunter case—you knew it was going to be a real ride. And the thing with Lisa Blatt, whom you’ve talked with on this podcast before, is that she’s so informative but also entertaining. And you could tell the justices—and I think especially Justice Alito—just love it, as a breath of fresh air from the sternness and unforgiving seriousness of so many of the oral advocates.
DL: Yes, I totally agree with you. I think there is an argument that Paul is the GOAT, or at least the GOOT, the Greatest of Our time. (I don’t know about all these dead people because I wasn’t around for them.) And I think Lisa is the FOAT—the Funniest of All Time. I don’t think John W. Davis or Francis Scott Key or anyone was generating as many laughs as Lisa does.
ZBS: On the GOAT argument, you could also go with Daniel Webster, who I know argued 150 cases before the Supreme Court and won some major ones. But I don’t think he is in the same category as Lisa Blatt in terms of humor and bringing something special to the Court. No offense to Daniel Webster—or Lisa Blatt.
DL: We’ve heard talk lately about the Supreme Court possibly changing the format of oral argument. At some recent judicial conferences, where they spoke in their capacity as circuit justices, both the Chief Justice and Justice Alito said, “Oh, it’s getting a little long.” Any thoughts on that, in terms of predictions or, normatively, what you—if you were Chief Justice or king—would want them to do?
ZBS: Well, oral argument is way too long. Right now there are separate rounds: a free-for-all and then a seriatim round, where the justices question the advocates, one justice after the other. And what ends up happening is they just repeat the same points over and over. The justices repeat the same points. The oral advocates repeat the same points. Then you have the other advocate repeating the same points. So these arguments are just stretching and stretching and stretching. Something needs to be done. And I think that maybe it’s reducing the seriatim round, or maybe it’s just having greater control over justices going in and out—because it’s not really the advocates; it’s often the justices. The advocates have very little power in that regard. But yes, I certainly agree that oral arguments need to be reformed. They’ve reached a point where we’re getting not much of value after a certain amount of time, and I do hope that changes are instituted sooner rather than later.
DL: Okay. Well, we’ll see what happens when October Term 2026 begins.
ZBS: I’m not convinced, given how quickly the Court moves in terms of its own institutional processes, that this is going to happen anytime soon.
DL: You know what? Sometimes I do this with Sarah Isgur on Advisory Opinions: I’ll make a wager with you. I think that by OT 2026—the first Monday of October 2026—we will have a new system in place, or maybe some tweaks. Maybe they won’t overhaul the entire system, but maybe they’ll do a pilot or an experiment.
ZBS: I doubt it, just because the Court really enjoys not listening to people about institutional changes like that until they wind down. And when the Court is convinced, “Oh, everyone has shut up”—then they’ll change it.
DL: Well, again, if I will pat myself on the back, the current format is something that I actually proposed in a post, I don’t know, a couple of years ago, where I said they should have a free-for-all and then a seriatim round, combining the pre- and during-pandemic approaches.
ZBS: Right. And it made a certain amount of sense during the pandemic. I also like that it brought out Justice Thomas: it made him more comfortable speaking, because he didn’t think it was just this nonsensical free-for-all. So it served its purpose, for sure. I just think now it’s time to change it, and I certainly hope you’re right that it happens before the next round of oral arguments in the now upcoming Term.
DL: Before we go to the speed round, let’s talk about the upcoming Term.
ZBS: By the way, one of the mistakes people naturally make is the idea that this Term just ended, but technically, the Term does not end until the instant before the gavel bangs on the next Term.
DL: So OT 2026 is still upcoming because it begins officially on the first Monday of October?
ZBS: Correct.
DL: Okay. So looking ahead to the upcoming Term, what are some of the biggest cases that have been granted so far?
ZBS: I personally think the biggest cases that have been granted are the AR-15 cases. These cases have been effectively pending before the Court for so long, and everyone was wondering, “When are they finally going to grant them?” And at the end of their oral arguments, right before their summer recess—during what’s called the “cleanup conference”—they finally granted two of these cases. And the question is whether the Second Amendment protects the right to possess AR-15s, or semi-automatic rifles in general.
What’s so fascinating about these cases is not only that they’re obviously very important to Second Amendment advocates, but how the Court is going to use them to define text, history, and tradition in the wake of Bruen and originalism.
It’s going to be really interesting to see what factors they look at here. One of them is common usage. There’s no doubt that semi-automatic rifles are among the most popular guns. On the other hand, you have the argument, which a number of lower courts have accepted, that these weapons are especially dangerous. So dangerousness factors may be taken into account. And then there’s, of course, finding a historical parallel—it doesn’t have to be a historical twin, but a historical analogue—meaning, what was equivalent to possession of these types of weapons? And of course, when it comes to semi-automatic rifles, there wasn’t anything quite like them at the time of the founding. So how they carve this out—not only in terms of the substantive issue, but how they get to their decision—is going to be really important.
DL: I tend to take something of a realpolitik view on some of these things, which I talked about in my birthright citizenship post. My theory is that the Court is only willing to spend its political capital or put its institutional legitimacy on the line to a certain extent or only up to a point. My main point here—and I think Justice Kavanaugh has pointed this out in past separate opinions on the AR-15 issue—is that millions of Americans own these guns. So because of the status quo, I can’t imagine the Court coming along and essentially “taking them away.” I put that in quotes because it’s not the Court doing it; it will be the Court upholding the law passed by a legislature in a particular state. But if you had to guess, don’t you think they’re going to say the Second Amendment does not allow a state to prohibit ownership of AR-15s?
ZBS: I think this is going to be a major win for Second Amendment advocates who strongly believe that semi-automatic rifles are protected under that amendment. So absolutely, I think this is going to be a huge win in that realm.
DL: One more question before the speed round. What about cases or issues that have not yet been granted or added to the list but that you think will wind up on the Court’s docket for the next Term? I have to think there are a bunch of Trump-related issues kicking around that we think are going to make it to the Court. And actually, let me ask you this—I guess I’ve posed a compound question—what’s pending on the emergency docket right now?
ZBS: Not much of anything. There is, I believe, only one case pending at the moment. This is Students Engaged in Advancing Texas v. Paxton. The question is whether the Supreme Court should vacate a ruling that allowed Texas to enforce a state law requiring parental and age verification for downloading apps from an app store. That’s before the Supreme Court, but it’s really the only major one on the emergency or interim dockets. [Ed. note: On Monday, the Court denied the applications for stays—i.e., Texas can go ahead and enforce its law.]
We may be seeing the Trump ballroom case coming up there—but unlike last year, which was absolutely chock-full of one emergency petition after another from the administration, so far, it’s crickets. And I’m sure the Supreme Court is very happy about that. And we at SCOTUSblog, even though we love our SCOTUS cases, are happy about the break.
DL: Well, one thing I would say is that a lot of the big merits cases this past Term were cases that had percolated or reared their heads on the interim or emergency docket. Are there cases from the past year or two that reared their heads on the emergency or interim docket that we expect to come down the pike as merits cases, à la birthright citizenship? Because remember, first we had the CASA case about universal injunctions, and then we had the main event, in Barbara. So are there cases where we’ve had the appetizer, but the entrée is on its way?
ZBS: Not like last year, and I don’t honestly see the ballroom case reaching that. I will say that with this administration and the executive orders it might issue, it’s entirely unpredictable. So a month or two from now, we might say, “Oh, my gosh, there is this major blockbuster that is about to hit—or has hit—the emergency or interim docket.” Then that’s going to become a merits case, and a huge case for next Term. But right now, there’s not much there, and there’s not a great indication of what that could be.
DL: Okay, fair enough. Now let’s turn to my speed round. These are four standard questions, and they are the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.
ZBS: One of the reasons—not the only reason, but one of the reasons—I ended up doing criminal defense work is that I could not stand the petty disputes in civil and commercial litigation. These fights I would be part of—where someone was sending the angriest missives, as if you had tortured and killed someone, about a petty document dispute, or one redaction that everyone knows didn’t matter—drove me absolutely nuts. And just that amount of grandstanding and mock outrage—while it was fun at first, when I was like, “Oh, you get to act and do all these things”—over time, it just wears on you, and people are not acting like adults. Whereas in the criminal-law realm, maybe because the stakes are sometimes so much bigger, everyone is often a lot nicer to each other and a lot more civil than you see in that other area.
DL: My second question is, what would you be if you were not a lawyer—or in your case, a legal journalist?
ZBS: Well, I guess I can’t say academic, since I was also that at some point. I would say—and this one might throw you for a loop—a rabbi. And I think it’s because I enjoy public speaking. I enjoy counseling people. That was indeed one of my favorite parts of practicing law. And I like talking about the big questions—the dorm-room conversations late at night where you’re going into the deep stuff—and that is all something rabbis or religious leaders do. On the other hand, I am not good with languages, so Hebrew would not be a real strength of mine, and I am not a deep believer—but in Judaism, you fake it until you make it.
DL: Fair enough. My third question—and I know about this, but I’ll ask for my listeners—how much sleep do you get each night?
ZBS: I’m one of the world’s worst sleepers. I have issues falling asleep. Then I wake up. I have sleep apnea, which is absolutely lovely. So I’d say I can generally get six to seven hours, but it’s a pretty light, unfulfilling sleep.
DL: And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?
ZBS: Yes: take risks. I think that lawyers, especially litigators, tend to be very risk-averse, and so they will find any excuse not to do something or not to jump into something new, whether career- or life-wise. If you are able to, take the risk. Be a little crazy—not too crazy, but a little crazy—and make that jump.
DL: Well, I can’t say I disagree with that advice. Zach, thank you so much for joining me and for everything else in life.
ZBS: Oh, that’s very nice of you to say. That’s probably the nicest thing you’ve ever said to me.
DL: Thanks so much to Zach for joining me, and congratulations and thanks to him and his colleagues for all their great work at SCOTUSblog.
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