Legal Docket: The Supreme Court’s fault line

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NICK EICHER, HOST: It’s The World and Everything in It for September 29th, 2025. Glad you’ve joined us. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Next week, the Supreme Court gavels in a new term, with a docket packed with disputes that could shape American life for decades. But before that, we hear from two justices who capture the Court’s fault line: Samuel Alito and Elena Kagan. This summer, Alito sat for an interview at the Hoover Institution; Kagan spoke at the Ninth Circuit Judicial Conference. Between them, you hear the tug-of-war that defines the Court: Is the Constitution locked to its original meaning, or is it a living framework?

EICHER: In the end, it’s not about pure theory—it’s about whose reasoning can bring a majority of colleagues along. That tug-of-war starts with a word you’ve heard in confirmation hearings and debates alike: the word is originalism.

MONTAGE: You are a self professed originalist. / The point of / originalism / is strive to understand what the words on the page mean. / The doctrine of originalism. / Well, here's what I would say about originalism. / Now originalism, it's very careful when you talk about originalism, to understand that people are hearing different things, sometimes, / as if originalism belonged to a party. It doesn’t. / Either way we apply what they meant to do. So in that sense, we are all originalists.

The idea that the Constitution’s meaning is fixed at the time it was written. Justice Alito wears that label proudly—though, as he explains, it’s not a mechanical formula but a disciplined way of reading the text.

ALITO: ….the Constitution is a text and it should be read basically the way other texts are read. We read the words. They’re understandable. The English language hasn’t changed that much since the late 18th century. We can figure out what it means where it refers to legal concepts, established legal principles, we can explore what they were understood to mean at the time, and that’s the way it should be interpreted. So It was an effort to provide a structured, disciplined and restrained way of reading the Constitution.

REICHARD: Even though Justice Kagan has said “we’re all originalists now”, she isn’t really. What she values is the same thing the chief justice values: the High Court’s institutional voice.

KAGAN: If you’re writing for the Court, you have to sound sort of court-like. And that’s partly a matter of style. And everybody in your majority has to be comfortable with it. And that imposes constraints both of style and of substance….and you have to give them something understandable and clear to apply.

Different roads toward one similar end: Rulings the public can follow.

EICHER: If “originalism” is about the starting point of the Constitution, we turn to a Latin phrase to talk about its staying power.

MONTAGE: Stare decisis. / Stare decisis is a very important consideration. / Stare decisis, / which is a shorthand for longer Latin phrase that means, “stand by the thing decided” and “do not disturb the calm.” / Stare decisis the background rule of judicial maintenance of precedence. / The principles of stare decisis look at a number of factors, settled expectations, whether or not precedents have proven to be unworkable, is another consideration. / People like Blackstone would be astonished that when you have written law, that we are applying stare decisis the way we are.

Stare decisis, respect for precedent. The idea is that the Court shouldn’t toss out its past rulings lightly, because stability in the law matters, without being a straightjacket:

ALITO: If it’s egregiously wrong, if it has made a big practical difference—has it settled things, or has it left things in an unsettled state?—those are certainly all considerations that we have to take into account.

That’s the logic behind reversals like Dobbs that overturned the abortion decision Roe v Wade. It also informed the court’s rejection of race-based college admissions, the line of cases that began with Regents of the University of California v Bakke.

ALITO: I think that our constitution is color blind. I find it hard to see how we're going to hold together as a country and a country with people of every race and every ethnicity. How are we going to hold together if we don't regard each other simply as fellow human beings, as fellow Americans and judge people based on their individual characteristics?

Justice Alito frames that conviction in moral terms. To hold the country together, he says, requires fortitude—especially when decisions are politically unpopular.

Justices have to be courageous, and Justice Alito points to an institutional safeguard that allows the court to stand firm.

ALITO: And to be honest, it's a lot easier for me to do that than it is for those college students that I was talking to, because I have life tenure. I've had life tenure for the past 35 years. So in my opinions, I can say what I think is right, and I'm not going to get fired for doing it, and I'm not going to get my pay docked. There may be other unhappy consequences that follow, but for those college students, they're, you know they're going to have to try to hold down jobs, and they may be pressured in exactly the way that I mentioned, to endorse things, accept things, say things that they know are wrong. And I hope they will have courage. I hope they will have fortitude.

REICHARD: Life tenure is meant to insulate justices from politics. But it can also inadvertently raise the stakes: because when a seat is meant to be for life, unstable people sometimes imagine the only answer is violence. Justice Kagan recalled that very danger in the aftermath of Dobbs.

KAGAN: And that's something that my court dealt with, actually a few years ago, when Dobbs came down, when some of my colleagues, that my colleagues on the majority side, were confronted with protests outside their houses, including houses with children in them, and a gunman appeared at one of my colleagues houses, and, and that is scary stuff.

Justice Alito does not downplay the danger—but for him, the weight of the office tips the scales: Justices are not conscripts but conservators of our constitutional order.

ALITO: There is no Supreme Court aptitude test that everybody takes, and so the person who gets the highest score gets the nomination. It's like being struck by lightning. It's a great privilege. Nobody forces us to take the job or keep the job, but if you really love the Constitution and our system of government and want to preserve it, then I do think you have to stand firm.

Another phrase you’ve likely heard tossed around: “shadow docket.” That’s shorthand for those cases the court needs to decide quickly, regrettably, in the shadows, without full briefing and oral argument of the regular legal docket.

You’ll hear senators and commentators using the phrase, frequently pejoratively.

Justice Kagan once used that phrase, but now prefers one less loaded, “emergency docket.”

KAGAN: There are some times that there are emergencies and we have to do something without all the briefing and the argument and the consultation and so forth…. I think we should be cautious about acting on the emergency docket…..And so one should be hesitant about making decisions without any of those things in a way that does disrupt what’s going on in the lower courts unless we really have to.

EICHER: As for Justice Alito, he agrees fast action can’t be avoided at times. But he traces the surge in emergency cases to a deeper cause: congressional gridlock. And as presidents become more assertive, challenges pile up.

ALITO: So as the difficulty of getting legislation passed has increased, presidents have increasingly looked to see what they can do on their own. If you go back to 2014 President Obama famously said, “Well, you know, I may not, I'm not going to depend on trying to get legislation through Congress. I have my phone and I have a pen.” So the pen was what he could do, executive orders, rules, other executive director directives.

Under President Biden that increased, and we had a number of cases here involving the unilateral exercise of executive power by the Biden administration. Forgiving up to $500 billion of student loans, requiring all the participants in Medicare and Medicaid to require their employees to be to be vaccinated, directing Texas to take down the barbed wire it had strung across the border, requiring imposing a moratorium on evictions in areas that were hard hit by COVID. By my count, we had 14 emergency applications filed by the Solicitor General during the Biden years, and now during the first what is it, four months of the Trump administration, I mean, the graph keeps going up and up.

So the President's exercise their executive power, in an assertive way, and that's immediately challenged in district court, sometimes by coalitions of attorneys general from states where the majority is not favorable to whatever the to what the President is doing…..And that's what we’re getting.

Here’s another challenge: the constitution was written in the 18th century. But today’s cases involve things like drones and smartphones, even thermal imaging guns. Yet, Justice Alito doesn’t see “originalism” as a museum piece. It works by drawing analogies from old principles to solve new problems.

ALITO: The meaning of the Constitution does not change, but the world changes, and the issues that come before the court change. And so it's important to understand that originalism is not a scientific formula that yields a result mechanically, if you just feed in the variables, you sit back and and it produces, it produces a result….

I'll give you an example. In 1791 when the Fourth Amendment was adopted, there were no thermal imaging devices. 2001 the court had a case called Kyllo, and the question was whether a police officer seated in a car on a public street where he had every right to be, was searching a house if the officer focused a thermal imaging device on the house, could see through the walls and detect heat emitting objects inside the house.

So you can't look at the world as it existed in 1791 to see what people thought about thermal imaging devices, they didn't exist. So you have to draw an analogy. Was that situation more like a police officer on a public street looking through an open window, not blocked by shades or drapes, and seeing what goes on inside. That is not a search. Is it more like that? Or is it like a full blown search, where officers go inside the house and they can see things that are not visible through a window that the homeowner has left unshaded…

In the end, a bare 5-4 majority ruled that aiming a thermal scanner at a house is a search—meaning police needed a warrant before doing it. The decision reinforced the Fourth Amendment shield around the home … even against technologies the Founders could never have imagined.

Where modern justices need imagination is to discern foundational principles. Which is why Justice Alito calls himself a “modified originalist.” The meaning of the Constitution doesn’t shift with the times. But applying it to today’s facts demands judgment, care, and sometimes creative analogies.

REICHARD: For all the clashes over method and meaning, Justice Kagan pulls the focus back to the institution itself—reminding us that justices, whatever their philosophy, must still work together.

KAGAN: I've noticed that there is some disagreement on the court. (laughter) And you know the disagreement, you know there are different ways in which we disagree, and sometimes the divisions are one thing, and sometimes the divisions are another….And you know that there are some number of cases which are six-three cases on this court. They used to be sort of five-four cases and and I, you know, I don't enjoy that.

I find it frustrating, I find it disappointing, I find it sometimes even maddening….I mean, it's just, it's just a fact of the matter that this sometimes happens on cases that I care strongly about. You know, on the other hand, and you know, I, like all my colleagues on one side of the court, if you want to talk sides, no less than on the other, I respect them. I think that they are all operating in good faith.

Alito agrees. On a court made up of many members, principle meets pragmatism: persuasion, compromise, and precedent are all part of the work.

ALITO: …if you're on a multi member court, and you're trying to produce an opinion that at least four of your colleagues will agree with, you have to make compromises. And scholars, you know, sometimes they jointly write a book or an article, but much of the time, they write on their own, and they don't have to worry about pleasing anybody else, and so that that is a big, a big difference in a system of precedent after a case is decided against you.

Let's say the court makes a decision and I'm in dissent, And now another case comes along that is similar, so the earlier decision is cited as a precedent. I have to make a decision. Do I say I'm sticking to my guns? You were wrong before...Or do I say, Well, I thought you were wrong. I still think you were wrong, but I'll accept, for present purposes, that that is the governing decision, and then try to make the best of that prior precedent.

So those are two examples of ways in which being an originalist judge is quite a bit different from being an originalist law review article, right?...It is tricky. It involves judgment.

Different paths, but both bound to the same oath—and to the same rule of law.

And that’s this week’s Legal Docket!

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