The Supreme Court will launch its new term Monday with a focus on controversial prior rulings and a review of President Donald Trump’s sweeping executive agenda.
After a three-month recess, the nine justices met together for the first time this week to reset their docket, and discuss appeals that have piled up over the summer. The high court will resume oral arguments to confront issues like gender identity, election redistricting, and free speech.
But looming over the federal judiciary is the return of Trump-era legal battles. The administration has been winning most of the emergency appeals at the Supreme Court since January, that dealt only with whether challenged policies could go into effect temporarily, while the issues play out in the lower courts — including immigration, federal spending cuts, workforce reductions and transgender people in the military.
In doing so, the 6-3 conservative majority has reversed about two dozen preliminary nationwide injunctions imposed by lower federal courts, leading to frustration and confusion among many judges.
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Now those percolating petitions are starting to reach the Supreme Court for final review — and legal analysts say the bench may be poised to grant broad unilateral powers to the president.
The justices fast-tracked the administration’s appeal over tariffs on dozens of countries that were blocked by lower courts. Oral arguments will be held in November.
In December, the justices will decide whether to overturn a 90-year precedent dealing with the president's ability to fire members of some federal regulatory agencies like the Federal Trade Commission.
And in January, the power of President Trump to remove Lisa Cook from the Federal Reserve's Board of Governors will be tested in a major constitutional showdown. For now, the Biden-appointed Cook will remain on the job.
"A big fraction of the Supreme Court's docket will present the question: ‘can President Trump do?’— then fill in the blank. And that could be imposing tariffs; firing independent board members; removing illegal aliens; sending the military into cities like Los Angeles," said Thomas Dupree, a prominent appellate attorney and constitutional law expert. "So, much of what the Supreme Court is deciding this term is whether the president has acted within or has exceeded his authority."
The tariffs dispute will be the court's first major constitutional test on the merits over how broadly the conservative majority high court views Trump's muscular view of presidential power, a template for almost certain future appeals of his executive agenda.
In earlier disputes over temporary enforcement of those policies, the court's left-leaning justices warned against the judiciary becoming a rubber stamp, ceding its power in favor of this president.
After a late August high court order granting the government the power to temporarily terminate nearly $800 million in already-approved health research grants, Justice Ketanji Brown Jackson said her conservative colleagues had "ben[t] over backward to accommodate" the Trump administration. "Right when the Judiciary should be hunkering down to do all it can to preserve the law's constraints, the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins."
But some of Jackson's colleagues have denied they are paving the way for Trump's aggressive efforts to redo the federal government.
"The framers recognized, in a way that I think is brilliant, that preserving liberty requires separating the power," said Justice Brett Kavanaugh earlier this month at a Texas event. "No one person or group of people should have too much power in our system."
And Justice Amy Coney Barrett told Fox News' Bret Baier three weeks ago that she and her colleagues "don't wear red and blue, we all wear black because judges are nonpartisan ... We're all trying to get it right. We're not playing for a team."
Barrett, who is promoting her new book, "Listening to the Law," said her court takes a long-term view, and is not reflexively on Trump's side.
"We're not deciding cases just for today. And we're not deciding cases based on the president, as in the current occupant of the office," Barrett told Fox News. "I think the judiciary needs to stay in its lane ... we're taking each case and we're looking at the question of presidential power as it comes. And the cases that we decide today are going to matter, four presidencies from now, six presidencies from now."
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These sharp court fractures between competing ideologies will likely escalate, as the justices begin a more robust look at a president's power, and by dint, their own.
"He who saves his Country does not violate any Law," Trump cryptically posted on social media a month after retaking office.
Federal courts have since been trying to navigate and articulate the limits of the executive branch, while managing their own powers.
Yet several federal judges — appointed by both Democratic and Republican presidents — have expressed concern that the Supreme Court has been regularly overturning rulings by lower courts dealing with challenges to Trump administration policies — mostly with little or no explanation in its decisions.
Those judges — who all requested anonymity to speak candidly — tell Fox News those orders blocking enforcement have left the impression they are not doing their jobs or are biased against the President.
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Those frustrations have spilled into open court.
"They’re leaving the circuit courts, the district courts out in limbo," said federal appeals Judge James Wynn about the high court, during oral arguments this month over the Department of Government Efficiency (DOGE) access to Social Security data.
"We're out here flailing," said Wynn, an Obama bench appointee. "I'm not criticizing the justices. They're using a vehicle that’s there, but they are telling us nothing. They could easily just give us direction, and we would follow it."
The president may be winning short-term victories in a court where he has appointed a third of its members, but that has not stopped him or his associates from criticizing federal judges, even calling for their removal from office when preliminary rulings have gone against the administration.
"This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!!" Trump posted on social media, after a March court ruling temporarily halting the deportation of alleged Venezuelan gang members.
The target of the attack was DC-based Chief Judge James Boasberg, appointed to the bench by President Obama.
Top Trump White House policy advisor Stephen Miller, in interviews, has warned against some unaccountable and "communist crazy judges" "trying to subvert the presidency."
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According to an analysis by Stanford University's Adam Bonica, federal district judges ruled against the administration 94.3% of the time between May and June.
But the Supreme Court has in turn reversed those injunctions more than 90% of the time, giving the president temporary authority to move ahead with his sweeping reform agenda.
As for the rhetoric, the high court has walked a delicate path, reluctant to criticize Trump directly, at least for now.
"The fact that some of our public leaders are lawyers advocating or making statements challenging the rule of law tells me that, fundamentally, our law schools are failing," said Justice Sonia Sotomayor at a recent Georgetown University Law Center event, without naming Trump by name. "Once we lose our common norms, we’ve lost the rule of law completely."
Chief Justice John Roberts in March offered a rare public statement criticizing impeachment calls from the right.
But several federal judges who spoke to Fox News also wish Roberts would do more to assert his authority and to temper what one judge called "disturbing" rhetoric.
The U.S. Marshals Service — responsible for court security — reports more than 500 threats against federal judges since last October, more than in previous years. Law enforcement sources say that includes Boasberg, who, along with his family, has received physical threats and intimidating social media posts.
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"I think it is a sign of a culture that has, where political discourse has soured beyond control," said Justice Barrett in recent days.
"The attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity," said Justice Jackson in May. "The threats and harassment are attacks on our democracy, on our system of government."
The administration in recent days asked Congress for $58 million more in security for executive branch officials and judges, following the assassination of Charlie Kirk, the conservative activist who led Turning Point USA.
A Fox News poll from this summer found 47% of voters approve of the job the Supreme Court is doing, a 9-point jump since last year when a record low 38% approved.
"Over the past decade, public confidence in our major institutions has declined," says Republican pollster Daron Shaw, who helps conduct the Fox News survey with Democrat Chris Anderson. "The Court’s rebound could reflect its attempts to steer a middle course on politically polarizing questions or indicate an uptick in positive attitudes toward our more venerable institutions."
Still, by more than 2-to-1, more voters think the court is too conservative (43%) than too liberal in its decisions (18%, a low), while 36% think the court’s rulings are about right. That continues a seven-year trend.
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The public's views of the court's ability to steer clear of politics will be tested this term.
Besides the two Trump-related appeals, the justices are already scheduled to decide:
But court watchers are pointing to several hot-button pending appeals where "stare decisis" or respect for established landmark court rulings will be tested: same-sex marriage and communal school prayer.
The high court is expected to decide in coming weeks whether to put those petitions on its argument calendar, with possible rulings on the merits by June 2026.
But other cases are already awaiting a final ruling: the use of race in redistricting under the Voting Rights Act; and independent government boards.
"I think the likeliest candidates for being revisited are the ones that involve the power of the president to fire the heads of federal agencies," said attorney Dupree. "This is an old precedent that's been on the books really back since the New Deal, and it's come into question in recent years. There's been a long shadow hanging over these decisions, and I think the Supreme Court is poised to revisit those this term and in all likelihood overrule that."
The court may have already set the stage, by using the emergency docket in recent weeks to allow Trump to temporarily fire members of several other independent federal agencies without cause. The court's liberal wing complained that giving the president that power without explanation effectively unravels the 1935 precedent known as "Humphrey's Executor."
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"Today’s order favors the president over our precedent," said Justice Elena Kagan in a blistering dissent against Trump's removal of Gwynne Wilcox from the National Labor Relations Board.
The court's "impatience to get on with things — to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever) — must reveal how that eventual decision will go" on the merits, added Kagan.
Sotomayor said recent overturned precedents were "really bad" for certain groups of people.
"And that’s what’s at risk, is in each time we change precedent, we are changing the contours of a right that people thought they had," she said this month. "Once you take that away, think of how much more is at risk later. Not just in this situation."
The conservative justices in recent years have not been shy about revisiting cases that had been settled for decades but now have been overturned: the nationwide right to abortion, affirmative action in education and the discretionary power of federal agencies.
Other pending issues the justices may soon be forced to confront which could upset longstanding precedent include libel lawsuits from public officials, flag burning and Ten Commandments displays in public schools.
One justice who has been more willing than his benchmates to overrule precedents may be its most influential: Justice Clarence Thomas.
"I don’t think that any of these cases that have been decided are the gospel," Thomas said last week at a Catholic University event. If it is "totally stupid, and that’s what they’ve decided, you don’t go along with it just because it's decided" already.
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