Appellate experts preview upcoming SCOTUS cases at NYU Law Forum
On September 30, an NYU Law Forum, sponsored by Latham & Watkins, examined the emphasis on originalist and textualist legal thought in the US Supreme Court’s last term and previewed what Court watchers might see in the new 2026–2027 term.
The panel featured Samir Deger-Sen, a partner at Latham & Watkins and former law clerk to Associate Justice Anthony Kennedy; Jack L. Millman ’16, a partner at Howell Shuster & Goldberg and former law clerk to Associate Justice Clarence Thomas; and Mathura Sridharan ’18, solicitor general of the state of Ohio. Daniel Hemel, John S. R. Shad Professor of Law, moderated the discussion.
“I think the largest theme comes from a broader question on originalism and originalist methods, which is: When does history become dispositive?” said Sridharan in the panel’s discussion of likely trends in the upcoming Court term. “And the related question that…often pops up in originalist methods, which is: What about the historical principle makes it dispositive?”
The group explored some important current cases—including Suncor Energy Inc. v. County Commissioners of Boulder County and St. Mary Catholic Parish v. Roy–in light of the Court’s increasing use of originalist and textualist methodologies.
WATCH THE VIDEO ON THE 2026 SUPREME COURT PREVIEW:
The group first discussed Suncor Energy Inc., set to be argued just a few days later, on October 5. The case raises the question of whether federal law preempts state-law claims against fossil-fuel companies for contributions to climate change. “I think certainly on the petitioner’s side, there’s a very intuitive, high-level theme, which is: Can it really be the case that state tort law can regulate or can penalize a subset of actors who contribute to what is fundamentally not just an interstate but a global problem?” said Deger-Sen. At the same time, he observed, the conventional preemption framework does not fit neatly because the Clean Air Act does not clearly occupy the field and expressly preserves certain state regulatory authority.
“I do wonder whether, especially now that Justice Alito has been recused—it takes four votes to grant the petition, but obviously five votes to win, and probably one of the votes to grant the petition is Justice Alito—I do want to know whether the Court might now duck this issue, maybe by [dismissing it as improperly granted], or maybe by just ruling on the jurisdictional issue,” Deger-Sen said.
Another case the panelists scrutinized was St. Mary Catholic Parish v. Roy, scheduled for argument in November, a religion-based challenge to the nondiscrimination requirements of Colorado’s universal preschool program. While predicting that the Court would move carefully, Millman suggested that the Court might instead choose to confront public accommodation law directly. “The Court has sort of avoided, so far, the tension between the line of cases concerning the validity of public accommodation laws and the fact that public accommodation laws have a long history going back deep into the common law in England that say, yes, the state can compel certain institutions open to the public to serve all comers and that you don’t have a constitutional right to end that. And here, this is getting closer and closer to the Court potentially undermining that as applied to religious exceptions,” he said.
The group considered several petitions to the Court that had not yet been granted or denied, including a case involving mandatory display of the Ten Commandments in Texas public school classrooms and two circuit court decisions that concern the federal ban on home distilling. The Ten Commandments case, Nathan v. Alamo Heights Independent School District, could require the Court to revisit the continuing force of Stone v. Graham, a 1980 Supreme Court decision that found unconstitutional a Kentucky law requiring public schools to post a copy of the Ten Commandments. The panelists also discussed the possibility that the home-distilling cases, Ream v. Department of the Treasury and Department of Justice v. McNutt, present a broader question about the scope of Congress’s power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution.
These cases, too, raise some of the same themes discussed at the Forum: how far the Court’s originalist methodology should extend, when historical practices should control outcomes, how much weight to give precedent and reliance interests, and which established doctrines the Court’s majority may decide to preserve, modify, or revisit.