Keeping Watch. Emerging Developments for Litigators

• Pages: 12-12
• Date: 01 January 2026
• Published date: 01 January 2026
• Subject Matter: Civil Law

Published in Litigation News Volume 51, Num ber 2, Winter 202 6. © 2026 by the Amer ican Bar Ass ociation. Rep roduced with pe rmission. A ll rights reser ved. This info rmation or any po rtion thereof

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

Checks on Federal Power as an Aberration, Not a Rule

Intermediate Scrutiny in a Deferential Era

The Near-Total Vanquishing of Campaign-Spending

Restrictions

As Litigation News celebrates its 50th

anniversary and the Supreme Court

opens its doors for the 2025–2026

term, "Keeping Watch" marks the occa-

sion by looking back a half century. The

exercise is simple: Can cases decided

50 years ago tell us anything about this

coming term?

SUPREME COURT

Balance of Powers

The Burger Court of the mid-1970s was,

in its own way, consumed with balance-

of-powers questions. In the 1975–1976

term, that included National League

of Cities v. Usery. After an amendment

to the Federal Labor Standards Act

(FLSA) expanded worker-friendly labor

laws to state employees not involved in

interstate commerce, the Court inter-

vened, invoking the Tenth Amendment

and ruling that FLSA expansion inter-

fered “with traditional aspects of state

sovereignty.” That check on federal

power was short-lived: Less than 10

years later, National League of Cities

was f‌latly reversed, with little regard for

stare decisis concerns.

Many of this term’s battles pit the

federal executive against a variety of

adversaries. In Trump v. Illinois, it’s once

again federal power against state power,

with the Court weighing in on whether

the Trump administration’s deployment

of the national guard in Chicago and

other major cities is a proper exercise of

executive power. In twinned tari cases,

it’s executive power against legislative

power, asking whether the administra-

tion’s sweeping set of taris are sim-

ply revenue-raising taxes that could be

implemented only by Congress.

Equal Protection

Craig v. Boren also arrived in the

1975–1976 term, introducing “intermedi-

ate scrutiny” as the standard used to

evaluate gender-based classif‌ications.

At issue was an Oklahoma law that

AND MORE . . . BY C . MICHAEL J UDD, LITIGATION NEWS ASSOCIATE EDITOR

allowed women to drink low-alcohol

beer at age 18 while requiring men to

wait until age 21. The Court struck that

law down as violating the equal protec-

tion clause. In doing so, it insisted that

gender classif‌ications must both “serve

important governmental objectives”

and be “substantially related to achieve-

ment of those objectives.”

Fifty years later, Craig v. Boren fea-

tures in a pair of Equal Protection chal-

lenges, now consolidated before the

Court and set to be decided this term.

Little v. Hecox centers on an Idaho law

banning transgender women and girls

from participating in public school

sports. Invoking Craig v. Boren, the

government has argued that “reserv-

ing women’s sports for female athletes”

constitutes an important state interest.

West Virginia v. B.P.J. examines a similar

state law, adding Title IX as a potential

additional basis to strike the law down.

In B.P.J., the athlete-respondent insists

that the West Virginia law doesn’t even

satisfy rational basis review—much less

intermediate scrutiny—because the

statute “categorically exclude[s] trans-

gender girls,” even when those athletes

have no demonstrated athletic advan-

tage and “in contexts where there is no

connection to fairness or safety.”

Elections and Political

Speech

An important elections-and-speech

case is also celebrating its 50th birth-

day this term. In a sprawling opinion,

Buckley v. Valeo found that limits on

individual contributions to candidates

and campaigns did not violate the First

Amendment but that several other lim-

its—including limits on a candidate’s

own campaign spending—did. In the

decades that followed, the Court con-

tinued to invoke the First Amendment

to loosen limits on political spending.

Some restrictions remain, of course,

including a limit on coordinated cam-

paign expenditures—that is, candidate-

directed advertising spending by a

political party. That restriction, upheld

by the Court in 2001, will be reevalu-

ated this term in a case called National

Republican Senatorial Committee v.

FEC. That challenge, f‌iled several years

ago in Ohio, was brought by a plain-

ti group that included then-Senator,

now Vice-President J.D. Vance. Perhaps

unsurprisingly, then, the Trump admin-

istration has opted not to defend the

underlying election law, leaving the

defense to appointed counsel. If the

last half century’s trend carries, the lim-

itation on coordinated expenditures will

fall by the time the term closes.

It’s possible, in the end, that this

term may contain echoes of a case

one year too old to be marking its

50th year. That case is United States

v. Nixon—that generation’s sharpest

test of executive privilege and separa-

tion of powers. In 1974, the Court ruled

against an embattled president—and

did so unanimously. This term may hold

surprises. But if the Roberts Court of

the 2025–2026 term imposes meaning-

ful checks on the Trump administration,

it is dicult to imagine it doing so as

forcefully as the Burger Court did a half

century ago.

RESOURCES

Nat'l League of C ities v. Usery, 426 U.S.

833 (1976) .

Garcia v. San Anto nio Metro. Transit Auth.,

469 U.S. 5 28 (1985).

Trump v. Illinois, 25A443.

Learning Res ., Inc. v. Trump, 24-1287;

Trump v. V.O.S. Sele ctions, Inc., 25-250.

Craig v. Boren, 429 U .S. 190 (1976).

Little v. Hecox, No. 24 -38; West Virginia v.

B.P.J., No. 24 -43.

Buckley v. Valeo, 424 U. S. 1 (1976).

Nat'l Repub lican Senatorial Comm . v. Fed.

Election Comm'n, No. 24-621.

WINTER 202 6 • VOL. 51 NO. 2

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KEEPING WATCH EMERGING DEV ELOPMENTS FOR LITIGATORS