The Supreme Court’s October Term 2025, which concluded recently, revealed a continuing legal realignment where judicial philosophies traditionally associated with one ideological wing are now being adopted by the other. This trend, highlighted in an analysis published on August 28, 2026, by a Harvard Law School professor, indicates a blurring of once-familiar alignments across several key areas of jurisprudence.
One significant shift is observed in the application of originalism. Historically, originalism was a cornerstone for conservatives, exemplified by Justice Antonin Scalia, and often opposed by liberals. However, in cases like Trump v. Slaughter, concerning the president’s removal power over an FTC commissioner, both conservative and liberal justices engaged extensively with original historical materials. Conversely, in Trump v. Cook, which insulated the Federal Reserve from presidential control, Chief Justice John Roberts and Justice Brett Kavanaugh advanced pragmatic arguments rather than originalist ones. This suggests a rise in both liberal originalism and conservative pragmatism, with one originalist theorist noting that only Justice Clarence Thomas primarily employed an originalist method in these two cases. The birthright citizenship case, Trump v. Barbara, further illustrated this, with both the majority and dissent relying on original historical materials, while Justice Kavanaugh’s separate opinion argued for new exceptions to the historical rule.
Substantive due process also saw a notable realignment. In Mirabelli v. Bonta, a conservative supermajority enforced a novel substantive due process right, over liberal dissents. The court asserted it was applying century-old parental rights cases, but the analysis suggests this was a substantial expansion of existing doctrine, regulating teaching and communications by public school teachers. This marks a significant departure from Justice Scalia’s strong opposition to substantive due process, which he viewed as inviting judicial ideology into the law.
The court’s approach to foreign law has also evolved. While conservatives traditionally resisted the use of foreign law, cases like United States v. Skrmetti (on medical treatments for transgender minors) and Little v. Hecox (on state bans for transgender athletes) showed the court discussing international policies. More strikingly, Justice Alito’s dissent in Trump v. Barbara embraced foreign law to challenge the majority’s understanding of birthright citizenship, citing practices in other countries and proposing an understanding of U.S. citizenship contingent on foreign laws, referencing constitutions from Mexico, Guatemala, El Salvador, Honduras, the Philippines, and China.
Regarding stare decisis, the pattern of liberals emphasizing precedent in dissents, mirroring 1960s conservatives, continued. In Cisco Systems, Inc. v. Doe I, Justice Sotomayor’s dissent lamented the court’s diminished respect for stare decisis. Similarly, in Trump v. Slaughter, the majority dismissed the dissent’s emphasis on stare decisis, with Justice Sotomayor’s dissent arguing that overruling a 1935 precedent was destabilizing.
Textualism and deference, previously combined under a single heading, also showed shifts. In Learning Resources v. Trump, a tariffs case, the three liberal justices opposed the major questions doctrine, advocating for a straight reading of statutory text. In contrast, three conservative justices (Chief Justice Roberts, joined by Justices Barrett and Gorsuch) argued for the doctrine’s application, using an anti-deference principle to curb executive action. Three other conservative justices (Justice Kavanaugh, joined by Justices Thomas and Alito) endorsed the doctrine generally but proposed exceptions that did not apply in that specific case.
Justiciability issues, including standing, mootness, and jurisdictional sequencing, also reflect this realignment. In Bost v. Illinois State Board of Elections, a new categorical rule favoring standing for candidates challenging vote-counting procedures was established, based on intuitions about fairness and pragmatic concerns, departing from conventional injury-in-fact requirements. Mirabelli also introduced a new, broad rule for standing, stating plaintiffs likely have standing if they are objects of challenged policies. However, in Trump v. California, an interim docket case concerning an executive order on election integrity, the old alignment re-emerged, with conservative justices voting against standing and liberals for it. Mootness also showed signs of polarization, particularly in Little v. Hecox, where conservatives voted against mootness and liberals in favor. In jurisdictional sequencing, Justice Alito’s plurality opinion in Mullin v. Doe proposed an exception to the Steel Co. rule, allowing for decisions on interim relief before opining on the merits, a view that aligns with a more flexible approach previously advocated by Justice Breyer.
