The annual SCOTUSblog Summit, held Wednesday at the Johns Hopkins University Bloomberg Center, brought together former solicitors general, members of Congress, and top corporate lawyers to dissect the Supreme Court’s current state, its institutional pressures, and the political dynamics shaping its future. The event delivered a rare, candid exchange between Senator Dick Durbin (D-Ill.) and Representative Darrell Issa (R-Calif.)—two lawmakers who hold starkly different visions for the Court’s structure, the role of the filibuster, and the legitimacy of the Court’s emergency docket. Their conversation, alongside insights from former Solicitor General Elizabeth Prelogar and a panel of chief legal officers, underscored how deeply partisan divisions have seeped into every facet of the judicial system, and how those divisions complicate even the most seemingly procedural debates.
From Journalism to the Supreme Court: Elizabeth Prelogar’s Unlikely Path
The summit’s opening session featured Elizabeth Prelogar, who served as solicitor general under President Biden and now leads Cooley’s Supreme Court and appellate practice group. In a fireside chat with Zachary Shemtob, the executive editor of SCOTUSblog, Prelogar revealed that as an undergraduate at Emory University, she “thought [she] was going to be a journalist, and that going to law school would be a way to get a foundation to write about the law.” That detour into law school eventually led her to clerk for not one but two Supreme Court justices—Ruth Bader Ginsburg and Elena Kagan. Prelogar described the experiences as profoundly different. Ginsburg, who had already served on the bench for several decades, “really focused on the facts of cases” and viewed cases “through the prism of being about real people with real problems.” In contrast, Kagan was a brand-new justice who had never served as a judge, so the clerkship involved helping “build her chambers and her policies from scratch”—from deciding whether to use bench memos to setting the dress code. Prelogar credited Kagan’s collaborative preparation for oral arguments, which involved gathering all clerks “to talk through every aspect of the cases, and ideally to debate the cases,” as providing “some of my early training” for her future role as a litigator.
When asked about her own preparation for oral argument, Prelogar said her system has “evolved over time,” especially after she became solicitor general with its “relentless schedule.” She became “ruthlessly efficient” and focused on compiling a list of as many as 250 potential questions for which she formulated answers. Shemtob asked whether arguing 36 cases over 12 years becomes less nerve-wracking. Prelogar replied that it definitely gets easier—she has “locked in on what process I need to feel prepared”—but added that “it’s not like you’re ever just cruising and you’re completely relaxed.”
The case she identified as especially meaningful was United States v. Rahim, in which the justices upheld a federal law barring people subject to domestic violence restraining orders from possessing firearms. Prelogar stressed that Congress passed the law because it recognized that when such a person “has access to a firearm, it can often take abuse and turn it into homicide.” She noted that litigating Second Amendment issues in the Supreme Court is difficult, and the solicitor general’s office “really had to think strategically” about which case to bring to the Court on this question. Prevailing in Rahimi, she said, “was really both meaningful and gratifying from the standpoint of validating our legal strategy … but also because it was one of those cases where the stakes were not abstract at all.”
Durbin and Issa: A Rare Bipartisan Exchange on Court Structure and Independence
The third session of the summit featured CNN senior legal analyst Elie Honig interviewing Senator Dick Durbin and Representative Darrell Issa about the relationship between Congress and the courts. The conversation was remarkably candid, exposing fundamental partisan disagreements on life tenure, the filibuster, and the Court’s emergency docket.
Term Limits and Life Tenure: A Divide over Judicial Independence
When Honig asked about term limits for judges and Congress’s power to impose them, Issa urged caution. Even if members believe life tenure isn’t working well, he said, they should not eliminate it without a good solution. “Life tenure has generally worked well,” Issa asserted, and “I don’t think that political pressure would lessen” if it were eliminated. “If we want to maintain the maximum amount of independence for the Supreme Court,” he said, life tenure “is valuable.” However, Issa added that district court judges who remain in their jobs too long can become a problem if they can no longer carry out all functions. “We have to have productive judges,” he emphasized, and indicated that discussions with Chief Justice John Roberts on this issue have been unsatisfactory. “Generally,” he said, “you get pretty hard pushback” from Roberts.
Durbin’s response was more pragmatic. When asked about his views on life tenure, he quipped, “it dependes on the judge.” The remark drew laughter, but it also signaled a willingness to consider individual circumstances rather than a blanket principle.
The Filibuster’s Demise: How It Transformed Supreme Court Confirmations
Honig then turned to the elimination of the filibuster for judicial nominees. Senator Harry Reid ended the filibuster for lower federal court nominees in November 2013; Senate Republicans extended that to Supreme Court nominees in April 2017. Honig asked whether that was a mistake.
Durbin emphasized that Republicans, under Mitch McConnnell, had long blocked Democrats from filling vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. “Vacancies just sat there” until Reid eliminated the filibuster in 2013. But Durbin acknowledged that the end of the filibuster “changed the whole conversation about” the Supreme court, making it much more partisan. “We would have a much different category of justices,” he suggested, if senators needed 60 votes to end a filibuster and move forward with nominations.
Issa was not a fan of the filibuster. He stressed that the “Senate should have to make an up or down vote within a period of time” to ensure that the “good nominees of the president” are not “unreasonably delayed.”
Honig then asked a pointed question: If Democrats were to take control of the Senate in November 2026 and there were a vacancy on the Supreme Court, should the Senate give a qualified candidate nominated by President Donald Trump a vote?
Durbin, who is not running for reelection in 2026, told Honig that the “only senator who has ever changed the tenure and composition of the” Supreme Court “is Senator McConnell.” He referenced McConnell’s refusal after Justice Antonin Scalia’ s death in February 2016 to give a hearing or vote to Merrick Garland, on the ground that it was too close to the 2016 election. McConnnell later confirmed Amy Coney Barrett weeks before the 2020 election. Despite that, Durbin indicated he believed the Senate should vote on a Trump nominee. Issa agreed, saying there should be an up-or-down vote on any or all nominees of any president.
Court Size and Emergency Docket: Two Competing Visions
Issa expressed opposition to House Speaker Mike Johnson’s proposed constitutional amendment to cap the Supreme Court’s size at nine. “If it isn’t broke, don’t fix it,” he said. He added that regardless of the size, “if every case has to be decided by all of them, what incremental value do you get by a larger number?” Durbin seemed to view the question as purely hypothetical, noting that even if such an amendment could get 60 votes in the Senate, it would likely face a presidential veto that Congress would need to override. “Not a realistic conversation in the current political make-up of Washington,” he suggested.
The two lawmakers also clashed over the widespread use of the Court’s emergency docket and whether criticism of that docket is justified. Durbin said he “absolutely” agreed with the criticism. “Is it too much to ask,” he said, “that the court identify where they stand and explain where they stand” on important issues? Issa countered that if you keep asking the court to handle an “infinite number of things separate from their merits decisions,” “you force them to use the tools” they have created. “At the end of the day,” he emphasized, “they’re doing the best they can.”
Corporate Counsel Weigh In: Is the Roberts Court Pro-Business?
The afternoon concluded with a conversation between David Lat, author of the Original Jurisdiction Substack, and three chief legal officers: Brian Callanan of TD Bank US, Brett Gerry of The Boeing Company, and Jeffrey Taylor of ExxonMobil. The discussion—while ostensibly about the Supreme Court’s docket—revealed how large corporations navigate the Court and assess its temperament.
Taking Cases to the Supreme Court: A High Bar, But Not Insurmountable
Lat observed that the justices are issuing relatively few merits rulings these days and asked whether the Court should be taking more business or commercial cases. Taylor noted that ExxonMobil has been involved in several cases recently, including Suncor Energy v. County Commissioner$ of Boulder County, the first case the Court will hear argument in October. “It would be unseemly or gluttonous for me to complain that the court isn’t taking enough business cases,” he said. “We can’t complain about being mistreated.”
Gerry suggested that whether the Court takes enough business cases “depends on what you think of as a business case.” Some cases may not appear to be “business cases” but still affect business, although “it doesn’t feel like there has been as many significant cases in that category” recently.
When asked what factors ExxonMobile considers in deciding whether to seek Supreme Court review, Taylor quipped that as a young federal prosecutor he often believed the Ninth Circuit “screwed up everything” and that the government should appeal everything. But his thinking has changed: ExxonMobil seeks “to be measured about what we’re going to seek.” The company asks whether the issue is “existential or merely an irritant.” “You try to apply some quality control,” he said, but also use outside lawyers with expertise in the Supreme Court.
Gerry noted that at a similar panel last year, another general counsel said the “bar would have to be very high,” but he indicated he was “not sure I agree.” He acknowledged the bar is high, but if he believed the question was “important enough” and “we had the better side of the argument,” then he “wouldn’t be reluctant to seek review.” Callanan joked that “CEOs don’t get as excited about taking a case to the Supreme Court.” For him, the important question was whether the issue is “a recurring, substantial” one.
The Roberts Court: Pro-Business or Just Following the Law?
Lat asked whether the lawyers considered the Roberts court “pro-” or “anti-business.” Gerry countered that it was neither. Instead, the Court is composed of “nine justices who have well-developed, well-thought-through approaches to deciding cases” that lead to a result regardless of who is on what side. Callanan pointed to the tariffs case (Learning Resources Inc. v. Trump) as evidence of the difficulty in making such a determination. Whether it was a pro-business case depends on your vantage point: a lumber company benefiting from tariffs versus a toy store importing products would have entirely different views.
Taylor acknowledged that “if you’re looking to make that argument that the court is pro-business, you can find it,” but it’s also easy to make the argument that the court is anti-business. “And that tells me that they’re calling it as best they can,” he concluded.
As the summit drew to a close, the collective message was one of deep institutional tension. The Court’s legitimacy rests on perceptions of impartiality, but the political battles over its composition, its procedures, and the types of cases it takes are fought openly and increasingly without guardrails. The candidness of Durbin and Issa—from their disagreement on the filibuster’s legacy to their divergent views on the emergency docket—revealed that even in the halls of Congress, there is no consensus on how the judiciary should operate. Meanwhile, corporate counsel suggested that despite the volatility, the Court continues to decide cases on their merits, even if those merits are viewed through sharply different lenses. Whether the Court can maintain that balance in an era of hyperpartisanship remains an open question—one that the next election cycle may force into sharper focus.
