On Monday, October 5, the Supreme Court opens its 2026-27 term. Last term the Court overruled Humphrey’s Executor, ruled on the FCC’s forfeiture authority, and narrowed contributory copyright liability.
At the TPI Aspen Forum, Ian Gershengorn of Jenner & Block and James Speta of Northwestern University Pritzker School of Law discussed whether the Court has become a rubber stamp for the executive branch and what its decisions mean for technology regulation. TPI’s Jonathan Nuechterlein moderated.
Five takeaways
1. Arguments that were once unthinkable now get votes. Gershengorn said the Court is not a rubber stamp but has enabled the executive branch. He pointed to the administration’s losses on tariffs and birthright citizenship and to its 22 straight wins on the emergency docket. He said the Court has shifted the Overton window, so that arguments that were unthinkable five years ago now draw three, four, and sometimes five votes. Speta added that the Justice Department had never before asked the Court to overrule Humphrey’s Executor, and that the losses on tariffs and birthright citizenship did not reduce the structural power of the presidency.
2. The Fed is the exception on removal. The Court held 6-3 that for-cause removal protections of the kind upheld in Humphrey’s Executor are unconstitutional. Gershengorn called the decision a real shift of power to the executive branch. A companion case preserved for-cause protection at the Federal Reserve, citing a settled tradition of keeping monetary policy free of political interference. Speta called that ruling a very important win for the administrative state. He doubted that courts would interpret the protection vigorously or that the same argument would work for the FCC or any other agency.
3. At the FCC, attention shifts to the partisan balance requirement. The FCC’s statute gives commissioners no for-cause protection. Gershengorn said the focus will likely move to the agency’s quorum and political balance requirements, including whether the president could lawfully remove the lone remaining Democratic commissioner. Speta doubted that the partisan balance requirement would survive a challenge before this Court.
4. Agencies have little room left to impose monetary penalties. In FCC v. AT&T, the Court found no Seventh Amendment problem with FCC forfeitures because a forfeiture order is not conclusive. A company has no obligation to pay until the FCC goes to court, where the agency bears the burden of proof in a new trial. Speta said the case is a step in the same direction as Jarkesy and that there will be a very small remit for monetary penalties coming out of administrative agencies.
5. Cox v. Sony narrows contributory copyright liability. The Court held that ISPs are not liable for failing to cut off subscribers who repeatedly infringe. Speta said the decision requires specific evidence of intent and wipes out lower court cases that based liability on knowledge and material contribution. He called the new rule a bit unstable, in part because the opinion dwells on the steps Cox took against infringement.
Gershengorn said a largely inactive Congress is one reason so much attention lands on the Court. When the Court says Congress can fix a problem and Congress does not, the Court gets the last word.
Speakers: Ian Gershengorn, Jenner & Block, and James Speta, Northwestern University Pritzker School of Law
Moderator: Jonathan Nuechterlein, Technology Policy Institute and George Washington University
