A former U.S. solicitor general and a principal deputy solicitor general analyzed the impact of the current Supreme Court’s changing of precedent under the Trump administration at Georgetown University’s annual Bernstein Symposium April 20.

Paul Clement and Neal Katyal, who served in the George W. Bush and Obama administrations, respectively, argued against current presidential advances in their recent cases and how this administration may affect the future of the court. The annual Bernstein Symposium — created in 1994 to honor the late Marver H. Bernstein, a Georgetown politics and philosophy professor — invites notable public figures to address the challenges that arise from confronting public institutions.

Clement said the Supreme Court’s use of the emergency docket, which is used for urgent cases that are heard without full oral arguments, has diverted resources from other decisions. 

“My criticism is that the court is doing so much work now on the emergency docket that it does two things that I think are counterproductive,” Clement said at the event. “One thing is, it further skews the cases towards cases that involve the government. Because you look at the emergency docket, it’s not even General Motors or Meta or whoever are the kind of big private players today that are getting a lot of use out of the emergency docket or getting cases granted, it’s almost all government.”

Recent cases on the emergency docket include Tangipa v. Newsom, about the constitutionality of California’s congressional map for the 2026 elections, and Castro v. Guevara, which argues a 7-year-old girl from Texas should be deported to Venezuela with her mother.

Katyal said decisions on the emergency docket can influence the court’s final decisions.

“When I went to argue the case months later, I’m convinced that that emergency decision distorted the way they thought about the case on the merits,” Katyal said at the event. “It wasn’t a free tabula rasa determination. It was one that was colored by the fact that the solicitor general yelled emergency early, months earlier.”

Katyal said the major questions doctrine, a Supreme Court principle which requires clear congressional authorization on major administrative decisions, shaped his winning argument in a case challenging Trump’s tariff power. 

“I strategically made the choice to litigate the case, not about this president, but the presidency and about general powers, and ask for the justices to imagine any other president, including a democratic president who wants to declare a climate emergency and that there were tariff rates for oil-producing countries or things like that,” Katyal said. “I think that was critical.”

Clement said Katyal’s win demonstrated the judiciary’s strength despite the Trump administration’s arguments.

“What a great country to live in, where, despite all that, the Supreme Court still was able to make the decision that this was an invalid exercise of presidential authority,” Clement said. “I think that is sort of part of the lesson in this case.”

Clement, who is currently arguing on behalf of Federal Reserve Governor Lisa Cook, challenging the lawlessness of her removal from the board, said Trump has used executive powers for his own personal aims. 

“One of the things that President Trump did in his second administration is he came in with a sort of very strong view that under sort of his theory of article two, presidential power, he could remove without even stating a cause most of the members of the so-called independent agencies — Federal Trade Commission, National Labor Relations Board,” Clement said.

“President Trump grew increasingly frustrated by the fact that the Federal Reserve Board would not lower interest rates, which he very much wanted them to do, and so at a certain point, one of his other government officials brought forth the idea that one of the board governors had some inconsistency in her mortgage application, and that was going to be a basis for the president to remove that governor from the board,” Clement added.

Clement said the current Supreme Court’s more expansive interpretations of legal precedents, such as the Free Exercise Clause within the First Amendment, granting greater religious liberty, are due in large part to Chief Justice John Roberts’ legal background. 

“I don’t think it’s an accident that two areas where I think the law has probably moved the most dramatically, those are areas of the law that the chief justice is fully on board the project, and indeed has written a lot of decisions,” Clement said.

Katyal said the Supreme Court has also changed the way it addresses cases about race.

“I think there’s a fundamental difference in the way the Roberts Court is treating race,” Katyal said. “I do think this Court is very focused on race neutrality in ways that its predecessor was not.”

Clement said that remaining open to challenges has helped him in arguments. 

“It obviously takes a certain amount of self-confidence to go into the Supreme Court and argue a case like this, but I really do think one of the keys to doing it effectively is to have that humility, to really improve and really listen to the feedback again in those reports and internalize it,” Clement said.

Katyal said Georgetown students should focus on bridging partisan divides.

“My serious advice, as someone said earlier, is to be more like Paul,” Katyal said. “We need a little bit of bravery, a little bit more of reaching across the aisle and helping one another, understanding we’re in this thing together.”