Heading into this week, it looked like Steve Bannon’s Supreme Court appeal was headed for a quick rejection. But a new development might give the Donald Trump ally some hope that the court will hear his bid to reverse his 2022 contempt conviction for not complying with the House Jan. 6 committee’s investigation.
After Bannon filed his high court petition in October, the Justice Department waived its right to respond, and the petition was scheduled for the court’s Nov. 21 private conference, where the justices consider the latest batch of petitions seeking review. When a party waives its right to respond and the court doesn’t request one, that’s a good sign that the petition will be denied shortly after the conference.
But on Monday, the court requested a response. That doesn’t mean the court will necessarily grant review of Bannon’s petition, because it only takes one justice to get the court to request a response. (Per the court’s practice, the docket doesn’t say which justice or justices prompted the request). And it takes four justices to grant review.
Indeed, former Kentucky county clerk Kim Davis’ recent rejection shows that these requests don’t necessarily lead to positive outcomes for petitioners. The court had requested a response to Davis’ petition, which sought to overturn the Obergefell precedent affirming same-sex marriage rights, and then the court denied it Monday without any justices dissenting.
But unlike Davis’ appeal, which was doomed to fail from the start, Bannon’s appeal could be more interesting to the justices. At least, it was of interest to judges in the lower courts, where Bannon has lost thus far. For example, in her dissent from the federal appeals court’s refusal to reconsider his case in May, Trump appointee Neomi Rao wrote that his appeal “raises questions of exceptional importance.”
The Supreme Court last year rejected Bannon’s bid to remain free pending his appeal, and he then served a four-month sentence, but that prior refusal to grant extraordinary relief doesn’t automatically mean the court won’t take up the appeal now. Whatever the court winds up doing, an interesting feature of calling for a response is that the Trump DOJ will now have to weigh in on the Trump ally’s appeal. That response is due Dec. 10. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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