Welcome back, Deadline: Legal Newsletter readers. The Supreme Court held a major hearing on transgender rights that highlighted the court’s partisan split, while Democrats kept confirming judges to the lower federal courts before Republicans take over next month. The impending transfer of power also puts a spotlight on clemency, with outgoing President Joe Biden pardoning his son Hunter and his aides reportedly considering pushing the same benefit for potential targets of the incoming administration. And in the dwindling saga of the president-elect’s criminal prosecutions, his two federal cases are gone as we move closer to learning the fate of his two state cases.
Transgender rights were at issue during Wednesday’s hearing in United States v. Skrmetti. The question there is whether a Tennessee law banning gender-affirming care for minors violates the Constitution’s equal protection clause. The court’s GOP-appointed majority seems to think not, though Justice Neil Gorsuch was notably silent. The Trump appointee wrote a 2020 ruling backing transgender workplace protections, and his vote could be important in Skrmetti. The court’s eventual decision, expected by July, could affect similar laws across the country and LGBTQ+ rights more broadly.
Justice Ketanji Brown Jackson drew a parallel to Loving v. Virginia, the landmark 1967 Supreme Court case that struck down the state’s interracial marriage ban on equal protection grounds. Tennessee argues that its law doesn’t discriminate based on sex, which led the Biden appointee to wonder “whether Virginia could have gotten away with what they did here by just making a classification argument the way that Tennessee is in this case.”
That Jackson’s concern stood out illustrates the 6-3 split on the court between appointees of Republican and Democratic presidents. While Biden will get only one Supreme Court appointment in his term, the rift on the nation’s top court places even greater significance on Democrats’ push to confirm judges to the federal trial and appeals courts. This week brought the total number of confirmations during the current administration to 229, as Democrats close in on the 234 judges in Donald Trump’s first term. The coming days and weeks will determine whether they break that number before Republicans take over the White House and Senate next month.
More pardons could come, too, after Biden granted clemency for Hunter on Sunday before he could be sentenced on gun and tax charges. The president previously said he wouldn’t pardon his son, but he argued Sunday that “raw politics has infected this process and it led to a miscarriage of justice.” Whatever one’s views on the matter, it shows the president is capable of granting clemency when he sees an injustice. The bigger question now is whether he’ll do so for more people he isn’t related to, including those for whom he previously signaled support — such as death row prisoners he said should serve life sentences instead and people convicted of marijuana-related crimes.
Meanwhile, Trump is trying to toss his New York and Georgia state cases before he takes office. The president-elect’s New York defense lawyers (whom he named to top DOJ posts in his administration) want Judge Juan Merchan to dismiss the hush money case due to their client’s political victory. Manhattan District Attorney Alvin Bragg gets to respond in a filing due Monday, after which Merchan will decide whether the case moves toward sentencing in the only prosecution of Trump that went to trial. In Georgia, Trump’s lawyers launched a similar effort this week to get out of the state election interference case there. With his two federal cases gone, we’ll soon learn what happens in the murkier question of his state cases, which presidents can’t pardon away or get their attorneys general to dismiss like federal ones. The Supreme Court added to its docket Friday with cases to be argued later this term, over federal habeas corpus litigation and an appeal about whether terror victims can sue the Palestine Liberation Organization and Palestinian Authority in U.S. courts. The justices will take the bench next week for the final hearings of the year, considering a handful of cases including an environmental dispute from which Gorsuch recused this week. 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 Donald Trump’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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