Welcome back, Deadline: Legal Newsletter readers. As if there isn’t enough going on with Election Day just weeks away, the Supreme Court is starting a new term. Chief Justice John Roberts and company are coming off a term that featured (among other things) them giving Donald Trump broad criminal immunity and approving his latest presidential run despite his involvement in the Jan. 6 insurrection.
A big open question heading into November is: Will the Republican-appointed majority find a way to put the Republican nominee back in office?
For a brief refresher on how this works: The court hears oral arguments in two-week sessions through April, issuing rulings on a rolling basis and usually wrapping up by late June. Sometimes, the justices stretch into July, as they did when capping off last term with the immunity case. They can also get emergency appeals at any time, which is how last-minute election challenges could reach them on the so-called shadow docket.
So, what legal mischief awaits, besides the election (a big “besides,” I know)? It’s a developing story because the court adds cases as the term proceeds. The court just granted a bunch Friday, including one about gun-maker liability. Heading into the last term, the court hadn’t yet added some of the most significant disputes, like the immunity appeal the justices took up in February. An example of another pending petition the court could still accept is former Trump White House chief of staff Mark Meadows’ bid to move his Georgia state election subversion charges to federal court; that would add yet another wrinkle to the already-hobbled case against Trump, Meadows and others.
But so far, some of the cases the justices are slated to hear involve transgender rights, “ghost guns” and a First Amendment challenge to a Texas law requiring age verification to access sexual content online.
The “ghost guns” appeal — over regulating kits for making untraceable weapons at home — will be heard Tuesday at the court that OK’d deadly bump stocks last term. Wednesday features an unusual capital case hearing from Oklahoma, where even the state says that death row inmate Richard Glossip should get a new trial because of prosecutorial misconduct. But instead of just ordering a new trial outright, the court that backed the Trump-era execution spree has appointed a third party to argue why Glossip — who maintains his innocence — should still be put to death. Even former Trump administration official Ken Cuccinelli thinks the court shouldn’t force this execution.
While the justices declined to save Trump from his 2020 defeat, they’re coming off an unusually Trump-friendly term.
On the election front, the court has already fielded some emergency appeals in recent weeks. The justices divided in partially backing Republican efforts to restrict Arizona voting in August, while last month unanimously rejecting third-party bids from Jill Stein and Robert F. Kennedy Jr. to be on the ballot in Nevada and New York, respectively. We’ll be closely watching the beleaguered court — which faces calls for reform — as more voting-related appeals inevitably reach Washington in the coming weeks. While the justices declined to save Trump from his 2020 defeat, they’re coming off an unusually Trump-friendly term.
The former president’s four criminal cases make the election stakes very real for him. If he wins in November, he can dismiss his two federal prosecutions: the election subversion case in Washington and the classified documents case in Florida. The election case is back in the D.C. trial court, where U.S. District Judge Tanya Chutkan is tasked with figuring out what the high court’s vague immunity test means. The justices can review Chutkan’s work again before any trial goes forward, which wouldn’t happen until long after the election (that is, if Trump loses and can’t kill the case). Smith is separately appealing U.S. District Judge Aileen Cannon’s documents case dismissal to a federal appeals court, where outside groups are calling for the Trump-appointed judge’s ouster. And finally, presidents can’t pardon or dismiss state cases, but Trump’s Georgia and New York ones could be even further delayed if he wins next month’s election. The Georgia case is already tied up with a pretrial appeal over the defense bid to disqualify Fulton County District Attorney Fani Willis. Meanwhile, after Election Day, Judge Juan Merchan in New York is set to decide Nov. 12 whether the immunity ruling upends Trump’s May guilty verdicts for falsifying business records. The GOP nominee’s already-delayed sentencing is set for Nov. 26, but only if Merchan rules against the defense on immunity. Yet, even if Merchan rejects Trump on Nov. 12, the latest sentencing date is still uncertain, because the former president will likely launch an immediate appeal, potentially all the way to the justices. So whether it’s in the election, Trump’s legal cases or both, the high court has multiple opportunities ahead to shape Trump’s — and the country’s — future. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
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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