Welcome back, Deadline: Legal Newsletter readers. The first week of the Supreme Court’s new term is in the books. It featured hearings over “ghost guns” and a rare request from Oklahoma’s top cop to stop an execution. Plus, we were reminded that the investigation into sexual misconduct allegations against Justice Brett Kavanaugh during his confirmation wasn’t much of an investigation.
The court started Monday with the customary annual rejection of petitions that piled up over the summer. Among the many denials were a Biden administration appeal to protect emergency abortion care in Texas and a Pennsylvania GOP challenge to the president’s voter registration push.
Biden’s regulation on “ghost guns” could be safe if Tuesday’s oral argument in Garland v. VanDerStok is any indication. Ahead of the hearing, Chief Justice John Roberts and Justice Amy Coney Barrett had joined the three Democratic appointees to temporarily allow regulation of the kits and parts for making the weapons, which are harder for law enforcement to trace. Perhaps unsurprisingly, then, the hearing reflected a similar dynamic.
We won’t know until we see the final ruling, which, like the other cases that’ll be argued this term, should come by July.
One of the court’s stranger hearings happened Wednesday, in Glossip v. Oklahoma. Part of the strangeness stemmed from the fact that death row prisoner Richard Glossip wasn’t really “v.” Oklahoma. That’s because the state’s Republican attorney general agrees the defendant should get a new trial because of prosecutorial misconduct. But the justices appointed a third party to argue in defense of a state court ruling that, if upheld, would put Glossip (who maintains his innocence) in the death chamber.
While Justices Clarence Thomas and Samuel Alito unsurprisingly sounded ready to rule against Glossip, the hearing left it unclear how a majority of the court will settle the life-or-death appeal. It could come down to the votes of Roberts, Barrett and Kavanaugh.
Speaking of Kavanaugh, he was back in the news personally this week for the sexual misconduct claims that almost kept him off the court during his confirmation process. A new report from Sen. Sheldon Whitehouse, D-R.I., scrutinized the Trump White House’s control of the FBI’s purported probe. “If anything,” the report reads, “the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information.”
Next week, the justices will hear another handful of arguments to complete the October sitting. In keeping with the quirky alignment theme following the Glossip death penalty case, one of next week’s hearings is in San Francisco v. EPA. That is, the caricatured liberal enclave against the agency tasked with protecting the environment (to the extent allowed by the Roberts Court). Backed by industry groups, San Francisco is complaining about how the federal government enforces water pollution rules. The State of California, however, is backing the feds.
Meanwhile, Donald Trump’s legal battle continues against the government he seeks to head again. His lawyers are trying to stop even more negative information about their client from emerging in the federal election interference case. They argued that the special counsel is engaged in “election interference” for continuing to prosecute the case that accuses the former president of criminally trying to subvert the last election he lost to Joe Biden. They said they want to “evaluate litigation options” if U.S. District Judge Tanya Chutkan rules against them when publicizing more damaging information — this time, regarding the appendix to special counsel Jack Smith’s giant immunity brief.
Chutkan ruled against them Thursday, but we don’t have any new information to examine yet, because she paused her ruling for a week so the Trump team can “evaluate litigation options.” We should know next week whether the GOP nominee will attempt any legal challenge to Chutkan’s latest order before the election. But the more significant issue hovering over the prosecution is whether Trump wins next month’s election and then crushes the case. Election Day is 25 days away. The question I posed to kick off this term’s newsletter — will the Supreme Court decide the election? — is still an open one. But for those rightly concerned with such an occurrence, election law expert Rick Hasen has a new piece explaining why it might not happen. He writes that “there is reason to believe that the court will stay out of the election in any major way unless we have a close election à la Florida in 2000 or in the unlikely event that elected or election officials seek to subvert the outcome of the vote.” The “unless” and “unlikely” parts of that are still worrisome, but that’s where we’re at. 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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