Welcome back, Deadline: Legal Newsletter readers. Regular readers weren’t surprised when the Supreme Court cleared the way for the dismissal of Steve Bannon’s contempt conviction. We’ve been following this one for a while and, on Monday, the court gave Donald Trump’s Justice Department what it asked for: a chance to ask the trial court to permanently dismiss Bannon’s conviction for blowing off the House Jan. 6 committee. The DOJ didn’t detail why it wants that relief for the Trump ally, claiming only that burying the case “is in the interests of justice.”
The court was mostly quiet besides that, as the justices are in between argument sessions ahead of the term’s final two-week hearing stint later this month. After that, we enter the home stretch of anticipating some of the term’s biggest rulings, which will come down later in the spring and early summer.
But the court did act on a quirky shadow docket dispute in another election-related appeal ahead of the midterms. Samuel Ronan, who previously sought to lead the Democratic National Committee, was certified to run as a Republican in an Ohio congressional primary this year. Yet a Republican voter asked to kick him off the ballot, Republican officials agreed to do so and Republican-appointed judges on lower courts declined to let him run. On Thursday, the Supreme Court denied Ronan’s emergency appeal, though none of the justices dissented, so it wasn’t a complete party-line wash.
Meanwhile, Justice Sonia Sotomayor issued a shadow docket dissent, of sorts, in public remarks this week. Speaking at the University of Kansas School of Law on Tuesday, the Obama appointee called out Justice Brett Kavanaugh’s infamous concurrence last year that cast immigration stops as not a big deal for innocents to endure. In his September opinion in Noem v. Perdomo, the Trump-appointed justice wrote that “the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.”
Sotomayor analyzed the “Kavanaugh stops” opinion in realist terms. According to Bloomberg Law’s coverage of her Kansas appearance, she didn’t name her fellow justice but said the opinion came “from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.” The justice reportedly said “those hours that they took you away, nobody’s paying that person,” adding that it “makes a difference between a meal for him and his kids that night and maybe just cold supper.”
The justice took more general aim at her GOP-appointed colleagues on Thursday, in remarks at the University of Alabama School of Law. She said there’s “disagreement among us right now about the efficacy of the emergency docket and of what people have dubbed the shadow docket.” She said there has been a “shift in paradigm” at the court in granting emergency relief amid the Trump administration’s “unprecedented” level of appeals. “We’ve done it to ourselves,” she said of the deluge, adding, to laughter in the room: “I’ve written that, so I’m not saying something out of school.”
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