Welcome back, Deadline: Legal newsletter readers. The Supreme Court wrapped up its first two-week hearing session of the term, while adding a DOGE-related case to the docket, handing the GOP another emergency win ahead of the midterms, and giving John Eastman a spark of hope for his law license.
The DOGE grant appeared on Tuesday’s order list announcing the latest action on pending petitions. Among the new cases the justices agreed to decide this term was the Trump administration’s plea for help against a watchdog group that has been fighting for information about the Elon Musk-backed Department of Government Efficiency.
In a previous round of DOGE litigation, the high court’s Republican-appointed majority ordered the lower courts to narrow discovery into the purported efficiency initiative. The administration is hoping to prevail again in its latest fight for secrecy.
The order list also produced a notable pairing in Justices Sonia Sotomayor and Neil Gorsuch. The two have joined forces before to call out what they’ve seen as government abuses, even when their colleagues have stayed silent. That happened again Tuesday, when the Obama appointee issued a statement lamenting the “constitutional absurdity” of Jesus Herrera-Salazar’s double prosecution.
He had served time for being “found in” the U.S. after his removal and was told to stay in Oklahoma while on supervised release. But abiding by that instruction led to him being charged again for the same crime of being “found in” the country he was told to stay in. Joined by the Trump appointee, who has shown a libertarian streak in some cases, Sotomayor said that courts faced with this situation in the future should “avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”
Sotomayor and Gorsuch split in another case that gave the GOP its latest win on political advertising rates ahead of the midterms. Following a Republican win on the subject last month, over the lone dissent of Justice Ketanji Brown Jackson, Sotomayor and Jackson both noted their objections to Wednesday’s ruling in favor of the Federal Communications Commission. A lower court had ordered the agency to rule on Democrats’ challenge to the FCC’s GOP-friendly interpretation of the law on advertising rates.
But the Supreme Court majority put that lower court ruling on hold, effectively blessing what Sen. Jon Ossoff, D-Ga., and his fellow Democratic candidates called the Trump-backed agency’s “blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.”
Meanwhile, John Eastman got some good news in his fight to keep his law license, after California authorities stripped it for misconduct while representing President Donald Trump and his 2020 campaign. Backed by an array of conservative groups, the former clerk to Justice Clarence Thomas said the court should take his case to “remove the threat” that the loss of his license “poses not just to the First Amendment but to the ability of attorneys fiercely to advocate for their clients without fear of politicized disbarment.”
Eastman’s good news came Thursday, when the court asked the state bar to respond to his petition. It only takes one justice to request a response, so we don’t know whether he will attract the required four justices to grant review (or how a majority of the court would rule on his case if it did grant review). Relatedly, we don’t know if Thomas, who previously recused himself from an Eastman-related case without explaining why, is participating in this one. If he’s not, that could hurt the petitioner’s chances. We should find out later this year whether Eastman’s bar fight will join the DOGE discovery dispute and other appeals this term.
The justices are off the bench until they return for their November hearing session. But the court will keep making news in the meantime, with the latest order list due Monday morning, plus whatever unscheduled emergency actions the court takes. Among the pending disputes the court can resolve anytime are the administration’s bid to enforce its ban on gender-affirming medical care for federal prisoners, as well as an urgent application from a high school wrestler and her mother seeking an injunction that would prevent her from wrestling transgender girls this upcoming season.
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