Welcome back, Deadline: Legal Newsletter readers. It was a busy Supreme Court week, considering that the main action was a mostly unanimous opinion about where certain environmental litigation can proceed. Justice Clarence Thomas’ opinion on Friday, backing Chevron’s bid for the more favorable federal forum over state court, was fully joined by every participating justice except Ketanji Brown Jackson; she wrote a concurring opinion to explain why she agreed on the bottom line but for different reasons. The case was decided by an eight-member court, because Justice Samuel Alito recused himself at the last minute, due to his oil-and-gas investment interests.
While the ruling in Chevron v. Plaquemines Parish is important for climate litigation, it was the off-court actions of Thomas and Jackson, as well as Justice Sonia Sotomayor, that dominated the week, as retirement speculation mounts for Thomas and Alito ahead of the midterm elections.
For context, recall Sotomayor’s comments last week, when she made waves for her realist observation about Justice Brett Kavanaugh’s shadow docket opinion backing immigration stops. At a law school appearance in Kansas, the Obama appointee said the Trump appointee’s opinion came from a man “whose parents were professionals” and who “probably doesn’t really know any person who works by the hour.” Sotomayor issued a public apology this week, saying she “made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.”
Jackson continued the broader shadow docket critique in a Yale Law School lecture dedicated to the topic. Her talk was titled “Equity and Exigency: A First-Principles Solution for the Supreme Court’s Emergency Docket.” Elaborating on criticism she has made in her dissenting opinions, the Biden appointee blasted the majority’s serial interventions for the administration that, she said, have disrespected lower courts and damaged the high court’s relationship with them and with the American people. Mindful that she’s a lonely voice on the court these days, the justice said she’s “at core a very optimistic person” who hopes that her view “will come to fruition at some point.”
Thomas gave gripes of his own in a speech at the University of Texas at Austin. In a talk pegged to the upcoming 250th anniversary of the Declaration of Independence, the court’s oldest member bemoaned what he saw as a modern societal betrayal of founding-era ideals. He also gave a shoutout to several attendees — including Harlan Crow, whose undisclosed gifts to the justice raised an ethical scandal for Thomas and the court. The Wall Street Journal’s opinion page headlined an excerpted portion of the remarks: “Justice Thomas: Progressives vs. the Declaration.”
The justice’s views are well known. But what everyone really wants to know is whether the 77-year-old Thomas, the 76-year-old Alito or both will step down to give President Donald Trump a chance to appoint their replacements ahead of the November midterms, where congressional control is at stake. Trump said he’s “prepared” to do so. If he names both of their successors, then he will have appointed a majority of the nine-justice court. When asked this week about the possibility of Alito retiring, Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, said he would suggest Sen. Ted Cruz, R-Texas, or Sen. Mike Lee, R-Utah, as a replacement — both of whom, it so happens, are known to rankle even their fellow Republicans.
Meanwhile, former Thomas clerk John Eastman, one of the lawyers who tried to help Trump overturn his 2020 election loss, was disbarred in California this week. The state bar’s chief trial counsel said the disbarment “affirms the fundamental principle that attorneys must act with honesty and uphold the rule of law, regardless of the client they represent or the context in which that representation occurs.” The counsel noted that Eastman “advanced false claims about the 2020 presidential election to mislead courts, public officials, and the American public.”
Eastman has vowed to appeal to the high court to save his law license. Notably, Thomas previously recused from Eastman-related litigation. Whether the justice will do so again remains to be seen — that is, if he’s still on the court by the time he would need to decide whether to weigh in on his former clerk’s promised petition.
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