Welcome back, Deadline: Legal Newsletter readers. The Supreme Court didn't hold hearings this week — the justices will be back on the bench next month for arguments on tariffs and other issues. But the justices still made news, sometimes without trying to, such as when James Comey cited GOP appointees' writings in a motion to dismiss his indictment. The big question as we head into the weekend is whether the court will approve the Trump administration's bid to deploy the National Guard in Chicago.
The justices could rule at any time on the shadow docket, in one of the most consequential cases so far in President Donald Trump's second term. The administration argues that the president has unreviewable discretion to deploy troops, while lawyers for Illinois and Chicago want the justices to "protect the basic structure of American federalism from unprecedented intrusion." How the court handles Chicago has nationwide implications as litigation unfolds over deployments in Oregon and California. For the latest in the National Guard litigation, visit MSNBC.com and the Deadline: Legal Blog, and download the MSNBC app.
On the shadow docket this week, Justice Sonia Sotomayor issued her latest pointed dissent against the Republican-appointed majority's refusal to address constitutional problems in capital punishment. Joined by fellow Democratic appointees Elena Kagan and Ketanji Brown Jackson, Sotomayor blasted the majority for refusing to extend the "barest form of mercy" to an Alabama inmate who wanted to be executed by firing squad instead of a suffocating nitrogen gas execution. "The Constitution would grant him that grace. My colleagues do not," she wrote of the justices who offered no explanation for their refusal to step in.
Meanwhile, Republican appointees made cameos in the Comey litigation, specifically in his challenge to Trump-installed lawyer Lindsey Halligan's appointment to lead the U.S. attorney's office that charged him in Virginia. In addition to citing Justice Clarence Thomas' prior opinions — including in the Trump immunity case, in which he questioned special counsel Jack Smith's appointment — the former FBI director pointed to a legal memo Justice Samuel Alito authored when he was a DOJ lawyer in 1986. According to Alito's logic in that memo, Halligan's purported installation by the administration was illegal. The Trump DOJ's response to Comey's motion is due ahead of a hearing on the subject set for Nov. 13.
Thomas also featured in a challenge to same-sex marriage, with Kim Davis citing the justice several times in a brief urging the justices to take up her appeal. The former Kentucky county clerk who famously declined to issue a marriage license to a same-sex couple in 2015 wants the high court to reverse its decision in Obergefell v. Hodges, the landmark ruling that recognized same-sex marriage rights. The justices are unlikely to do so, but we won't know for sure until after they consider Davis' petition at their private conference on Nov. 7.
On a topic the court is interested in, the justices added another gun case to the docket for this term, in a dispute that will test the justices' approach to the Second Amendment. The issue in this latest appeal is the validity of a federal law that bans gun possession for people who are addicted to or illegally use controlled substances. The Trump administration wants the court to uphold the law in the case of Ali Danial Hemani, whom the government called a habitual marijuana user.
And, by the way, if you were planning on visiting the Supreme Court, it's closed to the public "until further notice" because of the government shutdown.
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