Welcome back, Deadline: Legal Newsletter readers. This week, the Supreme Court heard a Republican appeal to block mail-in ballots that arrive after Election Day. Monday's argument suggested that the effort has the support of several GOP-appointed justices. We should learn by early July whether a majority of the court will deliver another victory for the GOP ahead of the midterm elections. Chief Justice John Roberts and Justice Amy Coney Barrett may hold pivotal votes in the case, called Watson v. RNC.
The hearing is a reminder of the simple, yet important, math on a court with six GOP appointees and three Democratic appointees. In politically consequential disputes at the nine-justice court, Republicans can afford to lose a vote and still win 5-4. Put another way, in cases with clear party lines — voting cases are a good example — two GOP appointees must defect for a Democratic win.
That math was also on display on Monday's order list, a routine document that contains the latest action on pending appeals, mostly consisting of the court declining to review cases without comment. Because the court wields great power over its docket — which cases it chooses to consider, which to reject — the list provides a snapshot of the court's priorities.
Those priorities were clear as ever on Monday's list, with Justice Sonia Sotomayor authoring three dissents. One of them came in a qualified immunity case, in which the majority summarily sided with a law enforcement officer over Sotomayor's dissent for the three Democratic appointees. The minority accused the GOP appointees of giving officers "license to inflict gratuitous pain on a nonviolent protestor even where there is no threat to officer safety or any other reason to do so."
The Obama appointee also led the trio in dissent from the court's refusal to consider Rodney Reed's appeal from Texas death row. The denial means the state likely will execute him "without the world ever knowing" whether Reed's or another person's DNA is on the murder weapon, "even though a simple DNA test could reveal that information," Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.
Sotomayor was alone in a third dissent on the list, stemming from the court's denial of a qualified immunity appeal from a citizen journalist, who alleged she was arrested in retaliation for reporting on law enforcement's activities. In her solo dissent, Sotomayor called the court's denial of Priscilla Villarreal's petition a "grave error," writing that the court "leaves standing a clear attack on the First Amendment's role in protecting our democracy."
It takes four justices to grant review. That leaves the Democratic appointees powerless to shape the docket on their own. Certainly, one justice can't do so alone.
We'll be looking at the next order list on Monday to see whether the court acts on Steve Bannon's petition. In that one, the Justice Department is supporting the Donald Trump ally's bid to upend his contempt conviction, with the DOJ pressing the justices to send his case back to the lower court so that it can be dismissed. Friday marks the third time that the justices considered Bannon's petition at one of their private conferences. They have no deadline to act, so all we know is that the court could decide on his petition soon — perhaps as soon as Monday — but there's no guarantee that it will do so.
Another Trump-related petition that's taking an uncertain route is the president's appeal to reverse one of the civil verdicts won against him by writer E. Jean Carroll. This is the case in which Carroll obtained a $5 million verdict against him in 2023 for sexual abuse and defamation. That one is further ahead in the appellate process than Trump's separate ongoing challenge to Carroll's $83.3 million defamation award. In the $5 million case, the court keeps rescheduling the president's petition before it can be considered at one of the justices' private conferences. Such a rescheduling happened again this week. So unlike Bannon's petition that's ripe for decision, we won't hear anything on the Carroll appeal until after the justices officially consider whether to review it at one of their upcoming closed-door meetings.
On top of the latest order list coming on Monday morning, the court will close out its latest two-week hearing session with a series of important arguments. Among them will be a hearing Tuesday in a capital case from Mississippi involving race, jury selection and an infamous prosecutor. On Wednesday, the court will hear arguments in the crucial birthright citizenship case, in which the president is singlehandedly trying to redefine what it means to be an American — the Constitution and more than 100 years of precedent notwithstanding.
Meanwhile, Trump said this week that two of his appointees, Barrett and Neil Gorsuch, "sicken" him, because they joined last month's ruling against his illegal tariffs. We'll check back in next week to see how the president might have reason to feel about his quest to kill birthright citizenship after Wednesday's hearing.
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