Welcome back, Deadline: Legal Newsletter readers. The Supreme Court just wrapped its October argument session. The week featured a Joe Biden win on pollution rules, a loss for Donald Trump foe Michael Avenatti, a prayer from Trump foe Michael Cohen, and a plea from Justice Sonia Sotomayor in yet another capital case with a possibly innocent man.
Trump retaliation is the topic of Cohen’s pending bid. The ex-president’s ex-fixer wants to sue Trump and other officials for locking him up in 2020 after he refused to give up his right to speak out against the then-president. The justices considered Cohen’s long-shot petition in their private conference Friday, and we could soon learn whether the court will hear the appeal as Trump runs for office again while vowing revenge.
Cohen hopes for a better outcome than Avenatti, whose petition the justices rejected Tuesday in their routine order list. Stormy Daniels’ ex-lawyer sought a review of his convictions for cheating the porn star of money from a deal on her book that detailed the sex she said she had with Trump, which the Republican presidential nominee has denied. Like Cohen, Daniels testified for the state at Trump’s New York fraud trial that found Trump guilty of covering up hush money paid to Daniels ahead of the 2016 election.
As it happens, Daniels was back in the news this week in an exclusive MSNBC report about Trump’s attempt to silence her again ahead of Election Day — though not criminally this time, it seems. Trump is set to be sentenced in his New York case Nov. 26, assuming Judge Juan Merchan declines to overturn the guilty verdicts based on the Supreme Court’s immunity ruling and the matter isn’t otherwise further delayed — which is always possible.
The Biden win came Wednesday, when the court let the administration enforce power plant emission limits, rejecting an emergency challenge from industry groups and GOP-led states while litigation continues. So what explains this Democratic victory, even if it’s only temporary? This might help: Justice Clarence Thomas dissented (without explaining why), Justice Samuel Alito recused himself (also without explaining why, though possibly because of his stock holding), and Justice Brett Kavanaugh issued a statement, joined by Justice Neil Gorsuch, that said he thought the challengers could succeed later in the litigation but that it was premature to side with them now.
The capital case of Robert Roberson, who was convicted in his daughter’s 2002 death based on the since-disputed “shaken baby syndrome,” was a litigation whirlwind Thursday that ended (for now) with his execution being blocked in Texas state court. But that was only after a highly unusual move from a bipartisan group of state lawmakers to subpoena the prisoner to testify at a hearing next week — which, the Texas Supreme Court observed, Roberson can’t do if he’s dead.
The U.S. Supreme Court was no help to Roberson earlier that day, with Justice Sonia Sotomayor penning a statement explaining why the court couldn’t grant him relief. But the justice still suggested the state grant him a reprieve to reconsider his case. “That could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence,” Sotomayor wrote.
Meanwhile, Kavanaugh made a cameo in Georgia state court. A judge cited the Trump appointee’s warning of election chaos in a 2022 case to block a Trump-backed move to have 2024 ballots hand-counted. It was one of multiple MAGA voting measures rejected in the Georgia courts this week, but Republican appeals could end the story differently.
The story of Trump’s criminal cases is also still being written. Fulton County District Attorney Fani Willis is trying to revive some dismissed counts on appeal while the defense presses its appeal to try to kick Willis and her office off the Georgia state election interference case. There’s no pending trial date in that one or any of Trump’s other criminal cases.
In the federal election interference case, U.S. District Judge Tanya Chutkan rejected Trump’s latest quest to keep yet more damaging information about him secret, though the latest materials put on the docket Friday were largely sealed or redacted, anyway.
And let’s not forget about the classified documents case, which is on appeal and saw a tangential development this week. When the case of Ryan Routh, who is accused of attempting to assassinate Trump, was assigned to U.S. District Judge Aileen Cannon, I mused whether Routh would seek Cannon’s recusal. He did so this week, noting the Trump appointee’s Trump-friendly dismissal of the documents case, Trump’s praise of Cannon, and the fact that, if Trump takes office again, he could nominate her to “a higher court were a vacancy to arise.”
The justices return to the bench for the November hearing session starting Nov. 4. That is, the day before Election Day. They aren’t set to hear any blockbuster cases then, but that could change if emergency election disputes emerge. In any event, the court just announced its December hearing calendar, featuring a Dec. 4 argument over the constitutionality of banning gender-affirming care for minors. So, no matter what happens in November, the justices have crucial decisions ahead.
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