By Ella Lee and Zach Schonfeld | Wednesday, November 19 |
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By Zach Schonfeld and Ella Lee Wednesday, November 19 |
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© Eric Gay, Associated Press |
Redistricting blitz ignites in courts |
Legal fights over the blitz of mid-decade congressional redistricting are heating up as the clock ticks closer to key deadlines for the midterm elections. Texas' map that adds five Republican pickup opportunities is now blocked unless the Supreme Court intervenes. Judges will convene Wednesday to consider blocking North Carolina's new map that could give Republicans another seat. And a similar hearing is two weeks away in California, where voters passed a new map that adds as many as five pickup opportunities for Democrats. In each state, lawmakers contend they redrew the maps for partisan advantage. Federal courts have no authority to strike down partisan gerrymanders. But the challengers insist the changes were really about race. In Texas, a 2-1 ruling Tuesday that the state's new map is a likely racial gerrymander moves the ball to the Supreme Court. Texas Gov. Greg Abbott (R) vowed to "swiftly appeal" to the justices. "The Legislature redrew our congressional maps to better reflect Texans' conservative voting preferences – and for no other reason. Any claim that these maps are discriminatory is absurd and unsupported by the testimony offered during ten days of hearing," Abbott said in a statement. Texas's candidate filing deadline is fast approaching on Dec. 8, less than three weeks away. Texas Attorney General Ken Paxton (R) confirmed the state will bring an emergency appeal asking the high court to immediately revive the map. The justices' consideration will come as they work behind the scenes on drafting their decision on Louisiana's congressional map, a long-running battle that predates the recent redistricting blitz. Louisiana's case raises far-reaching questions about the future of race in redistricting that could impact the new challenges. As Texas heads to the Supreme Court, the battle over North Carolina's newly minted congressional map is headed into the spotlight. A hearing will unfold in Winston-Salem, N.C., Wednesday afternoon. Passed last month, the map redraws the state's First Congressional District, currently represented by North Carolina state Democratic Rep. Don Davis, to be more conservative. The district has elected a Black representative for more than 30 years, and the case focuses on how the new design decreases the Black voting-age population by 8 percentage points. The map is challenged by two groups. The first comprises Black and Latino voters represented by Elias Law Group, a powerful Democratic election law firm led by Marc Elias. They argue North Carolina unconstitutionally used race and failed to account for population deviations since the five-year-old census data. "The racial effects of the 2025 redraw cannot be explained by partisanship," they wrote in court filings. The second group comprises voters, the North Carolina State Conference of the NAACP and watchdog Common Cause. They argue the map violates the First Amendment because it frustrated the groups' right to petition and was passed as retaliation for the groups' existing challenge to North Carolina's previous map. "Redistricting does not occur in a First Amendment-free zone," they wrote in court filings. The hearing is before a three-judge panel all appointed by Republican presidents: U.S. Circuit Judge Allison Rushing and U.S. District Judge Richard Myers, both Trump appointees, and U.S District Judge Thomas Schroeder, an appointee of the second former President Bush. As Democratic lawyers attempt to strike down North Carolina's map for unconstitutionally diluting Black voting power, Republican lawyers will attempt to strike down California's map for unconstitutionally boosting Hispanic voting power. The Trump administration and the state GOP will attempt to topple the map championed by Gov. Gavin Newsom (D) that could provide Democrats with as many as five additional House seats. "They're trying to create seats based on race," Attorney General Pam Bondi told Fox News's Sean Hannity last week. "And they can't do it, and we're going to hold them accountable just like any other state." The panel overseeing the California case comprises U.S. Circuit Judge Kenneth Lee, a Trump appointee, U.S. District Judge Wesley Hsu, an appointee of former President Biden, and U.S. District Judge Josephine Staton, an appointee of former President Obama. And just remember: We're only about four years away from the next census, when the whole process will start anew. |
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Reagan judges vs. Trump; Jackson's streak; 'Fake electors' rebound |
Reagan judges emerge as Trump's fiercest judicial critics |
An unexpected class of jurists have emerged as the fiercest critics of President Trump's assault on the legal system: appointees of former President Reagan. Often the seniormost judges on their courts, Reagan judges have wielded their experience as a weapon in impassioned opinions striking down the president's policies and in once rare public remarks. One such jurist, U.S. District Judge Mark Wolf, resigned from his senior position on the federal bench in Massachusetts earlier this month to dedicate his time to fighting back against the president. He wrote in The Atlantic that his public service began in 1974, a "time of dishonor" for the Justice Department at the end of President Nixon's term. But what Nixon once did "episodically and covertly," Trump now does "routinely and overtly," the former judge said. "My reason is simple: I no longer can bear to be restrained by what judges can say publicly or do outside the courtroom," Wolf wrote, calling Trump's conduct "contrary to everything that I have stood for" in his time as a prosecutor and judge. "The White House's assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out," he added. "Silence, for me, is now intolerable." He's not the only fed-up Reagan-appointed judge. U.S. District Judge William Young made headlines in September with his blistering rebuke of Trump's crackdown on pro-Palestinian campus activists, the effect of which is to "unconstitutionally chill freedom of speech." The judge quoted a portion of Reagan's Inauguration speech in the ruling that says, "freedom is a fragile thing and it's never more than one generation away from extinction." He contended that Trump understands the importance of the message but draws from it a "darker, more cynical" meaning. "I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected," Young wrote. "Is he correct?" Similarly, U.S. District Judge John Coughenour wrote in a decision striking down Trump's birthright citizenship executive order that, to Trump, "the rule of law is but an impediment to his policy goals." Coughenour took a rare step in July to speak out publicly alongside another judge overseeing Trump cases against threats they've faced as a result. "It's just been stunning to me how much damage has been done to the reputation of our judiciary because some political actors think that they can gain some advantage by attacking the independence of the judiciary and threatening the rule of law," the judge said. Their outspokenness has drawn some criticism. Mike Davis, a Trump ally and head of the conservative Article III Project, wrote in a Fox News op-ed that Wolf, the judge who stepped down to speak out against Trump, is a "wolf in wolf's clothing" — a callback to the late Justice Antonin Scalia's famous dissent in a case about the separation of powers. Davis claimed that Wolf is "no judicial conservative," pointing to the Senate blue slips practice that lets home-state senators weigh in on a president's nominations to district courts and U.S. attorneys' offices. Both senators from Massachusetts at the time Wolf was appointed to the bench were Democrats, he said. Rob Luther, a law professor at George Mason University, wrote in posts to X about Wolf that any federal judge who gives up "actual power" to join Trump's crowd of critics "severely misunderstands power." He joked that Wolf's status as a retired Reagan-appointee with the backing of those Democratic senators is "likely at peak market value." "I hope more federal judges follow now-retired Judge Mark Wolf's lead and take their anti-Trump activism off the bench so that (Trump) can replace them," he said in another post. "Step right up, please!" |
A mystery in the Supreme Court's passive voice |
Did Justice Ketanji Brown Jackson continue her independent streak in the Supreme Court's recent handling of the food stamp lapse during the government shutdown? When the full court extended a pause on an order requiring the Trump administration to pay full Supplemental Nutrition Assistance Program (SNAP) benefits during the government shutdown, Jackson publicly dissented. That in itself made the junior liberal justice's disagreement clear. But a language change elsewhere in the court's order suggests the division may have gone deeper. We'll add an underline to the important part: "The application for stay presented to Justice Jackson is referred to the Court." It's subtle, but that passive voice is highly unusual. It may give away the inner workings of the court's deliberations. To explain why, let's walk through the emergency appeal process: When someone files one at the Supreme Court (formally called an "application"), by default, it goes to the justice assigned to the area of the country where the case originated. The divisions align with the boundaries of the federal circuit courts, so they are known as the "circuit justice." Chief Justice John Roberts handles three circuits, Justices Samuel Alito and Brett Kavanaugh have two and the others each have one. Read the full assignments here. The circuit justice can act on an emergency appeal alone, and they often do for ministerial and low-profile ones. If they deny it, the applicant can then try another justice, and another one, until they fail with all nine. (In practice, the full court will vote to cut off anyone who tries to start going down the line.) Or, the circuit justice can refer the appeal to the full court. That's the general practice for any filed by the current presidential administration. When the Trump administration filed its SNAP emergency appeal, the case came from Rhode Island. Jackson was the circuit justice. At first, Jackson acted alone. She paused the order for a few days so a mid-level appeals panel could weigh in. Just before Jackson's pause was set to expire, a funding deal in Congress appeared in sight. This time, the full court took a vote. It extended the SNAP pause a few more days — and over Jackson's dissent. That's the order that included passive voice indicating the application "is referred to the Court." We checked, and in every other application brought by the second Trump administration, the order has read "by her referred to the court" (or "by him" when the circuit justice is male). The dynamic did appear in one other recent high-profile case, though it wasn't brought by the administration. When the American Civil Liberties Union sought to block a round of imminent deportations under Trump's use of the Alien Enemies Act this spring, the case arose from Texas and went to Alito. The full court voted to temporarily block the deportations over Alito's dissent. "There is before the Court an application," the order began. Jackson's shift suggests the possibility that she wanted to act alone and did not agree to send it to the full court for a vote, only for her colleagues to overrule her. Was it a meaningless edit, or does it reveal the internal deliberations? Neither the majority nor Jackson explained their reasoning. |
'Fake elector' cases get new life |
A few weeks ago, the 2020 election subversion cases were on their last legs. We wrote in October that the state cases against Trump's allies and the so-called "fake electors" had faced sharp blows, leaving prosecutors with big decisions about how — and whether — to proceed. Well, now, we've got some answers. By Friday, Georgia's Prosecuting Attorneys' Council (PAC) had to pick a new prosecutor to oversee the state's case against Trump, his allies and the alternate electors or see it potentially dismissed, thanks to the disqualification of Fulton County District Attorney Fani Willis (D). Pete Skandalakis, PAC's executive director, announced that he himself would take on the prosecution after the search was fruitless. "Several prosecutors were contacted and, while all were respectful and professional, each declined the appointment," he said in a statement. So, the prosecution's future is in Skandalakis's hands, from picking up where Willis left off to dismissing the charges altogether. It's not the first time that's been the case. After Willis was disqualified from charging Georgia Lt. Gov. Burt Jones (R) for headlining a fundraiser for his political rival, Skandalakis similarly appointed himself. He ultimately declined to bring charges. Fulton County Superior Court Judge Scott McAfee set a hearing for Dec. 1 to discuss next steps in the case, including whether Skandalakis intends to pursue a superseding indictment on the state's behalf. A day prior, Nevada's top court revived the state's criminal case against its six "fake electors" after a venue fight put the prosecution in purgatory for more than a year. The original case was filed by Nevada Attorney General Aaron Ford (D) in Clark County, a Democratic-leaning division that includes Las Vegas. However, a state judge dismissed it last year after finding that the charges should have been brought in Carson City, where the sham Electoral College votes were cast. The Nevada Supreme Court reversed that decision and sided with Ford, ruling that Clark County is the proper venue because the fake electors' alleged offenses were complete when the federal court there received the certificates, not when they were mailed. A status conference is set for Dec. 10 before the state judge to discuss the top court's order. And soon, more pivotal decisions will be made. Arizona Attorney General Kris Mayes (D) faces a Friday deadline to appeal to the state's top court a ruling ordering her office to return its case against the state's pro-Trump electors to a grand jury or see it dismissed, after a mid-level appeals court declined to weigh in. Local outlets took comments Mayes made earlier this month, which referred to the case in past tense, to suggest she's leaning toward letting the prosecution fizzle out. "I certainly don't want to give it up," the Arizona attorney general told 12 News when reminded how she once fiercely defended the case. "It is certainly not something that I want to do." However, Mayes told a local radio station she would "caution folks against reading into my comments." Asked about her remarks and planned next steps, her office declined to comment. |
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- Comey wins grand jury bid: A federal magistrate judge pointed to possible government misconduct as the reason he ordered the Justice Department to turn over grand jury materials to former FBI Director James Comey as he fights criminal charges. The district judge overseeing the case paused his directive until prosecutors have the chance to object, and those issues are weighed.
- Meta antitrust: A federal judge ruled that Meta does not have an illegal monopoly over personal social networking, finding the tech giant competes in a wider social media market that includes the likes of TikTok and YouTube.
- Trump appeals over Portland deployment: The Trump administration began an emergency appeal that seeks to halt an order permanently barring the president's federalization and deployment of the National Guard to Portland." Meanwhile, a ruling could come anytime from the Supreme Court over Trump's Illinois deployment after the final briefs were filed Monday.
- Purdue Pharma bankruptcy deal cleared: A federal bankruptcy judge said he would approve OxyContin-maker Purdue Pharma's bankruptcy plan it refashioned after it lost at the Supreme Court last year. The deal settles thousands of opioid lawsuits against the drugmaker and includes up to $7 billion in contributions from the wealthy Sackler family, who will relinquish control of the company but will not be completely immunized from lawsuits.
- California climate laws blocked: An appeals court blocked California state laws that would soon require companies to disclose information about their emissions and climate risks. The Chamber of Commerce and industry groups had already gone to the Supreme Court and quickly withdrew their appeal with the justices.
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- Real hot girl suit: A trial began Monday in Megan Thee Stallion's defamation suit against an online commentator she claims harassed her alongside fellow rapper Tory Lanez, who was convicted on gun charges after shooting her, reported independent legal journalist Meghann Cuniff – whose fans have dubbed her "Meghann Thee Reporter."
- Divas up: Former Rep. George Santos (R-N.Y.) and Anna Sorokin, better known as fraudulent wealthy heiress Anna Delvey, posed at a Veteran's Day event last week at a bar in D.C. Both onetime fabulists were formerly incarcerated but let out of prison early — Sorokin for good behavior, and Santos following a sentence commutation from Trump.
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Cases the Supreme Court is taking up — or passing on — this term. |
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The high court took up one new case at its recent conference, Noem v. Al Otro Lado. We previewed in last week's edition. The justices will decide the legality of a now-rescinded immigration policy called "metering." From 2016 to 2021 (started under Obama, used during Trump 1.0, rescinded by Biden), immigration officials managed an influx of migrants by turning people away without considering their asylum claims. But federal law guarantees that a migrant who "arrives in the United States" may apply for asylum and must be inspected. So, how did the policy work? Immigration officials turned the noncitizens away while they were still on the Mexican side of the U.S.-Mexico border. The Justice Department argues an individual doesn't "arrive" in the United States until actually crossing the border. It appealed to the justices after a legal challenge succeeded in a lower court. Solicitor General D. John Sauer acknowledged the Supreme Court's decision won't have an immediate impact, but he cited a likelihood "metering" could return as an immigration policy in the future. |
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As the Supreme Court term kicked off, we previewed Hutson v. United States, an appeal of a court order requiring Louisiana and New Orleans to construct an 89-bed prison facility to improve inadequate housing for inmates with mental health needs. In nearly two months since, the court kept punting whether it would take the case. On Monday, the suspense ended. Only three justices voted to hear the New Orleans sheriff's appeal, one short of what's required. Those three votes came from the court's conservative wing: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Alito called the court-ordered construction "illegal from the beginning." Additionally, Alito wrote the lower court got "the inquiry backwards" when Louisiana years later sought to dissolve the order under the Prison Litigation Reform Act, a 1995 law that curbs prisoner lawsuits. "This case cried out for our review. By failing to intervene, we leave New Orleans to pay for the Fifth Circuit's serious errors," wrote Alito, joined by Thomas. Gorsuch didn't join the dissent and did not publicly explain his reasoning. |
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The Supreme Court wants the Trump administration's views on whether to take up Nebraska v. Colorado, a battle between the two states over water rights. Nebraska officials accuse Colorado of unlawfully threatening Nebraska's water supply along the South Platte River. The Constitution and federal law give the Supreme Court "original jurisdiction" (meaning the power to decide a case first) over lawsuits between states. These days, the high court maintains a policy that it has discretion to take up those cases. The Trump administration's opinion on what to do is likely to carry serious weight in most justices' consideration. That is, except for two. Thomas and Alito believe the court is required to take up lawsuits between two states (see examples from 2025, 2021, 2020 and 2016). So regardless of how they feel about the water dispute, expect them to dissent again if their colleagues refuse the case. |
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Petitions to take up cases that the justices are keeping a close eye on. The Supreme Court will consider roughly 180 petitions to take up cases at this week's conference, the final one before Thanksgiving. Let's start with several petitions the court weighed last week that are "relisted" again this week. It is a potential signal the court will take up the case, or a justice is drafting a dissent and needs more time to finish it: |
- Eminent domain: In Hoffmann v. WBI Energy Transmission, a group of North Dakota ranch owners are seeking to collect nearly $400,000 in attorneys' fees incurred during their legal fight with a natural gas company. The company used its eminent domain authority to take some of the ranch owners' land for a pipeline. Everyone agrees the owners are entitled to compensation, but a lower court ruled that does not include legal fees.
- Aquatherapy: In Doe v. Dynamic Physical Therapy, an anonymous man is seeking to revive his damages lawsuit against a Louisiana provider that during the pandemic allegedly refused his request for aquatic physical therapy because he is HIV positive. Under Louisiana law, claims against providers during a health emergency must clear a higher legal bar, so lower courts dismissed the man's lawsuit. He says it improperly overrode his claims under federal disability laws.
- Title IX: Crowther v. Board of Regents of the University System of Georgia raises whether school employees can sue under Title IX, which prohibits sex discrimination in federally funded education. MaChelle Joseph, a longtime Georgia Tech women's basketball head coach fired over emotional abuse accusations, and a fired Augusta University professor are seeking to revive their sex-discrimination lawsuits under Title IX. But a lower court ruled they instead must bring claims under Title VII of the Civil Rights Act, which more generally protects against employment discrimination.
- Notable first-time listings: Trump's bid to uphold his birthright citizenship restrictions, Cameroonian journalist Simon Ateba's challenge to the Biden administration revoking his White House hard pass, Alliance Defending Freedom's challenge to a school district's policy that doesn't inform parents' when their child uses different pronouns at school, Alabama's defense of its congressional map and whether private parties can enforce a key Voting Rights Act provision.
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Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- Former FBI Director James Comey's motion to dismiss his charges for selective and vindictive prosecution is set to be argued before a federal judge in Alexandria, Va.
- A federal judge in Washington, D.C., is set to consider relief for a group of migrants deported to the El Salvadoran mega-prison CECOT under Trump's use of the Alien Enemies Act, in addition to next steps in his contempt inquiry. They migrants have since been moved to Venezuela.
- Another D.C. judge is set to hold a preliminary injunction hearing in a challenge brought by four migrants who live in the nation's capital and were arrested by immigration authorities without warrants.
- A federal judge in California is set to hold a summary judgment hearing in a challenge brought by Stanford's student newspaper and two anonymous students who allege the administration is unconstitutionally deporting students for their pro-Palestinian advocacy.
- Federal judges in North Carolina are set to hold a preliminary injunction hearing over North Carolina's new congressional map that could give Republicans an additional seat.
- A federal judge in Chicago is set to hold a hearing about revealing a government informant in the case against Juan Espinoza Martinez, an alleged Latin Kings member accused of putting a bounty on the head of a top immigration enforcement official.
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- A federal judge in Maryland is set to hold an evidentiary hearing in the case of mistakenly deported man Kilmar Abrego Garcia as she weighs whether to dissolve a preliminary injunction that would allow the government to deport him again.
- Anibal Hernandez Santana, a retired lobbyist accused of firing a gun into an ABC affiliate office in Sacramento, Calif., the day after activists protested the network's removal of "Jimmy Kimmel Live!" in the wake of Charlie Kirk's killing, is set to be arraigned on state charges.
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- Former Trump national security adviser John Bolton is set to appear before a federal judge in Greenbelt, Md. for the first hearing since he entered his not guilty plea.
- Arizona Attorney General Kris Mayes (D) faces a deadline to appeal to the state's top court a ruling that ordered her to return her case against the state's so-called "fake electors" to a grand jury or see it dismissed.
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- The Supreme Court will announce orders.
- The U.S. Court of Appeals for the D.C. Circuit is set to hear oral arguments in the Trump administration's appeal of a district judge's finding that the administration may not exclude journalists based on their opinions, stemming from its efforts to block the Associated Press's access over its decision not to abide by the president's change of the Gulf of Mexico's name to the "Gulf of America."
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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