By Ella Lee and Zach Schonfeld | Wednesday, March 25 |
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By Zach Schonfeld and Ella Lee Wednesday, March 25 |
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Roberts tasked with taming Supreme Court |
Uninhibited questioning by Justices Sonia Sotomayor and Ketanji Brown Jackson at Supreme Court arguments this week showcased tensions with their colleagues that were put on display. The most senior and junior members of the high court's liberal flank drew visible frustration from Chief Justice John Roberts and others as they dominated discussions. It wasn't the first time. "Would you complete your answer?" Roberts directed an arguing lawyer Tuesday, cutting off Sotomayor. Supreme Court arguments have never been short on interruptions, and each justice brings their own flair to the bench. But as chief, Roberts is now straining to steer and balance the sessions. This week, he was more assertive. During arguments Monday, where the court weighed whether mail-in ballots received after polls close on Election Day should be counted, Sotomayor jumped in after Justice Clarence Thomas had concluded his questioning. One problem: It wasn't her turn. Under Roberts's new system, it was a chance for Justice Samuel Alito, the next most senior justice, to ask any lingering questions. "Have we had any —" Sotomayor began to ask. "Justice — Justice," Roberts injected, raising his voice. "I'm sorry," Sotomayor said. "— Alito," the chief justice finished. The new system was a product of the COVID-19 pandemic. In 2020, the court heard arguments remotely and streamed them live for the first time in its history. To help the proceedings run smoothly, the justices asked their questions in order of seniority, rather than the normal free-for-all. That practice stuck. While Roberts has returned to allowing a portion of each argument to include scattered questioning, he ends each lawyer's probing with a chance for each justice to ask questions unabated. It's usually the first portion that prompts butting heads. In Tuesday's arguments, over a policy of turning asylum seekers at the U.S.-Mexico border away, the justices couldn't stop stepping on each other's toes. Sotomayor's and Jackson's questions accounted for 46 percent of the words the nine justices combined spoke at the asylum argument, The Gavel's review of the transcript shows. The chaos began soon into government lawyer Vivek Suri's argument. "Sotomayor asks a 3-minute question, cuts off response after 10 words, talks for another 30 seconds, cuts off response after 5 words, and again and again," conservative lawyer Ed Whelan wrote on X as the justice repeatedly interrupted Suri. Roberts at one point gave Suri a visible nod, seeming to signal that he could answer. The DOJ lawyer and Sotomayor continued to spar, spurring the chief to then intervene verbally and tell Suri directly that he should finish his answer. At another moment, as Jackson was peppering the lawyer with questions, Roberts and Justice Amy Coney Barrett chimed in at the same time, interjecting "Counsel —" and "Mr. Suri —." "Can I just finish?" Jackson asked. |
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Menacing pizza deliveries; company stuck in tariff refund limbo |
Feds investigate pizza doxxings of judges |
An influx of menacing pizza deliveries to unsuspecting judges has prompted a federal investigation, The Gavel has learned. The U.S. Marshals Service confirmed that there is an "active investigation" into the delivery of pizzas to judges across the country as veiled threats. The agency declined to make any further comments about the probe. Judges have increasingly reported receiving pizzas they did not order at their homes and the homes of their loved ones — an intimidation tactic meant to show that their addresses are known to potentially bad actors. The probe was first revealed by U.S. Marshals Service Director Gadyaces Serralta in an interview with The Washington Times last week. He said the FBI, CIA and "many other three-letter agencies" are involved with the investigation. "We've been able to expand our investigative leads tremendously, and we're very satisfied with the progress," Serralta told The Washington Times. The deliveries are not of new concern. While judges typically avoid making public remarks, both state and federal judges have said they received pizzas at their homes they did not order. More are coming forward after a new advisory opinion from the Judicial Conference's Committee on Codes of Conduct gave federal judges more wiggle room to speak out about the importance of the judiciary as threats and attacks surge. (We reported on it in an earlier edition of The Gavel.) There have been 241 threats against judges so far this year, according to the Marshals Service. At a virtual event last week, U.S. District Judge Mark Norris, an appointee of President Trump who sits on the bench in Memphis, Tenn., recalled sitting by the firepit outside his home in the dark of night one evening when headlights began coming up his farm road. It was a pizza delivery driver, who said she had an order for Daniel Anderl. Anderl, the 20-year-old son of U.S. District Judge Esther Salas, was killed in 2020 by a disgruntled lawyer who had once appeared before his mother. Judges across the country have reported receiving pizzas in his name, meant to stoke fear. "It's weird, but it's no longer unusual," Norris said. |
Filtration company stuck filtering tariff refunds |
A Nashville-based filtration company has emerged as the singular leader for more than 330,000 importers owed refunds of Trump's tariffs. Unfortunately for the company, it would rather be hidden in the crowd. "Plaintiff respectfully submits that these are legitimate issues that should not be addressed by one company alone," Atmus Filtration wrote in recent court filings. The company appears stuck in the limelight, like it or not. Judge Richard Eaton has declined Atmus' pleas for a switch. The company had recently suggested creating a steering committee of businesses to lead the fight. But Eaton wants none of it. Last week, he turned away the company's ask in a one-sentence order, merely writing that "the motion is denied" without further explanation. It's not only Atmus who is unhappy. The wine importer and four other small businesses who won at the Supreme Court wanted in on the action. So far, they've been locked out. Same goes for the various law firms that have filed piles of tariff refund lawsuits on behalf of clients: Crowell & Moring; Rock Trade Law; Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt; and Neville Peterson. Together, those firms account for roughly half of the estimated 2,500 pending tariff refund lawsuits, court filings show. They were on board with Atmus' desire to open the gates. The judge denied it before the Trump administration took a position, but ahead of the Supreme Court's decision, the government, too, had advocated for a refund-via-steering-committee approach. The only person to date who has expressed public opposition is Eaton. But as the judge, he makes the rules. So, congratulations to the lawyers at Cozen O'Connor. You now get to take the lead. They've gotten help. Last week, lawyers from Sidley Austin formally entered an appearance on the docket. What's next? The Trump administration says it's continuing to work on a four-part automated system to process the $166 billion plus interest in tariff refunds. As of Thursday, here's the latest update from Customs on each component: Claims Portal: 73 percent developed Mass Processing: 45 percent developed Liquidation review: 80 percent developed Refund: 63 percent developed Officials also plan to conduct various testing before a formal rollout. The judge had initially demanded speed. Now, he seems satisfied with the administration's slower pace, which it demanded for practical reasons. The government has a mid-day Tuesday deadline to provide it's next update. Eaton will hold a closed-door hearing shortly after to discuss it. |
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- Street preacher banks Supreme Court win: The Supreme Court revived a Mississippi evangelist's challenge to a city protest ordinance he was previously convicted of violating, making it easier for people to challenge laws they were convicted under to bar future prosecution.
- Swalwell backs down: Rep. Eric Swalwell (D-Calif.) dropped his lawsuit against Federal Housing Finance Agency (FHFA) Director Bill Pulte after Swalwell was accused of mortgage fraud.
- SCOTUS turns Rodney Reed away: The Supreme Court declined to take up Texas death row inmate Rodney Reed's fight for DNA testing nearly three years after allowing his bid to prove his innocence to move forward, a move that paves the way for his execution.
- Comey subpoenaed: Federal prosecutors in Florida have subpoenaed former FBI Director James Comey as part of a wide-ranging probe into a prior investigation into Russian interference in the 2016 election.
- New U.S. attorney for New Jersey: A new top federal prosecutor has been named to lead the U.S. Attorney's office in New Jersey following months of disarray after its former leader, Alina Habba, was found to have been unlawfully serving in the role.
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- Afroman wins trial: An Ohio jury cleared rapper Afroman of a defamation lawsuit filed by officers who raided his house in 2022. Known for his single "Because I Got High," the rapper created music videos insulting the officers, using security footage from the raid as background footage. Afroman said the music videos were his First Amendment right.
- Lion King chant lands in court: Composer Lebo M, who wrote the famous chant at the start of the Lion King ("Nants'ingonyama bagithi baba!"), sued comedian Learnmore Jonasi for defamation, PEOPLE reports. Jonasi said on a podcast that the phrase translates to, "Look, there's a lion. Oh my god." The $27-million lawsuit claims it misrepresents the chant, which the composer says actually translates to "All hail the king, we all bow in the presence of the king."
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Cases the Supreme Court is taking up — or passing on — this term. |
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| In: Qualified immunity from state house chamber removal |
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The Supreme Court took up a Vermont police officer's qualified immunity bid in an excessive force lawsuit — and immediately ruled in the officer's favor. The justices issued their decision without hearing oral arguments. It's known as a "summary reversal." We previewed the petition, Zorn v. Linton, as one to watch late last year. Shela Linton sued Sergeant Jacob Zorn after he used a wristlock to forcibly remove her from the Vermont House chamber during a 2015 sit-in, when Linton refused to leave. Officers are entitled to qualified immunity in such lawsuits unless their conduct violates a "clearly established" constitutional right. The justices said a wristlock against a protestor passively resisting arrest doesn't clear that hurdle. "The majority today gives 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," Justice Sonia Sotomayor dissented. Joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, the trio accused their colleagues of a "one-sided approach" in which they are more willing to issue summary reversals favoring police officers, but rarely the other way around. |
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| Out: Rodney Reed's DNA testing bid |
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Sotomayor was a prolific author this week. She also handed down two other dissents in cases the court turned away. We've highlighted both previously in The Gavel. First is Reed v. Goertz, death-row inmate Rodney Reed's yearslong bid to secure DNA testing he says would prove his innocence in his 1998 murder conviction. In 2023, the Supreme Court ruled that lower judges were wrong to dismiss Reed's ask as untimely; they needed to rule on the merits of his due process claim. Those lower judges eventually rejected his arguments, and Reed boomeranged back to the justices. By now declining to take up his petition, it's likely to pave the way for his execution. Sotomayor, joined by Kagan and Jackson, said the lower court didn't carefully consider all of Reed's arguments. "It is inexplicable why the Bastrop County District Attorney's Office refuses to allow DNA testing of the belt that was used to kill Stites, despite the very substantial possibility that such testing could exculpate Reed and identify the real killer," Sotomayor wrote. Meanwhile, Sotomayor penned a solo dissent in the case of Villarreal v. Alaniz. Texas-based citizen journalist Priscilla Villarreal petitioned the court after being arrested for disseminating the identities of a suicide and deceased motor vehicle accident victim that law enforcement had not made public. Villarreal argued it violated her First and Fourth Amendment rights, but a lower court ruled the officials were entitled to qualified immunity. The Supreme Court turned away her appeal. "Villarreal is a reporter who was arrested for doing something journalists do every day: posing questions to a public official," Sotomayor wrote in dissent. None of her colleagues joined her on that one. |
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| Petitions to take up cases that the justices are keeping a close eye on. |
- More qualified immunity: Don't worry, there's more qualified immunity cases inbound. The latest appeal comes from Los Angeles. The city and its police department seek qualified immunity in a lawsuit filed by the estate of Daniel Hernandez, who was shot six times and killed by an officer in 2020 while armed with a knife. A district judge ruled the officer didn't violate Hernandez's constitutional rights, but an appeals court revived the lawsuit. The city now wants to end it. The case is City of Los Angeles v. Estate of Daniel Hernandez.
- Withheld evidence: Convicted murderer James Skinner seeks a new trial after another defendant's conviction was reversed based on the same witnesses' testimony. Like that defendant, Skinner says his constitutional rights are being violated under Brady v. Maryland, the high court's landmark decision that held law enforcement must turn over material evidence to the defendant. The case is Skinner v. Louisiana.
- Venezuelan child return: The mother of a 7-year-old girl wants to reverse an order that she be returned to her father in Venezuela. The mother took the girl and brought her unlawfully to the U.S. The father has petitioned for her return under a treaty part of the Hague Convention. But under that treaty, a court doesn't need to return a child if they are "well settled" in the new country. The mother says that standard is met here. She previously lost on the Supreme Court's emergency docket, though she got Sotomayor's and Jackson's votes. The case is Castro v. Guevara.
- Death row and intellectual disability: A Texas jury found Victor Saldano guilty of capital murder in 1996, putting him on death row. He now wants the Supreme Court to revive a pathway for him to argue he is intellectually disabled and can't be executed. It comes after the Supreme Court years ago invalidated some of Texas' procedures for intellectual disability claims. Saldano says it gives him a new basis for relief, but the state's top criminal court disagreed. The case is Saldano v. Texas.
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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: |
- The Supreme Court will announce opinions.
- The justices will also hear oral arguments over whether the FAA's exemption for transportation workers "engaged in ... interstate commerce" applies to delivery drivers who don't cross state lines. The case is Flower Foods, Inc. v. Brock.
- A federal judge in New York is set to hold a three-day competency hearing in the sex trafficking case against Michael Jeffries, former CEO of Abercrombie & Fitch.
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- A federal judge in Massachusetts at a hearing will consider extending a block on the Trump administration's efforts to end Ethiopia's Temporary Protected Status designation.
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- A federal judge in Virginia is set to hold a hearing over the Trump administration's motion to dismiss a lawsuit brought by a transgender TSA agent who was prohibited from conducting security pat-downs and using TSA-controlled restrooms that align with her gender identity.
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- The Supreme Court is set to announce orders.
- The justices are also set to hear oral arguments in two cases. The first case, Abouammo v. United States, asks whether prosecutors can charge a former Twitter employee in San Francisco over an FBI search in his Seattle home because the agents who conducted the search were from San Francisco. The second case, Jules v. Andre Balazs Properties, asks whether a "jurisdictional hook" is provided for the duration of an arbitration case if a federal court initially finds jurisdiction.
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- The Supreme Court is set to hear oral arguments over whether the Mississippi Supreme Court unreasonably determined that a criminal defendant waived his right to rebut the race-neutral reasons a prosecutor gave for exercising peremptory strikes against four Black jurors. The case is Pitchford v. Cain.
- A federal judge in California is set to hold a preliminary injunction hearing in a lawsuit challenging cuts to three childcare and family assistance programs in five states.
- The Justice Department faces a deadline to provide an update on its progress regarding tariff refunds, after which a judge is set to hold a closed-door hearing to discuss it.
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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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