Before departing for the holidays, the Supreme Court had a couple of “gifts” of merits review in a couple of high profile cases with the possibility of a third before New Year’s.

Starting at the top of the list is the dubious case brought by Mrs. Senator Josh Hawley.  (Normally, the fact that a relative of a politician is involved in a case would not be noteworthy but whne you put yourself out as a power couple and you file the case in a location which assures that it will be heard by a judge who donated to the relative’s campaign and the relative played a large role in getting that judge appointed to the bench, this clearly qualifies as a team effort for which both share the blame.)  In this case, plaintiffs are a group of doctors who claim that they have standing to challenge the FDA’s decisions on approving Mifepristone because at some point they may be forced to provide treatment for a patient who took Mifepristone and had complications.  These political doctors sought to both invalidate recent changes to the guidance that the FDA gives on Mifepristone and its original approval.  Having filed the case in a location that assured them that the case would be heard by a judge who would twist the law and the facts to rule in their favor, they succeeded at the trial court on both parts of their case.  The FDA and the drug manufacture appealed this rubber stamp decision to the Fifth Circuit.  Even the Fifth Circuit could not twist the law in a manner that would allow them to affirm the decision as it relates to the original approval of Mifepristone, but they did find flaws in the administrative process which allowed them to affirm the decision with regards to the more recent changes approving a broader use for Mifepristone.  Everybody then sought U.S. Supreme Court review.  Several months ago, the U.S. Supreme Court stayed the Fifth Circuit’s ruling.  This past week, the Supreme Court granted the review sought by the FDA and the drug manufacturer, but denied the review sought by the medical hacks.

While this Supreme Court having any case related to abortion is always a matter of concern, the decision to take the FDA’s appeal and reject the appeal by the medical hacks is the best result possible for the pro-choice community.  And, the main issue in the case is the FDA procedures for approving medications and expanding “on label” uses after initial approval.  As such, the impact of a ruling against the FDA in this case would have a major negative impact on pharmaceutical companies.  As such, it is possible that six of the justices might put the abortion aspects of this case to the side and simply focus on it as an administrative procedure case.   If not, there is always the November elections.

The second case is a January 6th case.  The U.S. Supreme Court had three pending appeals from January 6th defendants regarding the law on obstruction of an official proceeding.  It took one of the three (apparently the one from the defendant who arrived after the initial obstruction had occurred and who did not take part in the initial invasion).  The issue in the case is the meaning of the provision under which the defendants have been charged.  That provision (Section 1512(c)(2) makes it a crime to “otherwise obstruct[s], impair[s], or impede[s] any official proceeding.”  In a case several years back, dealing with a similar clause in a statute governing document destruction in an official investigation, the Supreme Court ruled that “tangible object” had to be interpreted as being similar to the proceeding terms in the list — “record” and “document” — and thus that section did not cover a fishing boat that tossed illegal catch when federal inspectors arrived because, while a tangible object, fish were not like documents and records.  The defendants in these cases seek to argue that “otherwise obstruct” should be interpreted as being things similar to documents and records being requested for a congressional hearing.  The problem with that argument is Section 1512(c)(1) is the provision governing  records and documents and, like the statute from several years ago, 1512(c)(1) already includes the “other object” catch-all.  As such, clearly 1512(c)(2) is clearly meant to cover something other than obstructing access to evidence.  But the question is what is it meant to cover.

The hard thing about this case is that the U.S. Supreme Court has, in recent years, pushed back strongly on reading broad criminal statutes — especially those that can be used against white collar criminals — broadly.  So the Supreme Court will try to find a narrow definition of what is covered.  The fact that the Supreme Court only took the least culpable offender may hint that the justice are trying to find a way to split the baby down the middle in a way that would still permit the use of the statute to cover disorderly conduct that actually interferes with a congressional hearing or floor proceeding.  Aside from its impact on less well-known offenders, two of the charges against President Trump involve this provision. Not that the justices have shown any inclination over the years to protect President Trump, but that does make this case problematic.

Which brings us to the case on which we are still waiting for an answer.  Earlier this month, the trial judge rejected Trump’s argument that the President has immunity from criminal prosecution because breaking federal criminal law is part of the official duties of the President.  (And yes, that phrasing makes clear how absurd Trump’s theory is.)  Normally, in a civil or criminal case, parties do not get to appeal pre-trial rulings until after the trial.  But immunity is an exception to that rule and Trump appealed.  Trump’s filing of the appeal creates a problem.  Under the rules governing cases, if an appeal is pending, the trial court may not proceed to trial until the appeal is resolved.  Now, the normal process of an appeal in a federal case is that the U.S. Court of Appeals (here the D.C. Circuit) gets first crack at the matter, and the Supreme Court does not take a look at the case until after the lower court rules.  If the normal process had played out, it would be almost impossible to keep the current March trial date and the trial might get pushed back until 2025.  But the rules of the U.S. Supreme Court allows parties to ask the U.S. Supreme Court to step in and take the case away from the lower court.  Now this power is rarely exercised, but it does exist and is used when appropriate.  Given the tight time frame, the special prosecutor asked the Supreme Court to step in.    The special prosecutor also asked for the Supreme Court to shorten Trump’s response time.

At the present time, the Supreme Court has not ruled on whether they will take the case.  But, in a positive sign, they did grant the request to shorten the response time.  (The response is due on Wednesday as opposed to the normal time limit which would have allowed Trump to sit on his hands until early January.)  At the very least, the Supreme Court’s order reflects an understanding that there is a narrow time frame and that the normal rules would prejudice the ability to resolve this case before the election.  While the Supreme Court is not in session, the justices are always accessible, and I would not be surprised if the Supreme Court issues an order either accepting or denying review before the end of the month.  If the Supreme Court accepts review, I would also not be surprised if they dramatically shortened the briefing schedule to permit argument before the end of January. with a quick ruling.  While a March trial date is starting to look unlikely, an April trial date is still viable which would permit a verdict before the Republican convention (so that the Republicans can pick a different candidate).

In short, the past two weeks have dramatically increased the stakes for the second half of this year’s Supreme Court term.  Abortion and democracy are now on the docket and how the justices rule could impact the November elections.