Tag Archives: January 6

End of Term

The Supreme Court picked up the pace this week, issuing nine opinions over two days.  At this point, the next opinion day is Wednesday.  As there are at least twelve opinions left, there is a good chance that Thursday and Friday will be added.

This week’s opinions included the last opinion from November which, as expected, went to Chief Justice Roberts.  Justice Kavanaugh had a December opinion which, as noted last week seemed to be the most likely. outcome in terms of which justice would join Justice Gorsuch and Chief Justice Roberts on the final three cases from December.  The other two cases — Purdue Pharma and Jarkesy — will more likely than not be authored by Justice Gorsuch and Chief Justice Roberts.

For January, as predicted last week, Justice Kagan had the opinion in the Confrontation Clause case leaving only the two Chevron deference cases.  It seems highly likely that there will be one opinion authored by Chief Justice Roberts or a lead opinion authored by the Chief Justice and a brief unsigned per curiam opinion in the other case. Continue Reading...

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Trump Litigation News — Immunity and Ballot Access

Following what is happening to Donald Trump in court is a little like a soap opera — a lot of little things happening all of the time that makes you wonder when it is time to write about the latest maneuvering.  This week, however, seems to be shoehorned around two very consequential events.

First, on Tuesday, we got the decision from the U.S. Court of Appeals for the D.C. Circuit on the appeal of the ruling denying Trump’s motion to dismiss the January 6 case.  The opinion was a per curiam opinion.  For those who are not lawyers, most opinions identify the author.  A per curiam opinion is on behalf of all of the judges who heard the case and does not identify a specific judge as the author.  There are a variety of reasons why courts opt to issue such opinions.  The reasons that most likely apples here is to emphasize that this opinion is the unanimous opinion of all of the judges.

The opinion is rather long (fifty-seven pages).  After initially determining that the trial court’s decision on Trump’s motion to dismiss charges could be appealed now (most decisions can’t be challenged until after the case goes to trial), the judges systematically demolish all of Trump’s claims on why a former president can’t be charged for criminal conduct committed while in office.  They also reject Trump’s attempt to change his position from 2021 and argue that the decision of 43 Senators to not remove Trump from office after his term ended barred criminal charges on double jeopardy grounds.  The most important part of the ruling was not on the merits.  Rather it was a procedural decision. Continue Reading...

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Supreme Court Update

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. Continue Reading...

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