Welcome back, Deadline: Legal newsletter readers. Supreme Court justices were off the bench this week because they’re in between their October and November hearing sessions. But they still made plenty of news, in both their written work and public comments.

They started by adding two potent cases to a docket that is growing this term in both size and importance. Following last week’s agreement to review a discovery dispute over Elon Musk’s purported government efficiency effort, on Monday the court added two more appeals: on race in middle school admissions and congressional authority to ban home distilling. The court will keep adding cases throughout the year, with all the rulings in argued cases typically coming by July.

Justices Sonia Sotomayor and Neil Gorsuch were together again, speaking out for the second week in a row about a case the court refused to hear. Last week, Gorsuch joined Sotomayor to lament what they saw as unjust prosecution. This week, the Trump appointee joined the Obama appointee to critique what they saw as constitutional problems with car seizures in Chicago. It’s not new for this duo to team up in a certain type of case that lends itself to bipartisan agreement, but they have been ramping up that agreement so far this term.

Sotomayor’s statement appeared on the order list, which, as regular readers know, is an important document that announces the latest actions on pending petitions. That’s where we learned about the two new cases that the court took up and the (much longer) list of cases the court rejected. It takes four justices on the nine-member bench to grant review, and the court denies most petitions.

But Sotomayor’s statement reminds us that the justices occasionally offer their thoughts even when, as here, they agree with the denial but still find it important to highlight broader issues. These writings help us understand the justices’ priorities and what new cases the court might take up in the future.

Another sort of signal came from Justice Samuel Alito, who didn’t explain himself but noted that he wanted to review one of the petitions the court denied on the list. The failed petition came from Missouri officials who wanted the court to revive a rule that registered sex offenders must put signs on their doors for Halloween that read, “No candy or treats at this residence.” An appeals court said the rule wrongly compelled speech under the First Amendment. Although Alito merely noted, without explanation, his difference of opinion, the vote fits with his overall approach, because he generally backs law enforcement and has split from his colleagues in other First Amendment disputes.

Alito had company later in the week when the court rejected the Trump administration’s request to immediately enforce its preferred policy on gender-affirming care in prison. The justices did not explain the rare (albeit temporary) win for transgender people at a court that has ruled against them in a series of other cases. But whatever the justices were thinking, we know it wasn’t unanimous, because Alito and Justice Clarence Thomas both indicated (also without explanation) that they wanted to grant the government’s request.

Justice Elena Kagan made news outside her written work, with an appearance at a law school in Washington, D.C., the sort of speaking engagement that the justices will do from time to time. Kagan, who was dean of Harvard Law School before she became a justice, gave her GOP-appointed colleagues a failing grade when it comes to democracy. Reprising impassioned criticisms of rulings on voting and campaign finance that she has made in dissenting opinions, the Obama appointee said the court “has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should.”

Kagan apparently agreed with her colleagues this week in an election case, when the Supreme Court granted a Republican-backed request from New Hampshire to block the use of student IDs for voting in the midterms. In a brief unsigned order, the high court chided a lower court judge for, as the justices saw it, improperly interfering with state rules right before an election. Justice Ketanji Brown Jackson was the only one to publish a dissent, in which she contended the judge was justified in trying to protect voting rights.

The justices are still off the bench for another week, as they are set to return to the courtroom in November to hear the next batch of regularly scheduled arguments. But as Election Day approaches on Nov. 3, they will continue to field unscheduled emergency applications on voting and whatever else comes their way.

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My answer to last week’s “Ask Jordan” question about the (lack of) congressional power over pardons generated follow-up questions. On top of this week’s question about presidential immunity, I’m answering two of them briefly below for this special mailbag edition.

As always, submit your questions on this topic and any others through this form.

“So. … If Congress impeaches Defense Secretary Pete Hegseth, Donald Trump cannot pardon him? REALLY?!” — Joyce Carpenter

Hi Joyce,

Trump could pardon Hegseth (or anyone else) for any federal crimes, which would save him from prosecution. But the president couldn’t use the pardon power to save Hegseth (or anyone else) from impeachment proceedings. That’s because the Constitution says presidents can issue pardons for “Offences against the United States” but not for “Cases of Impeachment.”

“I’m disappointed in your answer about pardons. Why didn’t you mention that the pardoned person IS considered guilty of whatever the pardon is for. Or do I have that wrong?” — Richard

Hi Richard,

You have that wrong — or, at least, not necessarily right in all cases.

To be sure, the Supreme Court said in an oft-cited 1915 case that a pardon “carries an imputation of guilt and acceptance of a confession of it.” But that was more of a statement made in passing than an announcement of a binding rule going forward.

As a federal appeals court pointed out more recently, “not every acceptance of a pardon constitutes a confession of guilt.” For example, the appeals court noted that presidents can pardon people they think are innocent. They can even grant posthumous pardons, which led the court to observe that “a deceased individual cannot confess his guilt.”

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal newsletter.

The post Ask Jordan: Pardon mailbag on Hegseth and admissions of guilt appeared first on MS NOW.

“If Donald Trump defies court orders because the Supreme Court said he cannot be prosecuted for actions he takes as president, could those people who carry out his illegal requests be prosecuted or fined even though they are acting on his orders?” — Kit Read

Hi Kit,

Maybe.

The Supreme Court’s 2024 ruling in Trump v. United States only dealt directly with criminal immunity for presidents, holding that they have at least presumptive immunity for all official acts, as well as absolute immunity for acts within their “conclusive and preclusive” constitutional authority.

What all that means in practice hasn’t been fully fleshed out. It would take a follow-up case to clarify the ruling’s limits, and it’s unclear if or when such a case will come.

At any rate, the court focused on presidents in that ruling. It did not grant immunity to aides acting on the president’s behalf.

Yet, while arguments have been made against subordinate immunity, it’s technically an open question that the justices haven’t decided one way or the other.

So the answer to your question at the moment is: maybe.

But you might wonder: What could the argument be for immunizing presidential underlings?

One scholarly account argued that the logic of the immunity ruling “renders the President’s subordinates absolutely immune for a potentially broad range of official acts, even if those acts are otherwise unlawful.” That’s because if the president has complete power over executing the law, then, the argument goes, subordinate actions that implement that power are lawful, as opposed to being unlawful but immune from prosecution.

As with clarifying the immunity ruling’s limits as it applies to presidents, whether the Supreme Court will decide the subordinate immunity question depends on the court taking an appeal that raises that issue in the future. And as with presidential immunity itself, there is no clear candidate for an appeal the court would take to answer that question.

Either way, if a president wants to ensure that any of his henchmen won’t be federally prosecuted, he could always pardon them.

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal newsletter.

The post Ask Jordan: Does presidential immunity extend to subordinates who carry out illegal orders? appeared first on MS NOW.

A nearly unanimous Supreme Court has granted New Hampshire’s emergency request to block the use of student IDs for voting in the November midterm elections.

The case raised a recurring theme at the high court about the propriety of judges intervening on the eve of political contests, against the familiar backdrop of GOP-backed voting restrictions purporting to ensure election integrity.

On Thursday, the majority said that the district court judge who ruled against the state failed to justify deviating from the general principle that federal courts shouldn’t alter election rules on the eve of an election. Justice Ketanji Brown Jackson dissented, writing she “would not disturb a clearly justifiable federal-court order issued to ensure that the public receives accurate information about a State’s electoral processes.”

The Biden-appointed justice said she wasn’t as sure as the majority that the judge’s action falls under that general noninterference rule, known as the “Purcell principle.” She said the judge was trying to address alleged misinformation rather than change state law.

“When a federal court determines that material misrepresentations are being made about a State’s election rules, an injunction to prohibit that conduct does not contribute to public confusion, it prevents that very problem,” Jackson wrote in her solo dissent.

While New Hampshire’s federal representatives are Democrats, Republicans run the state government. Gov. Kelly Ayotte signed a bill into law this year that prohibits the use of student IDs for voting.

A New Hampshire-based nonprofit called Coalition for Open Democracy sued the state over the law, which the group said needlessly burdens young voters under the guise of trying to solve the “non-existent problem” of nonresident voter fraud.

In a ruling earlier this month, U.S. District Judge Joseph Laplante refused to block the law, called HB 323. But the George W. Bush appointee said related guidance from New Hampshire Secretary of State David Scanlan, a Republican, went too far. Laplante said Scanlan overstepped in barring election officials from considering student IDs even as evidence under a “safety-valve provision” that lets voters prove who they are if they don’t otherwise have a proper photograph.

“The State has offered no independent justification for that broader prohibition,” wrote Laplante, explaining that such justification is needed even for minimal burdens on voting rights. He blocked enforcement of Scanlan’s directive to the extent it “prohibits or discourages election officials from considering student IDs as evidence of voter identity,” and he ordered the secretary of state to issue revised guidance for the midterms.

Laplante declined to halt his ruling, as did an appellate panel over dissent from a Trump-appointed judge. State officials then turned to the justices in Washington, arguing that Laplante’s order risks late-breaking confusion. The Republican National Committee filed an amicus brief supporting the state.

Opposing the state’s emergency application, Open Democracy said granting the application would be the chaos-inducing move. The group noted that Scanlan had already quickly complied with the order to provide revised guidance, and that his website “has told voters since the October 2 Order that supervisors may consider a student ID along with other evidence.”

That guidance is now the status quo, Open Democracy observed. Therefore, it said, granting the state’s application would “reverse the rules for a second time in a month.”

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