Justices Clarence Thomas and Samuel Alito further distanced themselves from their Supreme Court colleagues on Wednesday when they were the only two jurists to note their objections to the court’s refusal to let the Trump administration immediately enforce its preferred policy on gender-affirming care in prison.

The court’s unsigned order contained no explanation from the majority or the dissenting duo. Still, it’s the latest data point showing Thomas and Alito backing the administration even when their fellow GOP appointees — including President Donald Trump’s own three appointees — decline to do so.

Wednesday’s order follows last month’s Supreme Court rejection of Trump’s desired mail-ballot restrictions for the midterm elections. That loss led the president to lash out at the court, including his own appointees, while calling Thomas and Alito “legends.”

Asked during a recently published CBS News interview about a Wall Street Journal study showing that Alito sided with Trump more than any of his colleagues, the justice said he’s “not trying to decide cases to help President Trump.”

Whatever his or Thomas’ intentions, their latest actions spotlight their dynamic of voting for the president’s position when other justices don’t. Their votes come ahead of the rapidly approaching Election Day in less than two weeks, with voters set to determine which party will control Senate confirmation of justices for the near future.

Alito said he’s staying on the court at least through this court term, even if Democrats win back Senate control. Thomas has likewise not signaled that he is stepping down imminently. If he stays on the court through the next term, he will become the longest-serving justice ever. In their late 70s, Thomas and Alito are the two eldest members of the current court, but they aren’t very old by the court’s historical standards.

Yet if Trump has an opportunity to appoint their successors or any other justices before he leaves office in 2029, their latest votes underscore why he will likely model his next selection(s) on them, rather than on the justices he has put on the bench thus far, who have backed him in a series of significant cases but not all of them.

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With Americans deciding the congressional balance of power in November’s midterm elections, Justice Elena Kagan is reminding the nation of how the Supreme Court’s decisions have shaped the ballot.

It’s an antidemocratic shape, according to the Obama-appointed justice’s remarks Tuesday at Catholic University’s law school in Washington.

Kagan 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.”

Her off-bench comments reprised impassioned criticisms she has made in dissenting opinions from the GOP-appointed majority’s rulings on gerrymandering in 2019 and earlier this year on the Voting Rights Act and campaign finance.

In 2019’s Rucho v. Common Cause, the majority said partisan gerrymandering claims present “political questions” that courts can’t answer. Writing the dissent for what was then a four-justice minority, she said the case marked “the first time ever” that the court “refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

Writing for the current three-justice minority this year, Kagan called the six-justice majority’s decision in Louisiana v. Callais the “latest chapter in the majority’s now-completed demolition of the Voting Rights Act.” Leading the same trio on campaign finance, in dissent from a ruling that struck down more limits and overturned another precedent in the process, she said the majority “jettisons a rule needed to protect our democracy’s integrity.”

On Tuesday, she said the American people “look around this political system and think that all this money chasing all these political candidates is a nightmare.” She added, “And they’re right.”

The justices are in between their October and November hearing sessions, but they will continue to field any emergency applications that come to them regarding the midterms or anything else. Currently, there is a pending application from New Hampshire Republicans to prevent the use of student IDs in voting.

The justices have weighed in on an array of election disputes already this year — and they haven’t always backed the GOP. But whatever the outcome in the midterms, Kagan’s comments provide a useful backdrop for understanding the political landscape the court has helped set.

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The Supreme Court on Wednesday denied the Trump administration’s application to enforce its ban on gender-affirming medical care for federal inmates after a judge blocked the policy.

The denial came in an unexplained order. Justices Clarence Thomas and Samuel Alito noted they would have granted the administration’s application, but they also did not explain their reasoning.

Human Rights Campaign President Kelley Robinson said the high court’s action “protects incarcerated trans people from the administration’s attempt to steamroll over constitutional rights for now.” But she added, “the fight to uphold the dignity and respect our community deserves is far from over.”

Urging the justices to lift the judge’s order while it appeals, the administration argued that the public interest favors such a result because the policy “provides appropriate, individualized treatment for gender dysphoria, while disallowing only interventions that are medically unnecessary.”

Lawyers for inmates with the American Civil Liberties Union implored the high court not to back the government’s attempt to “overturn a three decades-long status quo.” They said the government turned to the justices at this preliminary stage of the litigation not because it has a pressing legal claim but rather because it is upset about how the district judge applied settled law to the facts in this case.

Over the past couple of years, the Supreme Court has ruled against transgender people in a series of cases involving sports, the military, passports and gender-affirming care for minors.

When he granted a preliminary injunction for inmates in June, U.S. District Judge Royce Lamberth, a Reagan appointee, said he didn’t want to wade into “the culture war being waged against transgender individuals.” He said he was merely making a legal decision that the government had failed to follow proper procedures when it implemented the new policy.

The Washington judge called the government action “arbitrary and capricious” because it “failed to seriously consider its own experience providing gender-affirming care to inmates for years under its prior policy.” Lamberth issued a subsequent order in August maintaining the injunction, finding that despite officials’ claims, it wouldn’t cause safety issues to continue inmates’ medical care while the litigation proceeds.

Over dissent from a Trump appointee, a federal appellate panel declined to lift Lamberth’s injunction.

In the administration’s application to the justices, Solicitor General John Sauer said the Bureau of Prisons had previously provided both what he called “mental-health treatment (such as psychotherapy and psychiatry services)” and “sex-rejecting interventions (such as sex-trait-modification surgeries, hormone interventions, and social accommodations).”

Sauer said the government concluded it could no longer justify the second category for two reasons: that such interventions weren’t supported by the latest evidence and that they “raised security and prison-administration concerns that outweighed whatever limited benefits they had.”

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It’s in his personal capacity that Donald Trump is asking the Supreme Court to revive his conspiracy lawsuit against Hillary Clinton and others. Still, he says in a court filing, the high court must intervene on his behalf “to protect the Presidency.”

The suit stems from his complaint that, ahead of the 2016 election, Clinton conspired to “weave a false narrative” that his campaign colluded with Russia. Trump argues that he put off bringing the civil case during his first term due to his presidential responsibilities at the time.

In a petition to the Supreme Court this month, his lawyers ask the justices to take his appeal to decide whether that’s a good enough reason to excuse “a President” from missing a filing deadline. They also want the justices to say that courts can’t impose monetary sanctions on “the President” and his lawyers for pressing such a delay claim.

The lower courts have rejected Trump’s arguments. A conservative appeals court upheld a district judge’s ruling that dismissed his suit and imposed nearly $1 million in sanctions against him, Alina Habba and her law firm. The appellate panel noted that many of his and Habba’s legal claims “were indeed frivolous.”

The panel also cited the Supreme Court’s 1997 ruling in Clinton v. Jones that said Bill Clinton couldn’t avoid judicial process in civil litigation while he was in office. “If a president can be haled into court, he cannot be excused from suing to enforce his rights,” the panel reasoned.

In his Supreme Court petition, Trump’s lawyers maintain that there is an important distinction between suing and being sued. They said the Clinton v. Jones precedent “permitted another citizen’s suit against the President while requiring respect for the Presidency; it did not require him to pursue his own claims while in office or lose them.”

They also cited the Supreme Court’s 2024 criminal immunity ruling in Trump’s favor to argue that courts can’t make presidents decide whether to initiate personal litigation while in office. His lawyers are pressing that position as the president pursues an array of personal litigation, including multiple defamation claims.

Hillary Clinton and her civil co-defendants waived their right to respond to Trump’s petition. The court can request a response if one or more justices think it is warranted. If no response is requested, then that all but guarantees the court will decline to review the petition. Whether the court requests a response or not, it takes four justices to grant review.

The Clinton case is not Trump’s only pending bid to persuade the justices to revive personal litigation that he has lost in lower courts, nor is it the only one to invoke the presidency in doing so.

Although the court has already rejected one of his two petitions seeking to reverse his defamation losses against the writer E. Jean Carroll, his second petition is awaiting a response from Carroll before the justices decide whether to grant or likewise deny that one. There, too, his lawyers cite the criminal immunity ruling in seeking to overturn the $83.3 million judgment that Carroll won for statements Trump made during his first term.

The president is also pressing a defamation appeal against CNN over the network’s use of the phrase “big lie” regarding his 2020 election claims. That petition is awaiting a response from CNN, which the court requested after the network waived its right to respond.

We could learn later this year whether the court is interested in reviewing any or all of these cases. The court adds cases to its docket on a rolling basis and is not on a deadline to grant or deny review.

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Samuel Alito was the only Supreme Court justice on Monday to signal that he wanted to help Missouri revive a restriction for sex offenders on Halloween.

The high court rejected review of that case and others on its order list announcing the latest actions in pending appeals. It takes four justices to grant review of a petition, and most denials pass without comment from any of the justices, which makes even an unexplained notation like Alito’s significant. The list only said that he “would grant” the state’s petition, without explaining why.

Although justices sometimes explain their disagreements, they don’t always do so. In any event, that Alito stood alone here is unsurprising. He generally backs law enforcement and has split from his colleagues in other First Amendment disputes.

The state sought Supreme Court review after a lower court struck down a law that required registered offenders to post signs that say: “No candy or treats at this residence.”

In the petition the justices denied Monday, Missouri asked them to take the case to settle what it said is a nationwide divide over whether sex-offender notifications unconstitutionally compel speech under the First Amendment.

The state called the rule crucial to enforcing its prohibition on sex-offender participation in Halloween “because it helps prevent children from approaching sex offenders’ doors and assists police in detecting sex offenders who (like Respondent) unlawfully participate in Halloween.”

The respondent to the petition in this case is Thomas Sanderson. Before he was convicted of a sex offense in 2006, he and his family had consistently put on elaborate Halloween displays. Missouri passed the law in question while he was incarcerated. When he was released in 2008, he was told that he was “grandfathered in” and could continue the annual displays. Apparently it was not an issue until 2022, when he was reported to the police and charged with violating the law.

Upholding a lower court ruling favoring Sanderson’s constitutional challenge, the U.S. Court of Appeals for the 8th Circuit said there was “insufficient evidence to support the State’s assertion that the sign mandate is the least restrictive means of achieving its goals.”

Successfully opposing review at the Supreme Court, Sanderson said there was no real division to resolve among the lower courts. He said that the appeals court in his case “applied settled First Amendment doctrine to strike down an unusual speech compulsion,” and that “no court of appeals or state high court disagrees with that ruling.”

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Last week, it was double jeopardy in Oklahoma. This week, it’s car seizures in Chicago. The through-line is Justice Neil Gorsuch joining Justice Sonia Sotomayor for the second week in a row to call out what they see as government abuses.

It’s not a new phenomenon for the Obama and Trump appointees to team up in a certain type of case that lends itself to bipartisan agreement.

But early in the new court term, they continue to distinguish themselves from their colleagues on the nine-member bench who haven’t shown the same interest in drawing attention to these appeals the court refuses to hear.

“I again encourage courts considering this issue to take care that due deference to state police powers does not eclipse constitutional rights,” Sotomayor wrote Monday in the case of O’Donnell v. Chicago, joined by Gorsuch. The issue, in their view, is that the city’s vehicle forfeiture scheme offends the Fifth Amendment’s prohibition on taking private property for public use without “just compensation.”

Per Sotomayor’s statement, the city takes vehicles when drivers fail to pay as few as two parking tickets — after that, she wrote, the city “can do as it pleases with the vehicle, with no obligation to pay compensation, offset the unpaid ticket debt, or return any surplus to the owner if the vehicle is sold for a profit.”

Her statement appeared on the court’s latest order list, which is a routine scheduled document that announces the latest action on pending petitions. It takes four justices to grant review of a petition, and most of them are denied without comment from any of the justices. That’s what makes it notable when justices speak out in connection with denials.

To be sure, Sotomayor and Gorsuch didn’t dissent from the O’Donnell denial, as justices sometimes do in their separate writings. As was the case with her statement that Gorsuch joined last week on a double jeopardy issue, the duo agreed with their colleagues that the Chicago case didn’t warrant review. Sotomayor noted that the nation’s lower courts are divided on the constitutional issue, and that the split would “benefit from further percolation” before the high court steps in.

So, the subject could return to the justices in a future case, where petitioners can count on at least two justices showing interest. They would need two more to win review.

School admissions, home distilling

The denial in the O’Donnell case (and many others that went unremarked upon by any justices) came as the court granted review in two new appeals that will both be closely watched this term.

In Association for Education Fairness v. Montgomery County Board of Education, the court that struck down race conscious university admissions in 2023 agreed to consider a challenge to the Maryland district’s magnet middle schools.

Challengers argue that the district’s lottery system is too hard to access for Asian American students who are packed in “high-performing, low-poverty elementary schools.” Unsuccessfully opposing review, the district stressed that the ultimate admissions decisions are random, adding that it’s “difficult to even conceptualize” how a lottery-based system could be intentionally racially discriminatory.

The legal question that the court will consider in the Maryland case involves what plaintiffs must prove to show that a facially neutral admissions policy is racially discriminatory. The answer carries nationwide implications.

The other new case taken up by the court on Monday asks whether the government can ban people from making liquor at home.

That’s been the case for more than a century, but a federal appeals court struck down the restriction, which led the Justice Department to ask the high court to step in. Notably, the opposing parties — people who want to distill at home and the Hobby Distillers Association — agreed that the justices should review the issue so that the court can provide a nationwide resolution on the matter, which has divided lower courts.

The legal question in that case, DOJ v. McNutt, is whether the federal prohibition on producing distilled spirits in certain locations, including homes, exceeds congressional power.

The court will hear arguments in both appeals later in the term, with rulings expected by July.

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Welcome back, Deadline: Legal newsletter readers. The Supreme Court wrapped up its first two-week hearing session of the term, while adding a DOGE-related case to the docket, handing the GOP another emergency win ahead of the midterms, and giving John Eastman a spark of hope for his law license.

The DOGE grant appeared on Tuesday’s order list announcing the latest action on pending petitions. Among the new cases the justices agreed to decide this term was the Trump administration’s plea for help against a watchdog group that has been fighting for information about the Elon Musk-backed Department of Government Efficiency.

In a previous round of DOGE litigation, the high court’s Republican-appointed majority ordered the lower courts to narrow discovery into the purported efficiency initiative. The administration is hoping to prevail again in its latest fight for secrecy.

The order list also produced a notable pairing in Justices Sonia Sotomayor and Neil Gorsuch. The two have joined forces before to call out what they’ve seen as government abuses, even when their colleagues have stayed silent. That happened again Tuesday, when the Obama appointee issued a statement lamenting the “constitutional absurdity” of Jesus Herrera-Salazar’s double prosecution.

He had served time for being “found in” the U.S. after his removal and was told to stay in Oklahoma while on supervised release. But abiding by that instruction led to him being charged again for the same crime of being “found in” the country he was told to stay in. Joined by the Trump appointee, who has shown a libertarian streak in some cases, Sotomayor said that courts faced with this situation in the future should “avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”

Sotomayor and Gorsuch split in another case that gave the GOP its latest win on political advertising rates ahead of the midterms. Following a Republican win on the subject last month, over the lone dissent of Justice Ketanji Brown Jackson, Sotomayor and Jackson both noted their objections to Wednesday’s ruling in favor of the Federal Communications Commission. A lower court had ordered the agency to rule on Democrats’ challenge to the FCC’s GOP-friendly interpretation of the law on advertising rates.

But the Supreme Court majority put that lower court ruling on hold, effectively blessing what Sen. Jon Ossoff, D-Ga., and his fellow Democratic candidates called the Trump-backed agency’s “blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.”

Meanwhile, John Eastman got some good news in his fight to keep his law license, after California authorities stripped it for misconduct while representing President Donald Trump and his 2020 campaign. Backed by an array of conservative groups, the former clerk to Justice Clarence Thomas said the court should take his case to “remove the threat” that the loss of his license “poses not just to the First Amendment but to the ability of attorneys fiercely to advocate for their clients without fear of politicized disbarment.”

Eastman’s good news came Thursday, when the court asked the state bar to respond to his petition. It only takes one justice to request a response, so we don’t know whether he will attract the required four justices to grant review (or how a majority of the court would rule on his case if it did grant review). Relatedly, we don’t know if Thomas, who previously recused himself from an Eastman-related case without explaining why, is participating in this one. If he’s not, that could hurt the petitioner’s chances. We should find out later this year whether Eastman’s bar fight will join the DOGE discovery dispute and other appeals this term.

The justices are off the bench until they return for their November hearing session. But the court will keep making news in the meantime, with the latest order list due Monday morning, plus whatever unscheduled emergency actions the court takes. Among the pending disputes the court can resolve anytime are the administration’s bid to enforce its ban on gender-affirming medical care for federal prisoners, as well as an urgent application from a high school wrestler and her mother seeking an injunction that would prevent her from wrestling transgender girls this upcoming season.

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“I know the President has the power to pardon, but can Congress pass a law that says a person must be convicted before they can be pardoned? Or a law that says they must apply for a pardon stating what criminal activity they engaged in before the President can use the pardon power, so everyone knows what crime(s) they committed?” — Bec J

Hi Bec,

I think the answer to both questions is “no.”

The pardon power is a vast constitutional authority belonging to the president.

To be sure, the power has limits. It applies to federal, not state, crimes. It applies to those offenses only after they occur; pardons aren’t permission slips to commit crimes in the future. Presidents also can’t pardon impeachments, so that is one area that the Constitution has carved out for Congress.

Beyond that, the Supreme Court has called the power “unlimited,” writing in an 1866 case that it “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”

Highlighting the limits of congressional authority in this area (outside of impeachment), the court said in that same case, “This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”

Against that backdrop, we can see why Congress is severely limited here.

Of course, it can impeach and remove the president for corruptly using his power. Even if a president could pardon themselves generally (a topic we explored last week), the impeachment exception to the pardon power means they wouldn’t be able to exempt themselves from those political proceedings.

With that background in mind, I think the courts would say that Congress can’t pass either of the two laws you suggest. I also think there are considerations to keep in mind that might caution against passing such laws even if Congress could, including the consideration of protecting the innocent from unjust prosecutions.

Start with whether Congress can pass a law that says “a person must be convicted before they can be pardoned.” That would run up against the court’s observation that the pardon power “may be exercised at any time after its commission” — even “before legal proceedings are taken.” That observation is supported by the plain constitutional text of the pardon power, which contains no conviction requirement.

There would be a similar problem with a law that says clemency hopefuls “must apply for a pardon stating what criminal activity they engaged in before the President can use the pardon power, so everyone knows what crime(s) they committed.”

Nothing in the Constitution says a person must apply for a pardon at all, much less that they need to describe their criminal activity in doing so. Such a law would therefore seem to interfere unduly with the president’s power. While presidents besides Donald Trump have relied on a standardized application process, whether they do so is up to them, not Congress.

Tying in the innocence point I flagged above, consider the following in thinking about both of these hypothetical laws: What if a president wants to right a wrong by pardoning someone who was unjustly prosecuted? We would not want such a person to have to confess to a crime they didn’t commit.

Or, what if there were an innocent person who hadn’t been charged with any crime, and an outgoing president was concerned that their successor was intent on railroading this innocent person? From Joe Biden’s perspective, that was the situation he faced when he preemptively pardoned Anthony Fauci and others he feared would be targeted by Trump’s second-term retribution campaign. Had those laws been in place at the time, Biden could not have issued that protective clemency.

Whatever one thinks of Biden’s or Trump’s pardons, if Congress is serious about reforming this massive presidential power, then it would need to advance a constitutional amendment to alter that power, which is firmly in the executive’s control until the Constitution says otherwise.

Ultimately, any of this would require a Congress that is willing to act. In the meantime, this discussion reinforces a point that I landed on when answering a prior question about pardons: “the best way — maybe the only real way — to combat the corrupt exercise of the pardon power is to not elect corrupt presidents.”

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John Eastman has amassed a small army of support from conservative legal voices backing his bid for the Supreme Court to help him keep his law license.

Among the many amicus briefs urging the justices to grant review of Eastman’s petition are Sens. Ted Cruz, R-Texas, and Mike Lee, R-Utah. Sounding a similar note to briefs from other supporters, they told the justices that “[p]olitical activists have turned the bar disciplinary process into a weapon against lawyers on the disfavored side of public controversies.”

Whether that support from Cruz, Lee and others will help convince the justices to consider Eastman’s appeal remains to be seen. It takes four justices to grant review.

If the court grants review — we won’t find out for at least a few weeks — that wouldn’t necessarily mean that it will side with Eastman in the end. It would mean that the justices will consider doing so and will issue a ruling one way or the other after holding a hearing. The court denies most petitions.

The California authorities found that Eastman’s disbarment is needed “to protect the public, the courts, and the legal profession” following his misconduct in representing President Donald Trump and his 2020 campaign. The state bar waived its right to respond to Eastman’s petition, which could signal to the justices that the matter is not worth their time, a sign that the amicus briefs urging review are attempting to counteract.

This litigation is developing as an unrelated bar complaint was filed in California against Trump’s new White House press secretary, Katie Zacharia, asking the state to investigate whether she violated California law by holding herself out as a lawyer despite apparently not being admitted to practice law.

Among Eastman’s backers are a pack of 17 current and former Trump lawyers and a coalition that includes a group called the Conservative Legal Defense and Education Fund.

Not all the amicus briefs are as partisan-aligned. A filing from law professors warned that disbarments based on political advocacy “are likely to arise again, both from the left and from the right.” The professors noted that Eastman’s case “also involves other allegations of impropriety, such as alleged false statements to courts,” which the academics said they weren’t weighing in on.

Eastman’s petition is currently set to be considered at one of the justices’ upcoming private conferences on Nov. 6. If the court doesn’t call for the state to respond to the petition, then that would all but guarantee that it will deny it.

If the court requests a response, that wouldn’t mean that it will grant Eastman’s petition, but that could prolong the review process. It only takes one interested justice to get the court to request a response. Like the secret vote tallies when the court grants review of petitions, the court does not publicize which justice or justices request responses; the public dockets reflect the actions as taken on behalf of the court.

Justice Clarence Thomas, for whom Eastman clerked, previously recused himself from an Eastman-related case. But the justice did not explain why, so it is unclear whether he will weigh in on this petition. If Thomas recuses himself from this one, too, then that could make it more difficult for his former clerk to attract enough votes for review.

The California bar court rejected Eastman against the backdrop of what the court called his “attempts to actively undermine the results of an election to the most powerful office in the United States with the goal of delaying or invalidating the lawful installation of his client’s electoral opponent and thereby keep his client in office.”

The bar court agreed that Eastman committed several instances of professional misconduct, including trying to mislead the courts, the public and Trump’s first-term vice president, Mike Pence, whom Trump tried to pressure to overturn his 2020 loss to former President Joe Biden through the vice president’s ceremonial role in presiding over the Senate’s certification of the election results.

“Eastman made numerous false claims to help accomplish the conspiracy’s shared objective: to have former Vice-President Pence run interference on the electoral vote count with the goal to have him reject or delay the counting of electoral votes on January 6, 2021,” the court said.

In an opinion affirming a hearing judge’s culpability findings, the court also agreed with the judge that Eastman was not culpable for one of the counts alleged by bar authorities due to a lack of evidence that his statements contributed to the assault and breach of the U.S. Capitol.

Eastman turned to the justices in Washington after the California Supreme Court made his disbarment official earlier this year. Announcing the filing of his high court petition, his lawyers said the case isn’t about relitigating the 2020 election but rather “whether a state can strip a lawyer of his license — and his livelihood — because government officials disagreed with the legal arguments he made on behalf of his client.”

They said that if it can happen to Eastman, then it can happen to any lawyer who takes on unpopular causes. They said Supreme Court review is needed “to remove the threat the decision below poses not just to the First Amendment but to the ability of attorneys fiercely to advocate for their clients without fear of politicized disbarment.”

Meanwhile, Eastman is continuing to work as a lawyer. He has filed briefs in several high-profile Supreme Court cases over the years, including in support of the Trump administration’s attempt to end birthright citizenship, which a divided court rejected in June.

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The Supreme Court on Wednesday granted emergency relief for the Trump administration’s Federal Communications Commission in a dispute over political broadcast advertising rates ahead of the midterms.

Over dissent from Justices Sonia Sotomayor and Ketanji Brown Jackson, it’s the second time in as many months that the high court has acted on the matter after backing Republicans in an earlier round as well.

At the heart of the litigation is the question of whether federal law only gives candidates themselves certain favorable rates, or whether political parties and joint fundraising committees with noncandidate members can also benefit. The FCC and GOP groups have argued for the latter interpretation, which stands to benefit them politically because Democratic candidates generally raise more money than their committees, and vice versa for Republicans.

Last month, the justices said that a federal appeals court lacked jurisdiction when it sided with four Democratic congressional candidates: Sen. Jon Ossoff of Georgia, Rep. Kristen McDonald Rivet of Michigan, former Sen. Sherrod Brown of Ohio and former Gov. Roy Cooper of North Carolina. Jackson dissented from that ruling.

The Democrats then brought another challenge to force the merits of the issue. A divided panel on the U.S. Court of Appeals for the 4th Circuit sided with them again, accusing the FCC of “gamesmanship” ahead of the midterms.

“If allowed to continue dragging its feet, the FCC will have evaded meaningful judicial review of its newly created rule,” Judges Robert King and James Wynn wrote Oct. 7. The majority gave the FCC a 12 p.m. ET deadline on Oct. 9 to resolve the candidates’ application to review their challenge to the agency’s interpretation.

GOP-appointed Judge J. Harvie Wilkinson III dissented from the Democratic-appointed majority’s order, calling it “a direct affront” to the high court’s prior ruling that favored Republicans.

The administration leaned on Wilkinson’s dissent when it turned back to the Supreme Court, seeking to halt the appellate order and Oct. 9 deadline. Chief Justice John Roberts, who fields emergency requests from the 4th Circuit, granted the agency temporary relief pending further word from the court.

In their opposition to the FCC, the Democrats said the agency was engaging in “blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.” They told the justices that they’re “up for election in just over three weeks” and are “experiencing exactly the deluge of party spending at the candidate rate that Republican Party committees promised to unleash to ‘obliterate’ them in response to the challenged agency directive.”

The national GOP senatorial and congressional committees brought a parallel Supreme Court challenge to the 4th Circuit order, which the Democrats likewise opposed.

The full Supreme Court weighed in on Wednesday, backing the administration in an unsigned opinion that said the appeals court improperly tried to force the FCC to act on that deadline.

“The Communications Act requires the Commission to act on every application it receives, but it does not obligate the Commission to act within a particular timeframe,” the court said over noted dissent from two of the court’s three Democratic-appointed justices, Sotomayor and Jackson. The pair did not explain their reasoning for dissenting.

The majority said it would be wrong to make the agency “triage its ongoing deliberation process and prepare a final order on an extremely expedited timeline.”

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