Welcome back, Deadline: Legal Newsletter readers. After talking a big game last week about Supreme Court justices who ruled against his tariffs, President Donald Trump was relatively muted when he faced them at his State of the Union speech at the Capitol on Tuesday night.
He called the 6-3 ruling “unfortunate,” as Chief Justice John Roberts and Justices Elena Kagan, Amy Coney Barrett and Brett Kavanaugh did their best to not react. They were likely braced for an unhinged performance, seeing as the president had called them cowards, disgraces, traitors and embarrassments to their families while saying he was “so proud” of Kavanaugh for dissenting.
Turning to their legal work this week, the justices agreed to review a climate-related appeal from oil companies backed by the Trump administration, and they held four hearings and decided four cases. The batch included a 5-4 ruling immunizing the government from lawsuits for damages even when the Postal Service refuses to deliver mail; Trump appointee Neil Gorsuch joined Justice Sonia Sotomayor’s dissent from Justice Clarence Thomas’ majority opinion, which otherwise split the justices along the party lines of their appointing presidents.
Sotomayor was alone in a death penalty case when she called for transparency on Florida executions. Though she agreed to let a lethal injection go forward on Tuesday, the Obama appointee raised broader concerns that the state’s capital punishment practice features expired and incorrect drugs and doses, as well as “recordkeeping lapses that could mask yet additional failings.”
In transparency news about the court itself, it took the work of a watchdog group to get audio published from last term’s opinion announcements, when justices summarize their rulings in court and, in rare cases, read their dissents from the bench to sound the alarm. Fix the Court’s efforts spotlight the justices’ ongoing refusal to publish those announcements, even though they happen in open court, just like the hearings the court livestreams and posts on its website. While hardly the existential stuff of executions, I explained here why the court is still wrong to keep that audio cooped up.
Looking ahead, guns and drugs will clash Monday at the court’s latest Second Amendment hearing. The justices are considering whether the federal law that bans gun possession by someone who’s an “unlawful user” of, or addicted to, any controlled substance is unconstitutional in the case of Ali Danial Hemani. The Trump administration, which has cast itself as a great defender of the right to keep and bear arms, wants to disarm Hemani due to what it called his “habitual use of marijuana.” In light of recent high court precedent that requires making historical analogies to justify modern gun laws, the government pointed to laws from the time of the country’s founding that restricted the rights of drunkards.
Hemani countered that the federal law in question is too vague and that there’s no historical tradition in this country of “stripping anyone who consumes an intoxicant a few times a week of the right to keep a firearm in the home for self-defense.” He said the government’s logic would mean that anyone who regularly “takes a sleep gummy or drinks cannabis tea a few nights a week, but also anyone who regularly has a beer with dinner,” could lose their self-defense rights.
And with potential U.S. military action against Iran top of mind heading into the weekend, the latter nation lurks in the shadows of the Hemani case, too. When the Justice Department successfully urged the court to review his case, specifically — other cases around the country raised the same legal issue — the DOJ led its petition with several references to Iran. Writing that the dual U.S. and Pakistani citizen’s actions “have drawn the attention” of the FBI, the government said Hemani was “poised to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps,” and that he had “traveled to Iran to participate in a celebration of the life of Qasem Soleimani, an Iranian general and terrorist who had been killed by an American drone strike.”
What does any of that have to do with the Second Amendment? Gun rights advocates have the same question. They devoted part of their amicus brief to warning the court not to fall for what they view as an underhanded government litigation tactic: “handpicking unsympathetic criminal defendants to justify its preferred gun control.” Groups led by Gun Owners of America said in their brief that the court should “decide the easy question presented and ignore the Government’s irrelevant character assassination.” Quoting from the court’s 2008 ruling that established gun rights in the home for self-defense, they called Hemani’s Glock 19 handgun “the ‘quintessential’ and ‘most popular weapon chosen by Americans for self-defense,’ which ‘all Americans’ presumptively may possess.”
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