The Dictatorship
The week at SCOTUS: Maps, mifepristone and more divide justices on the shadow docket
Welcome back, Deadline: Legal Newsletter readers. Waiting is a big part of Supreme Court reporting. The court is notoriously opaque about what it’s doing, when it’s doing it and, sometimes, due to its lack of explanations for significant rulings, why it’s doing it. But let’s put a pin in that last “shadow docket” point for now. It’ll make a surprise cameo later.
We were in familiar waiting territory on Thursday afternoon, as the clock ticked toward 5 p.m. ET. That was the latest arbitrary deadline that Justice Samuel Alito had set in the emergency litigation over nationwide mail access to mifepristone. If that deadline were to pass without word from the high court, then an unprecedented lower court order from the 5th Circuit halting such access would take effect. A company that makes the abortion pill warned that the order would unleash “chaos for patients, providers, pharmacies, and the drug-regulatory system.”
Five o’clock came and went. No word from the court. It wasn’t until closer to 5:30 that the justices decided — over dissents from Alito and Justice Clarence Thomas — to maintain mifepristone access while the litigation continues in the lower court. It could come back to the justices again, but the status quo access stands for now.
It’s unclear what real effect the time gap had, if any, when the 5th Circuit order was technically live for about a half hour. But what was clear, in those moments approaching the deadline and increasingly as the postdeadline minutes mounted before the court finally ruled, is that this is no way to run a modern legal system. Due to the court’s outsize influence on American life writ large, it’s no way to run a country.
Instead of imposing an arbitrary deadline that caused needless confusion and effectively handed an unearned win to the losing party (Louisiana), albeit a very brief and possibly meaningless one in retrospect, Alito could have simply halted the circuit order indefinitely until the full high court was ready to act. He had to have a sense that his dissenting view would be in the minority even on this court, so an indefinite stay pending the full court’s review would have done no harm. The arbitrary deadline, on the other hand, risked serious confusion at the very least.
Turning to the dissents, Alito said all this stemmed from “the perpetration of a scheme to undermine our decision in Dobbs,” the 2022 opinion he authored that overturned federal abortion rights. Thomas wrote his own dissent, explaining whyin his view, mifepristone manufacturers not only failed to make a case for the emergency relief that the majority granted but also were, in fact, profiting from a “criminal enterprise.”
What did Alito and Thomas’ colleagues in the majority think? Besides the obvious fact that none of the other seven justices joined either dissent, we don’t have much to go on. In the typical fashion of the shadow docket orders that Alito and Thomas have joined over dissents from Democratic-appointed justices, the majority’s unsigned order gave no reasoning. It only said that the 5th Circuit’s order would be halted pending a full ruling in that appeals court and whatever the Supreme Court decides on any further appeal back to the justices.
Alito took a swipe at that lack of explanation in the very first sentence of his dissent. “The Court’s unreasoned order granting stays in this case is remarkable,” he wrote. Putting aside the merits of the argument that followed, it’s “remarkable,” to use his word, that he would think to call out the “unreasoned” nature of the order — an order that, it bears emphasizing, maintained the status quo rather than upend it and unleash the chaos that the dissenters would have risked had their view prevailed.
It’s remarkable not only because of the hypocrisy it required, given Alito’s past joining of such majority orders and his public defense of the shadow docket (or “emergency docket” or “interim docket” or whatever term one prefers for these fast-track orders). It’s even more remarkable because, moments after the mifepristone order came down on Thursday, the GOP-appointed majority issued its latest unexplained order lifting a lower court’s stay, allowing Texas to execute Edward Busby that night for the 2004 murder of Laura Crane, despite unresolved questions about whether Busby was too intellectually disabled to be executed.
Justice Ketanji Brown Jackson’s dissent recounted the extraordinary backstory: The state’s own expert had agreed with Busby’s expert that he was intellectually disabled, and so Texas had joined him in asking the state courts to deem him ineligible for execution. But the Texas courts refused, and then the state changed its mind.
Yet a 5th Circuit panel (a different one from the mifepristone case) granted Busby a temporary stay, with one of the circuit judges noting that the Supreme Court is about to issue a ruling this term in a case called Hamm v. Smith that could be relevant to Busby’s appeal. That judge, Obama appointee Stephen Higginson, wrote that in “a matter of life and death, we must be certain that we apply the proper constitutional rule as to whether and how to determine intellectual disability before states may execute defendants for capital crimes, especially when it is a rule that the Supreme Court imminently will clarify.”
The Supreme Court majority wasn’t bothered by that. “Today, the Court finds itself unable to tolerate even a brief delay,” Jackson wrote in her dissentjoined by Justice Sonia Sotomayor. (The third Democratic appointee, Elena Kagan, noted her dissent but didn’t join Jackson or explain her disagreement.) Jackson wrote that the majority insisted on immediately backing the state’s “current inclination (that it must execute Busby tonight)” over the state’s “former one (that it could not execute Busby at all).” The Biden appointee concluded by observing that, in death penalty cases, the justices “rarely intervene to preserve life. I cannot understand the Court’s rush to extinguish it, much less in the circumstances of this case.”
And that was just an unexplained shadow docket example from that same night. Earlier this week, on Monday, the GOP-appointed majority issued yet another “unreasoned” order, as Alito would call the mifepristone order later in the week, in yet another redistricting win for Republicans, when the majority granted Alabama emergency relief to let it use a congressional map that was previously deemed discriminatory.
As we head into the weekend, we’re awaiting court action on Virginia’s emergency bid to save its Democratic-friendly redistricting effort. I explained in this piece why it’s a long shot, the bottom line being that it’s mainly a state issue and the justices deal with federal issues, though, to be sure, state officials make a federal pitch for relief. Still, the most likely outcome at the high court is a denial and therefore another win for Republicans this election season. But unlike this week’s Alabama order and the recent voting rights ruling in Louisiana v. Callais that sparked the latest GOP map maneuvers, this Virginia appeal might not prompt all three Democratic appointees to dissent. The question is more likely how many dissents, if any, accompany denial, than whether it’s denied.
But, once again, we wait.
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The Dictatorship
Maricopa County official fears Stephen Miller’s group has taken over election office
Even the Republican county attorney in Arizona’s most populous locality is sounding the alarm on potential election meddling by MAGA world.
That’s the crux of a court filing submitted by Maricopa County Attorney Rachel Mitchell this week. For those unaware, Mitchell garnered national attention after Senate Republicans tapped her to question Christine Blasey Ford during Supreme Court Justice Brett Kavanaugh’s confirmation process after Ford alleged that Kavanaugh sexually assaulted her as a teenager. Kavanaugh has flatly denied the allegation.
Two years later, Mitchell successfully ran for Maricopa County attorney, and she endorsed Donald Trump’s presidential campaign in 2024 — in other words, she is not an opponent of the MAGA movement. So it’s noteworthy that she and her legal team are accusing America First Legal, the right-wing activist group founded by White House adviser Stephen Miller, of effectively taking control of the Maricopa County Recorder’s Office, which helps administer elections.
The office is led by Justin Heap, who has egged on the Trump administration’s push to acquire sensitive voter data in Arizona. And the disturbing context to all this is Trump has openly declared that Republicans should nationalize voting processes and “take over the voting” in several cities — like Phoenix, perhaps.
According to The Arizona Republic:
In a June 8 legal filing, Mitchell’s lawyers asked Maricopa County Superior Court Judge Scott Blaney to rein in Recorder Justin Heap’s politically connected firm, the America First Legal Foundation, which it said has undertaken “an unprecedented power grab.”
“The Recorder lacks any explicit or implicit statutory authority to hire outside counsel — let alone a partisan organization — to serve as in-house counsel on ‘all’ matters under his ‘purview,’” Mitchell’s lawyers wrote.
America First Legal is advising Heap’s office as he battles the Republican-controlled Maricopa County Board of Supervisors in an attempt to claim official powers for himself. As Democracy Docket reportedthe dispute at one point allegedly involved Heap seizing election equipment and provisional ballot envelopes while votes were being cast in a local election in March, causing county supervisors to warn about “grave chain-of-custody concerns.”
The Arizona Republic said Mitchell listed several examples of America First Legal wielding unauthorized power in Heap’s office amid the dispute with the board:
Mitchell’s request, handled by the law firm of Snell and Wilmer, identified six examples of what she contends involves America First Legal going beyond Blaney’s intended role for them: litigating the power-sharing agreement with the board.
Now, Mitchell argues, America First Legal has claimed authority over all matters relating to early voting, told election officials to disregard directives from or seek advice from Mitchell’s office, threatened prosecution over drop boxes and sent a warning letter signaling new litigation against the board.
Let’s not downplay the crisis playing out here. The GOP-controlled Board of Supervisors and the Republican county attorney overseeing the largest county in Arizona, where the majority of the state’s voters live, are calling out the pro-MAGA county recorder, who stands accused of allowing a right-wing activist group, founded by a White House official, to have unchecked power over electoral processes. (Heap’s office did not immediately respond to MS NOW’s request for comment.)
The fact that even conservative officials are sounding the alarm here shows how extreme, unprecedented and potentially threatening to democracy this situation could prove to be.
Ja’han Jones is an MS NOW opinion blogger. He previously wrote The ReidOut Blog.
A federal judge in Washington has denied a bid Wednesday brought by a watchdog group to immediately block the Justice Department’s “anti-weaponization” fund, for now choosing to trust the department’s assertions that it is not moving forward with the fund.
U.S. District Judge Richard Leon ruled immediately, denying Citizens for Responsibility and Ethics in Washington’s request for a temporary restraining order that would have blocked the Department of Justice from taking steps to create the fund.
Throughout the 30-minute hearing, the DOJ reiterated that the administration was not moving forward with the nearly $1.8 billion fund, which seeks to compensate individuals who allege they have been politically targeted or victimized by the DOJ.
Andrew Block, the only lawyer present for the government, repeatedly cited Acting Attorney General Todd Blanche’s June 2 congressional testimonyin which he said the administration was “not moving forward” with plans to create the fund.
Leon indicated he agreed with the DOJ’s position that the case appeared to be moot, saying he was not persuaded there was an issue for the court to decide regarding the creation of the fund. He issued a stern warning to the DOJ, saying, “Don’t play possum with this court!” — meaning he does not want to be deceived.
The plaintiffs argued Blanche’s testimony did not amount to an official cancellation. Nikhel Sus, CREW’s attorney, said Blanche “refused to memorialize that rescission,” or in other words, put it in writing. Sus said that was “highly unusual.” Leon responded, “This whole case is highly unusual to say the least.”
Leon asked the government twice why they would not just rescind the order that established the fund. Block responded, “I don’t know,” and pointed again to Blanche’s public statements about the fund’s future.
Both Leon and Sus raised the issue of Trump’s continued public defense of the fund. “It can still be an important issue and also not moving forward,” Block said. “That isn’t a direction to move forward with the fund.”
Although Leon rejected CREW’s bid for an immediate block, he indicated he is still considering its request for a longer-term block against the fund.
A block order from a separate federal judge in Virginia remains in effect until at least Friday.
Fallon Gallagher is a legal affairs reporter for MS NOW.
The Dictatorship
‘Incredibly dangerous’: Capitol officer badly beaten by Jan. 6 rioters says Trump pardons absolved them
When FBI agents confronted Daniel Rodriguez about using a stun gun on a Washington police officer during the Jan. 6, 2021, attack on the U.S. Capitol, he wept, seeming to express remorse.
“I’m sorry,” he said through tears in a recorded interview after he was arrested in March 2021. “He’s a human being with children, and he’s not a bad guy. He sounds like he’s just doing his job and he’s — I’m an asshole.”
Two years later, as he was being led away after a judge sentenced him to more than 12 years in prison, Rodriguez raised his fist and screamed, “Trump won!”
Rodriguez is now a free man. The hefty prison sentences imposed on him and four other people convicted of assaulting police officer Michael Fanone — who was dragged into the crowd and severely beaten — were all wiped away in one of Donald Trump’s first acts as president in January 2025: He pardoned almost 1,600 people charged or convicted for their involvement in the riot.
Trump has used the clemency power like no president in history, freeing fraudsters, drug traffickers and corrupt politicians.
But his pardon of Jan. 6 defendants, more than 170 of whom pleaded guilty to assaulting law enforcement officers, stands apart. MS NOW is spotlighting the clemency granted to Jan. 6 defendants as part of a series on Trump’s pardons, “Justice Interrupted.”
“It’s incredibly dangerous,” Fanone told MS NOW in an interview. “You have individuals who were inspired by Donald Trump’s lies to storm and assault the Capitol and try to prevent the certification of a free and fair election. Donald Trump then absolved them of all of their criminal culpability.”
Trump’s first attorney general and his FBI director each told Congress they opposed pardons for people who hurt police officers, but the president did it anyway. Afterward, even some of his biggest backers balked.
“Pardoning the people who went into the Capitol and beat up a police officer violently, I think, was a mistake, because it seems to suggest that’s an OK thing to do,” Sen. Lindsay Graham, R-S.C., said on NBC’s “Meet the Press” after the pardons in 2025.
Republican Sen. Thom Tillis said on the Senate floor this past January, “People that harm police officers and destroy federal buildings should go to prison, and it’s a damn shame they’re out.”
Trump has never explained why he freed those rioters who violently assaulted police officers. When correspondent Peter Alexander confronted the president about his pardon of the man who shocked Fanone in the neck, Trump brushed aside the question.
“Among those you pardoned, D.J. Rodriguez,” Alexander said to Trump. “He drove a stun gun into the neck of a D.C. police officer who was abducted by the mob that day. He later confessed on video to the FBI and pleaded guilty for his crimes. Why does he deserve a pardon?”
Trump replied, “Well, I don’t know. Is it a pardon? Because we’re looking at commutes and we’re looking at pardons.” Told it was a pardon, he responded, “OK, well, we’ll take a look at everything. But I can say this: Murderers today are not even charged.”
But there was nothing, as Trump commented, to “look at.” Pardons are not reversible.
Fanone believes Trump knew exactly what he was doing: rewarding people who committed violence on his behalf.
“I know that he knows that it was violent. I know that he knows that, and I think that that was intentional,” he said.
In addition to Rodriguez, three others who attacked him were spared most or all of their prison terms:
- Albuquerque Cosper Head got 7 1/2 years for dragging Fanone into the mob while yelling, “I got one!”
- Kyle Young was sentenced to seven years, and Lewis Wayne Snoots to six, for helping to restrain Fanone during the attack.
- Thomas Sibick was sentenced to just over four years for assaulting Fanone and stealing his badge and radio.
Liz Oyer, a former Justice Department pardon attorney, said Trump has disregarded the normal tradition of presidential clemency.
“The things that the Justice Department traditionally looks for are acceptance of responsibility, remorse, rehabilitation, a significant track record of good conduct in the community before we would recommend someone for consideration of a presidential pardon,” she said, adding that few, if any, of the Jan. 6 defendants met that qualification.
“This president’s use of the pardon system is really undermining the legitimacy of our justice system,” she said.
In fact, a Lawfare analysis found that at least 97 of the roughly 1,600 people charged in the Capitol attack have been accused of new crimes since Jan. 6, 2021. At least 19 were accused after being pardoned.
One of the first rioters to breach police barricades, Christopher Moynihanpleaded guilty in February in New York to a harassment charge over threats to kill House Democratic Leader Hakeem Jeffries. Moynihan was later sentenced to three years’ probation.
Zachary Alama man a judge called “one of the most violent and aggressive rioters,” was sentenced in May to seven years in prison after a jury convicted him of committing a home invasion burglary in Virginia.
Andrew Paul Johnsonconvicted of illegally entering the Capitol, was pardoned despite having been accused of molesting children. In May, he was sentenced to life in prison for the sex crimes.
Fanone wasn’t supposed to be at the Capitol that day, but he rushed there when he heard the distress calls.
He was pulled into a crowd of attackers as he was trying to keep them out of the building. He was holding on to his service weapon to keep it from being taken from him. But once he felt the excruciating, debilitating shock from Rodriguez’s weapon, he knew he was in a dire situation; in fact, he thought he might be killed.
“I knew at that point that I was not going to be able to fight my way out of this,” Fanone remembered. “I wasn’t even going to be able to maintain control of my weapon. The only solution here was that people in the crowd helped me, and when I yelled out that I have kids, it worked.”
His doctors say Fanone suffered a heart attack.
Trump supporters have wrongly called Fanone a “crisis actor,” disputing that he really was attacked. Ed Martin, who once represented Jan. 6 defendants and is now the Justice Department’s pardons attorney, called him a “fake cop.”
Fanone says his life, and the lives of his loved ones, has never been the same.
“My mother’s been the target of swatting events eight times. She had a credible bomb threat called into her home,” he said.
“She had an individual pull up to her house in a pickup truck, approach her in her front yard while she was raking leaves, and throw a bag of dog feces at her.”
In an apparent attempt to wipe the charges, convictions or sentences of Jan. 6 offenders from public knowledge, the Justice Department recently took down press releases naming them from its website, calling it “partisan propaganda.”
Anyone who tries to find the official DOJ announcements of the convictions or sentencing of the men who attacked Fanone will see only broken links.
Ken Dilanian is the justice and intelligence correspondent for MS NOW.
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