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Marty Lederman @marty_lederman
, 3 tweets, 2 min read Read on Twitter
Originalism bleg (or is it "tweg"?): The @NwULRev "Originalism 3.0" conference blurbed: "As originalist modes of argument come to dominate Supreme Court opinions and argument . . . ." This got me curious: Apart from Heller, ...

@kewhittington @lsolum @FedSoc
2/ ... and possibly the Scalia dissent in Noel Canning, what SCOTUS opinions, if any, do proponents of original-public-meaning originalism consider to be exemplary--or even passable--examples of the practice? Two subcategories: (i) Cases in which the Court or a Justice ...
3/ ... concludes that the OPM reading of the text *precludes* what a government has done (e.g., Scalia in Heller), and (ii) Cases in which the Court or a Justice concludes that the government acted *without authority* b/c there's no textual hook for the action. Thanks in advance.
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Did you know? That Rod Rosenstein automatically *was* the "acting AG" in the first 12-24 hours after Sessions' resignation (on 11/7) and that Trump therefore *displaced* him with Whitaker (on 11/8)?
@just_security @walterdellinger @AJosephOConnell
Judge Moss stressed the displacement point at a hearing last week (and prompted the DOJ lawyer to say that no POTUS had ever done so before 2007) and the "next day" nature of the displacement was confirmed by the Trump directive to Whitaker, which DOJ just disclosed yesterday.
Here's Trump's memo to "Chief of Staff" Whitaker from 11/08/18.

justsecurity.org/wp-content/upl…
Read 4 tweets
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1/ Wow, is this comprehensive--and, best I can tell on first read, completely dispositive on actual legislative intent (or at least the intent of all the legislators who considered how the VRA would work).

@AJosephOConnell @steve_vladeck @walterdellinger
2/ To be sure, the final language of the VRA surely could've been clearer on the question, and it left an opening for OLC's reading, but seems to me Migala has shown that the "508-controls" view is much more plausible, even before one applies the avoidance canon.
3/ He confirms--w/far greater detail than we did--much of what @walterdellinger and I wrote, including our account of the way Congress resolved the same tension in 1873 and our reasons for thinking the OLC view leads to surely unintended anomalies.

justsecurity.org/61483/initial-…
Read 4 tweets
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1/ I'm gonna play devil's advocate here. It's hardly news that Trump directed the hush money to Stormy Daniels. Duh. Indeed, although he obviously would've paid her off anyway even if he hadn't been running for POTUS, it's surely reasonable to surmise ...
@just_security
2/ ... that the payment was *higher* because of the election. I doubt Trump realized that was a campaign finance violation, but let's also assume arguendo that he knew or suspected it was illegal and didn't really care--that he was indifferent to what the law prohibited.
3/ No doubt, such indifference to law ain't a good thing in a President. And yes, it would mean Trump is, at least in theory, criminally culpable for soliciting or conspiring to violate the law. OK, but what would follow from that?
Read 13 tweets

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Taylor judgment is out. Currently reading. By a 3-2 majority (Ellen France J, Glazebrook J, Elias CJ; O'Regan and William Young JJ dissenting), the Supreme Court has ruled that courts have the power to declare laws inconsistent with the New Zealand Bill of Rights Act 1990. /1
By this same majority, the Supreme Court has upheld the declaration issued in the courts below that the prisoner voting ban was inconsistent with the right to vote, found in s 12 of the New Zealand Bill of Rights Act 1990. /2
I wrote my Honours thesis on declarations of inconsistency,+my view is that affirming that courts have this power is not that controversial. Courts already 'concluded' in past cases that laws were inconsistent w/ the Bill of Rights. Declaring the position is no great extension /3
Read 28 tweets
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(1) Live tweeting the swearing in of Justice Kavanaugh, October 6, 2018.

The White House and then the Supreme Court will host the two ceremonies necessary for the Justice to take his seat on Monday.

#ThankYouSenators #GodBlessAmerica #Originalism 🇺🇸👨‍⚖️
(2) Brett M. Kavanaugh will soon be the 102nd Associate Justice of the Supreme Court of the USA. He has earned this highest honor throughout his life, inspired by his trailblazing mother, Judge Martha Kavanaugh.

His title for these few hours is Associate Justice Designate.
(3) This statement from the Supreme Court explains the two ceremonies:
Read 19 tweets
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** announcement **

It's 10 am, and I'll be here all day, live-tweeting Dr. Christine Blasey Ford's testimony then Brett's lies and every misogynistic moment in between.

#StopKavanaugh
In addition, there will be timely updates and thoughtful takes on our home page from colleagues @joanmccarter @kerryeleveld @Scout_Finch @wallein @HunterDK et al. dailykos.com
Dr. Christine Blasey Ford is here, and she's wearing a cerulean power suit. She looks nervous, keeping her head down--when she finally turned, audible clicks take over the audio.
Read 374 tweets
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DC PEOPLE: Go to the Supreme Court *now* to join the protest tonight as Trump announces his pick. We’ll be there for hours. Let’s start this fight with a roar.
m.facebook.com/events/2476297…
Trump just nominated Brett Kavanaugh, GOP lifer turned hard-right judge, noted for arguing that presidents shouldn’t be bothered by trifles like subpoenas and criminal investigations. If you believe nobody is above the law, it’s time to fight.

See you at the Supreme Court.
Anti-abortion demonstrators, who know full well that a vote for Kavanaugh is a vote to end Roe and criminalize abortion, are out in force at SCOTUS.

Want to defend reproductive freedom? Come on out to the Supreme Court now.
Read 11 tweets
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We're going to hear about Supreme Court opinions in a minute or two, and I want to address one issue in #MasterpieceCakeshop that has been badly obscured by the bakery: That case is not and never was about free speech or free expression. Because of what acutally happened
Here is what actually happened. Facts. The gay couple walked in. Introduced themselves and said we want a cake for “our wedding.” The did not discuss what would be on the cake, the decoration, the color, the artistry, or even whether the bakery would participate in the wedding.
We know this happened because THE PARTIES AGREED IT HAPPENED. You don't have to believe me, go read it for yourself. Here's a link to the findings of undisputed fact. Check out paragraphs 5, 6, 7, 8.
aclu.org/sites/default/…
Read 15 tweets
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(THREAD) "Executive privilege" is about to become the most important term in U.S. political discourse. This thread—written by an attorney—offers a basic primer in executive privilege that'll help you navigate the Trump-Russia story in the days ahead. I hope you'll read and share.
1/ Because executive privilege only arises in—that is, can only be raised in—unusual circumstances, it hasn't often been litigated in the courts and doesn't even have a firm definition in case law. Usually, the three branches of government find ways to avoid use of the privilege.
2/ The privilege attaches to the executive branch of government, not the judicial or legislative branches. It becomes relevant when Congress wants information from the executive branch or a subpoena has been issued by a judge to get certain information from the executive branch.
Read 73 tweets

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