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19 tweets,
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1/ Judge Pryor's statement with respect to denial of rehearing en banc refutes several irrepressible judicial myths media.ca11.uscourts.gov/opinions/pub/f…
2/ There is a "difference between a change in judicial doctrine and a change in law." The law has not changed. What changed is how the courts interpret that law. 
3/ Booker was not a "legislative amendment" that changed the statute. Nor was it a "constitutional amendment." It was a judicial decision that did not change the law. "The residual clause was...always invalid." And Booker only held that the requirement was w/o legal effect.
4/ Booker change "judicial doctrine" but was not "the equivalent of a legislative or constitutional amendment to the substance of the law." The 6th Am did not change because of Booker.
5/ Usually when a court cites Marbury, I presume that court has no actual authority to support its reasoning. Here, Pryor actually cites Marbury for Marshall's: it is the Constitution, and not the court order, that renders a statute inconsistent with the Constitution.
6/ Pryor adds a fitting citation to @StephenESachs #FindingLaw (I hope the 11th Circuit can add a citation to the final pagination: californialawreview.org/wp-content/upl…)
7/ Judge Rosenbaum wrote a lengthy response: "Pryor Statement’s theory that judicial opinions never change the law cannot be conceptually squared with the real effects of judicial opinions and the courts’ role in our constitutional system."
8/ Part II of Rosenbaum's dissent states that the inmates who were sentenced under the "mandatory" version of the guidelines would disagree that the guidelines were "never really mandatory."
9/ Rosenbaum adds "Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum."
10/ Pryor responds that Rosenbaum "makes no effort to refute my point that they are imprecise" beyond a single statement: "is certainly interesting on a metaphysical level."
11/ In Part III, Judge Rosenbaum writes that #SCOTUS does "in a very real sense, change the law" and that Pryor's statement "undermines the courts’ constitutional power of judicial review."
12/ She adds that Booker "Eliminated" the mandatory provision of the statute "through severance and exclusion." She added that #SCOTUS "effectively excised" the statute "From the U.S. Code." And "those changes are just as valid ... as if Congress" had changed the statute.
13/ Pryor's response summarized in a single word: "Wrong"
14/ Courts lack the power to "excise[]" or "erase" statutes. Here, Pryor cites Jon Mitchell's excellent article, The Writ-of-Erasure Fallacy. Pryor is right. Breyer is very, very wrong.
15/ Pryor responds to the "back on planet earth" barb citing the "modest role" of a federal judge.
16/ I addressed similar hubris in the travel ban context: For Judges, ‘Legality’ Is Their Only ‘Reality’
lawfareblog.com/judges-legalit…
lawfareblog.com/judges-legalit…
17/ Judges do not "excise" or "strike down" laws. Judges do not change laws. Judges can only change their interpretation of laws. They can do nothing else.
18/ Judges routinely say they "Strike Down Laws." For the next edition of the @RandyEBarnett & Blackman casebook, I scrubbed every instance of "strike down." I will only use "declare unconstitutional." Courts can do no more
19/ To be clear, excepts of cases will keep "strike down." Our own expositon will not
