The ACA case is a perfect example: the plaintiffs don't have standing ($0 tax doesn't affect them), their theory is absurd (Congress can't zero-out a tax?), and the remedy is ridiculous (the $0 tax is plainly severable from pre-existing condition protections). And yet... /1
... nine Republican-appointed judges who have reviewed the ACA case have approved this thrice-ridiculous claim. A district judge adopted the whole thing. Two circuit judges adopted the first two parts, said the third part needs more analysis. Six more circuit judges agreed. /2
There's no way to reconcile the ACA lawsuit with basic, longstanding doctrines in the law like standing and severability. The case keeps winning so Republican judges can enact policy changes voters hate and Congress rejected. /3

supremecourt.gov/DocketPDF/19/1…
supremecourt.gov/DocketPDF/19/1…
The problem isn't just Republican judges undoing the work of Congress. They'll happily expand statutes for political reasons. The Voting Rights Act (1965) was held to be outdated, but the Arbitration Act (1926) defeats everything before or after it. /4
The courts even mess around with the timing of cases for political reasons. Cases bad for Republicans get slow-rolled and dragged out past elections. Cases good for Republicans get rocketed to the top, enjoying immediate relief via stay orders. /5
The problem is getting much worse. The bar for ABA-qualified isn't high, and doesn't account for ideology. Clinton had 3 not-qualified judges confirmed. Obama didn't even nominate any. GW Bush and Trump had 12 confirmed, with 1 pending. /6
I hear Kavanaugh "radicalized" conservatives. Sure, whatever—but even before Ford's allegations he was obviously picked solely to advance partisan politics. His entire career was Republican politics, even his brief stints at Kirkland & Ellis. /7
All of which is how we end up here, with proposals to add SCOTUS seats (which frankly should've been done with the addition of new federal circuits) or to abandon judicial review. There aren't any other options. Republicans broke the federal courts. /end

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More from @MaxKennerly

20 Oct
Let's talk for a minute about the Pennsylvania election case.

It's a win for now, because a 4-4 tied SCOTUS vote means the lower court (here, PA Supreme) order stays intact.

But it's terrifying that 4 Justices thought otherwise, and might soon be joined by a 5th (Barrett). /1
Two basic, longstanding principles of law:

first, states control their own elections, though Congress can impose conditions;

second, state courts interpret their own state laws, including state constitutions.

That should've ended this case. Excerpt from PA Dems' brief.
/2
5 Republican Justices already blasted a hole in Congress's power to regulate elections in Shelby County v Holder, invalidating Congress's reauthorization of the VRA. Pics 1 & 2 from Ginsburg's dissent.

In the PA case, the Republicans' brief sang a different tune. (Pics 3 & 4) /3
Read 8 tweets
17 Oct
I was wondering if this was one of those "applying precedent leads us to this unfortunately result..." cases but, no, the reality is that Barrett plowed through state law and a jury's factual findings to cheat the plaintiff out of her fair compensation. /1
The plaintiff's appellate brief is available here: scribd.com/document/48048…

The facts are recounted on pages 16-21 of the PDF. They're awful. The guard repeatedly raped her at the prison.

The issue was whether the county had to pay for the $6,700,000 jury verdict. /2
Consistent with Wisconsin law, the jury had already heard ample evidence about whether the rapes were within the guard's "scope of employment," and they had decided the answer was yes. Excerpts from plaintiff's brief. /3
Read 9 tweets
10 Oct
A good article about the openly activist nature of Barrett's "originalism." We've already seen it in practice from her circuit court opinions, where she uses it—like all "originalists"—to produce the result she wants. For example, let's talk about the Second Amendment.
/1
In DC v Heller, the "originalists" faced a problem: during the constitutional convention, there were several proposals (like from NH's delegation and minorities in MD, PA & MA) to protect individual gun ownership. They were all rejected.

Excerpts from Stevens' dissent. /2
Scalia's response, writing for the majority, was that it was stupid to look at rejected constitutional proposals. Further, the *rejected* NH/MD/PA/MA proposals actually somehow represented a prevailing view of an essential legal right the Framers didn't bother to write down.🤷‍♂️ /3
Read 5 tweets
6 Oct
Putting aside the 15-year-old on TikTok, yes, Trump's condition is still quite worrying. COVID's course is slow compared to the flu. Dyspnea often develops 4 to 10 days after symptom onset, and patients can still deteriorate after that. ncbi.nlm.nih.gov/pmc/articles/P…

/1
In the most recent remdesivir trial (which involved early-stage patients with SpO2 >94%, which it seems Trump went below), one-third of patients who took the drug were still hospitalized 11 days later. Around 10% were still there a month later. jamanetwork.com/journals/jama/…

/2
The decision to give dexamethasone is still a big mystery. Either Trump had 'severe' COVID-19, or he has jumped the gun and might suffer for it, including the known effect of immunosuppression. Neither speaks well for his course going forward. /3
Read 5 tweets
29 Sep
I quibble with that, too. Trump's finances from 2008 onward aren't "mundane." He defaulted on the only bank lending him money, then obtained >$500m in credit despite inadequate collateral, then liquidated >99.5% of his stocks & bonds. That's unusual. /1
Litigation is common in business. The surprising part here is how, as of 2008, Deutsche Bank was the only bank that would loan him money (and only with a personal guarantee), but he nonetheless defaulted. Standing alone, it makes little business sense. /2 chicagotribune.com/news/ct-xpm-20…
The 2008 sale of Trump's Palm Beach home to the bad guy from TENET has always been odd, but perhaps Rybolovlev is just bad with money. 🤷‍♂️ Either way, it coincides with a sharp rise in Trump condos being bought through shell companies and/or with cash. /3
buzzfeednews.com/article/thomas…
Read 14 tweets
27 Sep
Federal income taxes paid in 2017 (jointly with spouse):

Joe Biden - $3,742,974
Kamala Harris - $516,469
Bernie Sanders - $343,882
Elizabeth Warren - $268,484

Donald Trump - $750
Of course, we did not need a NYTimes investigation (plus I presume some whistleblower) to find tax returns for Biden, Harris, Sanders, and Warren.

Biden: go.joebiden.com/page/-/vpdocs/…

Harris: s3.amazonaws.com/pdfs.taxnotes.…

Sanders: berniesanders.com/documents/9/Sa…

Warren: elizabethwarren.com/wp-content/upl…
For people wondering, Biden's income history looks like this. The big payday was from his post-VP book sales and speaking engagements: forbes.com/sites/michelat…
Read 5 tweets

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