I see many people responding to this tweet arguing theology and law.

But Martin's claim isn't true to begin with. On the denial of a stay application, the justices don’t have to announce their votes. We know only that 3 more liberal justices chose to do so. ACB didn't.
Reminder: when SCOTUS rules on an application, we know only at a minimum that five justices voted for it, plus whatever else they tell us.

Here, Justices Breyer, Sotomayor, and Kagan noted dissents, but that does not tell us how ACB or any of the others voted in particular.
So this vote could have been 5-4 or it could have been 6-3. But the point is, we don't actually know.

So numbnuts going on about "rawr, death penalty rawr not Catholic" is really besides the point.

Unless you guys like arguing about theology on Twitter. Damn mutants.
I suppose also it could have been 5-3-1.

But, anyway, we don't know. This is one of the features of the shadow docket that makes it disturbingly opaque since often lives are on the line and justices don't have to explain themselves.

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More from @gabrielmalor

21 Nov
5th Cir.: it violates the constitution for police officers to inflict twenty-six blunt force injuries on a man in the fetal position crying out for help and tase him twice. And this was clearly established.

No QI for the officers. ca5.uscourts.gov/opinions/pub/1… Image
Judge Willet, writing for the Court, starts with one of my favorite scenes from the West Wing. Image
(Basically any time Fitzwallace has to iron out Bartlett or Leo, it's on my list of favorite scenes.)
Read 4 tweets
20 Nov
Good thread on today's 11th Cir. decision holding, 2-1, that a city and county's prohibition on conversion therapy for minors violates the First Amendment.

Decision here: media.ca11.uscourts.gov/opinions/pub/f…

Thread here -->
There is a circuit split on the question of what speech restrictions you can impose on medical providers (or so-called medical providers in the case of conversion therapy practitioners).

But this is not, as some hysterically bad legal commentators would tell you, a new thing.
The same issue arose in the context of whether doctors can be forbidden from inquiring whether you own guns.

And the script got flipped a few years ago when California forced pro-life pregnancy centers to talk about abortion.
Read 4 tweets
20 Nov
Disbarment is the death penalty of disciplinary punishments. It only happens when you've done the worst of the worst, and even then usually only if you've done something terrifically bad AFTER you've been warned to stop.

We're talking the commission of actual crimes.
What Giuliani and Powell are doing is playing fast and loose with the facts in press conferences. Which, yeah, that's not even gonna draw an order to show cause.
Read 4 tweets
19 Nov
This strategy relies on a misunderstanding of how electors can be chosen.
Here's the short version. Electors clause provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, ..."

So the Trump try-hard theory is that the legislatures can just pop up at any time and appoint new Trump electors.
What they miss, however, is that two clauses later, the Constitution provides that "Congress may determine the Time of chusing the Electors . . ."

That time, of course, was election day, Nov. 3 this year.
Read 7 tweets
19 Nov
On Tuesday Giuliani was asked by Judge Brann if the campaign was alleging fraud.

After initially suggesting that they were, the judge reminded Giuliani that if so, they had to meet a more difficult standard. So Giuliani backed down and conceded they weren't alleging fraud.
All that really matters is what the campaign can prove in court. So far the various campaign and GOP challenges to the election are at 1-29 in court. One win; twenty-nine losses. And counting.

That single win changed a few hundred votes, and did not switch the winner.
As for the affidavits Giuliani and Powell claim to have, if they're anything like the declarations offered in the Arizona and the Wisconsin cases that the campaign lost, they're not going to help.
Read 6 tweets
18 Nov
Lawgeeks, here's the Trump campaign's proposed second amended complaint, which purports to bring back a due process claim related to GOP observers and also argues that the Pennsylvania Supreme Court's interpretation of Pennsylvania law can be disregarded. courtlistener.com/recap/gov.usco…
I should note that this proposed second amended complaint has NOT been accepted by the Court AND, apparently, it has been temporarily withdrawn pending re-filing.

(I'm not sure what this withdrawn and refiling business is about.)
For some reason the Trump campaign intends to rely in part on standards contained in a European think tank's pamphlet on elections, which is derived from international laws.

(This is not a good source of even persuasive precedent on the topic of U.S. elections.)
Read 7 tweets

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