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Mark Joseph Stern Profile picture
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23 Nov, 4 tweets, 1 min read
Good morning! The Supreme Court will issue orders at 9:30 a.m.😅
I see nothing major in the Supreme Court's orders this morning. No action on cases involving the election or COVID. No new grants. A quiet day.
Small note: Justice Kagan recused herself from the consideration of three cases in today's orders list, presumably because she was involved somehow while solicitor general ... a position she left more than 10 years ago.
The fact that Kagan is still recusing herself from cases more than 10 years after leaving the solicitor general's office should serve as a gentle reminder to Biden to weigh the likelihood of future recusals when nominating judges and justices. Recusals can change outcomes.

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More from @mjs_DC

Mark Joseph Stern Profile picture
20 Nov
🚨11th Circuit rules that bans on anti-LGBTQ "conversion therapy" violate the First Amendment. 2–1 decision, both judges in the majority appointed by Trump. A really awful and frightening decision. media.ca11.uscourts.gov/opinions/pub/f…
Note that these bans only apply to minors and licensed counselors. Not clergy or private citizens. And lawmakers found that trying to change a child's sexual orientation or gender identity is extremely harmful and dangerous. The 11th Circuit's Trump judges don't care.
This is what Rule By Trump Judges looks like: We are not allowed to shield LGBTQ youth from discredited "conversion therapy," even though it increases risk of suicide.

Trump judges won't let LGBTQ people protect our own communities, our own children, from harm. Sickening.
Read 7 tweets
Mark Joseph Stern Profile picture
13 Nov
Alito is delivering the keynote speech at this year’s Federalist Society convention. He’s using the occasion to defend the group, claiming its members face “harassment and retaliation for saying anything that departs from the law school orthodoxy.”
Alito attacks the Judicial Conference for attempting to forbid federal judges from being members of the Federalist Society, and praises the conservative judges who successfully fought the ban.
UHHH, Alito seems to be criticizing governors for issuing “sweeping restrictions” in response to COVID-19. Also criticizes progressives and New Dealers for putting too much faith in scientists and experts.
Read 17 tweets
Mark Joseph Stern Profile picture
10 Nov
Brett Kavanaugh just said “I tend to agree” that the ACA’s (zeroed out) individual mandate can be severed from the rest of the law. Unless he’s bluffing—which is possible!—that probably means the ACA is saved.
My guess at this stage: The six conservative justices find the individual mandate unconstitutional. (Which will be ridiculous, but whatever.)

Then a majority (maybe 5–4?) will just sever the individual mandate from the rest of the ACA, which will have no impact on anyone.
Here’s the full Kavanaugh quote. If he really means it, that’s the ballgame.
Read 7 tweets
Mark Joseph Stern Profile picture
10 Nov
The Supreme Court will hear arguments at 10 a.m. in a case seeking to eradicate the Affordable Care Act. The Trump administration, along with 18 Republican attorneys general, have asked the court to abolish the entire law, stripping health insurance from about 23 million people.
The Republican coalition challenging the ACA claim that Congress secretly sabotaged the law by zeroing out the penalty for those who lack health insurance in 2017.

It is a fatuous, bad-faith argument, and the lawyers who took it to SCOTUS should be ashamed of themselves.
The theory that Congress somehow destroyed the entire ACA when it *removed the penalty for uninsured people* is, in legal terms, unadulterated horse shit. But a notoriously partisan federal judge endorsed it, and the 5th Circuit refused to say he was wrong. That’s why we’re here.
Read 4 tweets
Mark Joseph Stern Profile picture
10 Nov
Republicans are helping Trump create a harrowing atmosphere of very real, deep fear that he might stage a coup. I feel it, too. But there is no substance behind his theatrics. There are no remotely plausible scenarios in which he will prevail. He will leave office on Jan. 20.
I am intensely pessimistic about everything related to Trump. But none of his lawsuits stand a chance of overturning the outcome of this election. Yes, even with THIS Supreme Court. Trump’s delegitimization of the election may have horrific consequences. But he will leave office.
And to be clear, I absolutely believe there were scenarios in which Trump could steal the election. I wrote about them! But we are not in one. We aren’t even close. The recent actions of Trump and the GOP are truly odious—banana republic stuff. But they won’t work. He will leave.
Read 4 tweets
Mark Joseph Stern Profile picture
9 Nov
They can't actually point to anything the Georgia secretary of state did wrong. They're just mad Biden won and don't want to face a free and fair election in January.
I suspect Loeffler and Perdue are trying to pressure Georgia's Republican secretary of state into imposing new voting restrictions for the January runoffs. It's the usual playbook: When GOP candidates can't win fairly, they change the rules to suppress more votes.
I really hope Loeffler and Perdue don't succeed in taking out Raffensperger (Georgia's Republican secretary of state). That would send a clear message to other red state election administrators that if they don't suppress enough Democratic votes, they will lose their jobs.
Read 4 tweets

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