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12 Feb, 4 tweets, 3 min read
Late last night, BARRETT joined Kagan, Breyer, and Sotomayor in blocking Willie Smith’s execution on religious freedom grounds, holding that the state may not deny Smith’s request to bring his pastor into the execution chamber. supremecourt.gov/opinions/20pdf…
There is, however, a mystery here. Barrett, Kagan, Sotomayor, and Breyer voted to block the execution. Thomas voted to allow the execution. So did Kavanaugh and Roberts (dissent below). Who cast the fifth core to block it? We literally do not know. supremecourt.gov/opinions/20pdf…
Although I'm confident that anyone acting in good faith understand this, my intent was to point out that justices are not required to note their votes in "shadow docket" decisions like this one, not to launch a conspiracy that Banquo's ghost cast the fifth vote.
I am surprised that either Gorsuch or Alito (or both) voted to block the execution, because Alito previously expressed skepticism toward this kind of RLUIPA claim in an opinion that Gorsuch joined. supremecourt.gov/opinions/18pdf…

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Mark Joseph Stern Profile picture
6 Feb
Kagan's dissent last night may be the most scathing of her career. She accused her conservative colleagues of "armchair epidemiology" that may well exacerbate the pandemic and cost human lives. A justice does not level that charge lightly.
slate.com/news-and-polit… @Slate
Equally important:

•The conservatives ignored the heightened standard for emergency relief and issued a merits opinion late on Friday.

•They also radically altered free exercise doctrine, turbocharging exemptions on the basis of "religious liberty."
slate.com/news-and-polit…
Employment Division v. Smith is effectively dead. The five ultraconservative justices have established a new rule that if a law exempts ANY secular business or activity, it MUST exempt churches and religious exercise. This has huge ramifications for claims of "religious liberty."
Read 4 tweets
Mark Joseph Stern Profile picture
6 Feb
Kagan:

"I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors."
Kagan, joined by Sotomayor and Breyer, dissented from the Supreme Court's order tonight lifting COVID restrictions on California churches. It is an extraordinary opinion.

"The Court injects uncertainty into an area where uncertainty has human costs."

supremecourt.gov/opinions/20pdf…
Gorsuch comes out with another "I know more about COVID than public health officials" opinion, this time castigating California for letting "Hollywood" hold singing competitions while banning indoor church services. Also, COVID restrictions are a tyrannical partisan fraud.
Read 13 tweets
Mark Joseph Stern Profile picture
5 Feb
Alaska Gov. Mike Dunleavy (R) appointed Kevin Clarkson (R) as state attorney general. Clarkson resigned due to a sexual misconduct scandal. Dunleavy appointed Ed Sniffen (R) to replace him.

Now Sniffen has resigned due to ... a sexual misconduct scandal. nytimes.com/2021/02/04/us/…
AG Clarkson (R) resigned after sending 558 text messages to a female state employee over 27 days. Many were romantic and sexual. Clarkson is married.

AG Sniffen (R) resigned because he had sex with a 17-year-old student on the mock trial team he coached. nytimes.com/2021/02/04/us/…
Let's review:

•18 Republican state attorneys general asked SCOTUS to overturn the election.
•A Republican state AG group helped organize Trump's Jan. 6 rally.
•Two consecutive Alaska AGs, both Republicans, have resigned within less than six months for sexual misconduct.
Read 4 tweets
Mark Joseph Stern Profile picture
4 Feb
!!! Biden fired four of Trump’s awful appointees to @acusgov, an obscure but important agency with a lot of influence over the federal regulatory process. One of them, Roger Severino—Trump’s anti-LGBTQ warrior at HHS—is suing.

Complaint:
assets.documentcloud.org/documents/2047… h/t @ZoeTillman
These are the four people Biden kicked out of @acusgov. They’re all conservative activists, though Severino is the most notorious. He took radical steps to legalize anti-LGBTQ discrimination in health care at HHS, though the courts blocked his signature anti-LGBTQ rule.
Another Trump-appointed council member whom Biden fired from ACUS, Andrew Kloster, infamously tweeted that Asia Argento is “literally trying to suck the life force from men,” condemning her as the “classic satanic ideal.” (Of course Trump put him in the government.)
Read 9 tweets
Mark Joseph Stern Profile picture
3 Feb
Our new median justice, Brett Kavanaugh, casts the fifth vote with Roberts and the liberals in a 5–4 decision about the Railroad Retirement Act of 1974. First time we've seen this split. supremecourt.gov/opinions/20pdf…
Barrett joins the Supreme Court's hard-core conservatives in her first 5–4 split, siding with Thomas, Alito, and Gorsuch to say that the Railroad Retirement Board's refusal to reopen the prior denial of benefits is NOT subject to judicial review. supremecourt.gov/opinions/20pdf…
But Sotomayor—joined by Roberts, Kavanaugh, Breyer, and Kagan—won this round, holding that the Railroad Retirement Board's refusal to reopen the prior denial of benefits IS subject to judicial review. Let's chalk this up to a liberal victory; there won't be many more, maybe ever!
Read 6 tweets
Mark Joseph Stern Profile picture
2 Feb
This is disappointing. Anderson’s predecessor at @EPPCdc, Ed Whelan, shot down conspiracy theorists who spread the big lie that Biden stole the election through mass fraud.

Anderson now elevates one of the loudest promoters of the big lie, Joy Pullmann. Deeply irresponsible.
In his first week on the job, the new president of @EPPCdc, Ryan Anderson, promoted a conspiracy theorist who urged Trump to “make war on all fronts possible” against Biden’s effort to claim the presidency.

Trump did “make war.” It led to an insurrection that cost lives.
Yes, this is where we are. Ed Whelan, who defamed an innocent man by falsely accusing him of sexually assaulting Christine Blasey Ford—on the basis of Zillow floor plans—is a voice of reason in comparison to his successor at @EPPCdc, Ryan Anderson.
Read 5 tweets

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