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Mark Joseph Stern Profile picture
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4 Mar, 9 tweets, 4 min read
Good morning! The Supreme Court will issue opinion(s) today at 10 a.m. As usual, we do not know what we'll get, so buckle up!
First opinion of the day is also Justice Amy Coney Barrett's first signed opinion of the court. It is a 7–2 decision limiting the reach of the Freedom of Information Act. Breyer and Sotomayor dissent. supremecourt.gov/opinions/20pdf… Image
By tradition, a new justice's first opinion is usually a unanimous one. But Barrett's first opinion draws a sharp dissent from Breyer, who closes not with the traditional "I respectfully dissent" but rather "I dissent." Might not seem like much but it signals strong disagreement.
The scope of Barrett's decision might seem limited since the case deals with draft "biological opinions" regarding endangered species, but in a footnote, she expands the holding to "other draft documents," too. Not a great day for FOIA!
supremecourt.gov/opinions/20pdf… Image
SCOTUS will issue at least one more opinion today. The next one will appear here at 10:10 a.m. supremecourt.gov/opinions/slipo…
The second and final opinion of the day is a 5–3 decision by Gorsuch holding that unauthorized immigrants seeking to avoid deportation bear the burden of proving they were not convicted of a “crime involving moral turpitude.” All three liberals dissent. supremecourt.gov/opinions/20pdf… Image
Barrett did not participate in this case because she had not yet joined the court, hence the 5–3 split.
For those who want to scrutinize every square inch of the tea leaves here: This time around, Breyer closes with the more traditional "with respect, I dissent." Still, he definitely thinks Gorsuch got it totally wrong. supremecourt.gov/opinions/20pdf… ImageImage
Addendum! Some commentators have asserted that my characterization of Breyer's FOIA dissent as "sharp" does not merely miss the mark, but constitutes a factual error that requires correction. I do not agree, but I am going to urge you to read the opinion and decide for yourself. Image

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More from @mjs_DC

Mark Joseph Stern Profile picture
6 Mar
lol I guess I touched a nerve Image
This reminded me of my last DM to Ed, which he never responded to🤔 Image
Folks, there’s a lesson here: Don’t DM people to call them nasty names. It makes you look like a thin-skinned bully 100% of the time.
Read 4 tweets
Mark Joseph Stern Profile picture
5 Mar
I'm not sure I'll ever get used to conservative proponents of the unitary executive theory defending agency independence and complaining about presidential termination of executive officials who wield executive powers. I thought these guys didn't believe in independent agencies! Image
Anyway, the EEOC is not an independent agency, though that's a common misconception. Neither its general counsel nor its commissioners are shielded by for-cause termination under any statute. Gustafson does not have a leg to stand on; this is all political posturing.
One could argue that the EEOC is "independent" in the sense that it is not under the direct control of the president, but that is because of tradition, not law. No statute bars the president from removing its general counsel or commissioners, for any reason. So this is silly.
Read 4 tweets
Mark Joseph Stern Profile picture
5 Mar
!!! Justice Breyer has revised this opinion to insert the words "with respect" before "I dissent." supremecourt.gov/opinions/20pdf… Image
It is impossible to draw any other conclusion.
BRB combing through all the anonymous accounts who criticized me for noting the lack of "with respect" to figure out which one is Breyer
Read 4 tweets
Mark Joseph Stern Profile picture
2 Mar
The Supreme Court is hearing arguments in a case this morning that could effectively doom what remains of the Voting Rights Act. Listen here: c-span.org/video/?507934-…

Background here: slate.com/news-and-polit…
Justice Kagan: If a state cancels Sunday early voting, and Black people vote on Sunday ten times more than white voters, is that legal under the Voting Rights Act?

Michael Carvin, representing the RNC: Yes.
Justice Kagan: If a state allows only Election Day voting, and only opens the polls between 9-5, and voters of one race are ten times more likely to work a job that prevents them from voting during that time, is that legal under the Voting Rights Act?

RNC’s Carvin: Yes.
Read 4 tweets
Mark Joseph Stern Profile picture
1 Mar
Biggest news from today's Supreme Court orders: The court will hear a challenge to the federal government's denial of Supplemental Security Income—a benefit available in all 50 states—to residents of Puerto Rico. A big territorial rights case. supremecourt.gov/orders/courtor…
SCOTUS also took up a case I am not following, Babcock v. Saul, but here's the question presented. scotusblog.com/case-files/cas…
The Supreme Court once again took no action on Mississippi's 15-week abortion ban. It's really hard to read the tea leaves here. Maybe the court refused to hear the case and a justice (Thomas) is writing a dissent from denial of cert. Maybe they're just punting a decision.
Read 6 tweets
Mark Joseph Stern Profile picture
25 Feb
During the RFRA battles in Arizona and Indiana, conservatives claimed RFRA would not legalize discrimination against LGBTQ people. Today, conservatives oppose language in the Equality Act clarifying that RFRA cannot be used to justify anti-LGBTQ discrimination. I am confused.
If RFRA does not legalize discrimination against LGBTQ people, then conservatives should not be bothered that the Equality Act forbids the use of RFRA to justify anti-LGBTQ discrimination. If RFRA does legalize discrimination against LGBTQ people, its proponents were lying.
Progressives opposed RFRA bills in Arizona and Indiana on the grounds that they would legalize anti-LGBTQ discrimination. Conservatives accused progressives of misrepresenting the bills. Now conservatives seem to have admitted that RFRA does, in fact, legalize discrimination.
Read 4 tweets

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