The way we talk about the Taney Court and Dred Scott and about the Lochner Court as illegitimate ideological hack partisans is how one day we all will talk about Shelby County and the Roberts Court.

Hell, let’s start now.
2/ “In Shelby, Roberts used erroneous data to make claims about rates of voter registration among blacks and whites in 6 southern states...
The data displayed registration gaps had shrunk dramatically.
But some of the numbers in his chart were wrong.”
propublica.org/article/suprem…
3/ BASIC RACE STATS ERROR:

“Roberts used numbers that counted Hispanics as white, including many Hispanics who weren’t U.S. citizens and could not register to vote, which had the effect of inaccurately lowering the rate for white registration.”

He mixed Latino in with white!
4/ @propublica:
Most Hispanics are counted as “white alone” under race. Which is why the Census Bureau provides separate numbers for the category “white non-Hispanic alone,” usually right next to the “white alone” figures...
5/
“To those familiar with Census Bureau data, the difference is well understood. Researchers convert the Hispanic-origin ethnicity into its own racial group when analyzing disparities.

***Roberts’ chart, however, did not use generally accepted definitions of race.***”
6/ I’m sorry, this error does not happen because of a good-faith mistake on stats and good-faith curiosity about race in America.
Any lawyer genuinely concerned about race and familiar with race stats knows about this basic coding issue on “white” and “non-Hispanic white.”
7/ In the last century, SCOTUS’s worst rulings were:
1) Buck v Bell
2) Korematsu
3) McCleskey
4) Bowers
5) Shelby County
6) Husted
7) Free Enterprise/Seila nonsense
(Sorry, Kelo, Citizens United & Bush v Gore don’t make my list)

That’s a lot of Roberts Court & 3 JGR opinions.
8/ I can’t believe I forgot this Roberts whopper in 2007:
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Parents Involved
Now pair that line with Roberts’s racial ignorance & stats ignorance in Shelby.

H/t @dom_dont_tweet

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More from @jedshug

24 Mar
This is more Palingenesis/Parthenogensis than Palindrome.
Or more like a Michael Palin-drome.
Not a Sarah Palin-drone.
I am more proud of this six-word tweet than some of my sixty-page law review articles.
Read 4 tweets
11 Mar
Am I really annotating Seila Law as I prepare to teach it next Monday?
And am I going to run out of room in the margins?
Yes I am.
cc. @jdmortenson @BlakeProf @LeahLitman @petermshane @vicnourse
Annotated Seila Law, p. 2.
cc: @Jane_C_Manners @LevMenand @andrewkent33
Annotated Seila Law, p. 3
(for p. 2: Did I really ask where in Article III is the "Duty to Micromanage" clause (a.k.a. The Dwight from the Office Clause)?
Yes I did.
Cf. Peter Strauss, "Overseer or Decider?"
Read 5 tweets
25 Feb
“Vesting”: Text, Context, Dictionaries, and Unitary Problems
The Executive Vesting Clause is a pillar for the unitary theory of exclusive, indefeasible presidential power.
The word "vest" did not mean what they think it means.

Article posted on SSRN:
papers.ssrn.com/sol3/papers.cf…
Abstract and table of contents here.
Below: Chart of dictionaries 1640 to 1846.

Special thanks to @jdmortenson @BlakeProf @Jane_C_Manners @LevMenand @petermshane @GillianMetzger2 @_John_Mikhail @MFlaherty17 @andrewkent33
Charts of dictionaries:
7 categories, from less to more support for unitary indefeasibility, L to R.
Last column relates to absolute power.
2d from the right relates to offices/official powers
Most relate to individual property rights and simple possession of real estate:
Read 6 tweets
13 Feb
Before people get upset about not calling witnesses:
I think Democrats understand the chances have increased significantly over the past 24 hours of Trump being criminally prosecuted for Jan. 6 (with witnesses, a real judge, and full legal process).
Plus the Georgia call.
I think the House managers have done a great job. The problem is the Senate “judge and jury,” and as we’ve seen, the GOP Senators are only interested in obstruction and partisan spin.
Let prosecutors investigate and then - in a real courtroom - get a clean shot at questions.
I had said earlier and often that Trump would not face prosecution: the speeches themselves were *not* criminal incitement.
But now: new questions of contacts before and during the insurrection arose. I think a criminal investigation is now likely, and an indictment is plausible.
Read 8 tweets
11 Feb
My originalism hypocrisy argument in @politico:

"The Senate GOP used Trump to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, they effectively voted 44 to 6 to disqualify originalism itself."
politico.com/news/magazine/…
2/ "Along with Trump, originalism was on trial this week in the Senate. The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law...
3/ "but a framework that depends upon historical context to find meaning and purpose... Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican Senators this week ignored the whole principle of originalism.
Read 4 tweets
9 Feb
I'm sure it is just a coincidence that, as far as I was counting, ALL of the members of Congress featured in Trump's defense video, villifying them for calling for impeachment in 2017-18...

were women, people of color, or Jews.
Fact-check: True.
Shame on David Schoen for selling us out.
No accident, brown & women's faces were shown for the longest time.

Here are the targets of Trump's video:
@AOC @ewarren @RepRaskin @RepCohen @RepMaxineWaters @algreen @JulianCastro @IlhanMN @RepRashida @keithellison
Some of the white non-Jewish male members who called for impeachment in 2017-18 who coincidentally aren't featured in the video:
@RepSwalwell @BetoORourke @davidcicilline

How about this: If you are a lawyer defending a racist president for inciting insurrection, don't do this.
Read 4 tweets

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