1. I re-read Dred Scott in light of that New Yorker article people are tweeting about and was struck again by how--in addition to being horrifyingly racist--the methodology of the opinion is a perfect illustration of bad "original anticipated applications" originalism.
2. The opinion acknowledges that the plain text of the Constitution (and Declaration of Independence) is obviously broad enough to include black people as citizens, but says that the people at the time were so racist that's not what they could have intended.
3. Now--without equating the two things substantively--compare the bad methodology of Dred Scott to the debate in Bostock between Gorsuch and the dissents about who is the better originalist.
As Gorsuch says: "One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group."

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More from @JoshABlock

6 Jun
This term at SCOTUS, ACLU argued most important student speech case in a generation, filed an amicus brief in support of an ADF student speaker, and filed a brief supporting a conservative org’s challenge to law requiring disclosure of donors.
And what evidence does the article give for change in ACLU’s actual positions on free speech?
- an internal debate about whether ACLU should bring cases on behalf of Nazis or instead file supportive amicus briefs
- a quickly withdrawn tweet about proposed sexual assault regs that fails to mention ACLU’s actual comments split from most progressive orgs and demanded right to cross examination
- endorsement of candidates (which is a different criticism that a 1A one)
Read 6 tweets
19 Nov 20
Listening to a CA6 judge (Kethledge or Thapar) asking a hypo comparing (a) requiring professors to refer to trans students in class by proper pronoun and (b) requiring a Jewish professor to refer to student as "mein fuhrer"
I think this oral argument from the attorney representing Shawnee State University may be the worst oral argument I have ever heard.
What a train wreck. I did not think it was possible for someone to do more harm to their case.
Read 7 tweets
4 Nov 20
Getting ready for oral arguments in Fulton v. City of Philadelphia. You can listen here.
What's Fulton v City of Philadelphia about? It's not about private adoption, or about the right of birth parents to have their child adopted within the faith. It's not about providing foster care group homes or other support services for kids in need.
Catholic Social Services receives millions of dollars in contracts from Philadelphia to provide a wide array of foster care services, and CSS will continue to receive those funds regardless of how this case is decided. This case is just about one specific set of contracts.
Read 80 tweets
10 Dec 19
The memo isn’t actually “dense and legalistic” at all; the reporters just don’t understand the subject matter.

She is saying that bankruptcy is designed to provide a process for equitably balancing different creditors’ claims, including consumer creditors, employers, and tort victims. If you let some creditors revive stake claims after reorganization you screw over all the other creditors
Also the article misleadingly says she was helping a company “avoid paying for cleaning up a toxic site” which makes it sound like she was helping it pollute. The toxic site was being cleaned up by a different company and the Q was whether that company had to be indemnified.
Read 4 tweets
17 Aug 19
Your DOJ just filed a brief with the Supreme Court saying it’s fine for employers to have dress codes prohibiting women from wearing pants.
Only thing I would add to this great explanation is that the employer literally has a rule prohibiting women from wearing pants. DOJ says it was ok to fire Stephens for wearing a skirt because employer would also have fired a cis woman for wearing pants.
DOJ could have tried to argue that sex stereotyping against trans people is somehow different that sex stereotyping against cis people. Instead, it argued no one can bring sex stereotyping claims if the stereotypes are "equally" applied to men and women.
Read 4 tweets
7 Aug 19
1. I think the disagreement about posting info about Trump's donors turns on a distinction between (a) using donor info to hold elected officials accountable and (b) using donor info to hold donors accountable.
2. NYT and other newspapers often write stories based on donor info to say that politician X is beholden to the interests of big donor Y. But they are not used to donor info being used to say that donor Y should be criticized for their support of politician X.
3. What did Scalia think about this? "There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance...."
Read 8 tweets

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