#SCOTUS THREAD: Starting in 20 minutes, we are expecting one or more decisions. We don’t know which cases or how many. Twenty-two cases remain, however, including Obamacare, religious beliefs and gay rights, Voting Rights Act, NCAA, student speech rights, First Step Act, & more.
While you're waiting, you can read my latest, about next term's Puerto Rico SSI case:
Only one #SCOTUS opinion this morning, in Borden v. US. Kagan announces the judgment of the court, in which the defendant, Borden, wins in the ACCA case over whether recklessness criminal requirement qualifies as a violent felony. There is no majority opinion, however.
Gorsuch joined the more liberal justices in Kagan's opinion, and Thomas agreed with their judgment, but not Kagan's reasoning. supremecourt.gov/opinions/20pdf…
Don't worry, Kagan says, there will still be more ACCA cases.
It takes some work to get there, but this is really what it all comes down to, per Kagan (and Breyer, Sotomayor, and Gorsuch).
Kagan going after Kavanaugh's "term of art" argument here is ... well ... art.
The footnotes are always a good place to find where justices are most sharply divided, but this is some impressive calling-out from Kagan.
Skipping to Kavanaugh's dissent, which is troubling for all of the legal reasons pointed out by Kagan. But, there's also an element of incredible irresponsibility in Kavanaugh's opinion that is a perfect example of how we encourage overincarceration untethered to any evidence.
The entire framework of mens rea in criminal law would suggest the opposite of the conclusion Kavanaugh just throws on the page here w/ no evidence. People who recklessly committed a prior offense would, logically, be in a different category than those who intentionally did so.
There actually is a really good reason to think the two groups might have different re-offense statistics! And yet, to advance his dissent attempting to lump recklessness in with purpose and knowledge, Kavanaugh just writes out language that assumes the groups would be the same.
Anyway, Kavanaugh lost that one, and it's just a dissenting opinion. But it's nonetheless maddening that such fact-free, conclusory statements are just added into Supreme Court writings — even if they're dissents.
With that, we're left with 21 cases still outstanding. And though I see we're already starting the "will #SCOTUS go into July?" talk, I'd hold a bit on that. There are still basically 3 opinion weeks left in June. They'll need to ramp up the pace, and keep adding days, but.
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Breaking: Booksellers' challenge to Texas's book-ban regime succeeds at the Fifth Circuit.
Today, the full Fifth Circuit announced that the far-right judges of the court LOST a vote for rehearing en banc 8-9 after a 3-judge panel had previously upheld the dist ct's injunction.
There is highly questionable action from the Fifth Circuit this weekend, flagged to me by @steve_vladeck. On Saturday, the Fifth Circuit issued "a temporary administrative stay," allowing Texas S.B. 4 — the challenged Texas immigration law — to go into effect in 7 days.
Here's my thread on the preliminary injunction ruling from Feb. 29:
BREAKING: Fifth Circuit holds that fed'l emergency room protections (EMTALA) do not mandate that physicians provide abortions when that is the "stabilizing treatment" needed, upholding an injunction issued in a lawsuit brought by Texas. More to come: lawdork.com
For background on this issue (while I'm reading and writing), here's some a post relating to the still-pending SCOTUS stay application filed by Idaho in the inverse EMTALA litigation, where DOJ sued Idaho: lawdork.com/i/139439910/th…
BREAKING: Supreme Court will NOT hear case over Washington's conversion therapy ban, over the objection of Thomas, Alito, and Kavanaugh. Thomas and Alito write.
Supreme Court also DENIES RFK Jr.'s request to intervene at SCOTUS in Murphy v. Missouri, the case over Biden administration social media influence out of the Fifth Circuit. Thomas notes his dissent.
BREAKING: On a 2-1 vote, the 11th Circuit DENIES Florida’s request that it be allowed to enforce its anti-drag law against everyone in the state except the plaintiffs during the appeal.
Jordan and Rosenbaum, both Obama appointees, hold that the district court did not abuse its discretion in granting an injunction prohibiting all enforcement of the ban, given its underlying finding that the law is likely overbroad and this likely facially unconstitutional.
Brasher, a Trump appointee, dissents and would grant a partial stay, finding the injunction to be, itself, overly broad to achieving the goal of protecting the plaintiff’s rights.