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14 Jun, 10 tweets, 4 min read
The Supreme Court's FIRST decision of the day is in Greer v. United States. Opinion by Kavanaugh.

There will be more decisions! supremecourt.gov/opinions/20pdf… Image
Greer v. U.S. is an 8–1 decision with Sotomayor dissenting in part.👇

Style nerds will note that Kavanaugh does not divide his opinion into sections, as is customary, but simply writes it like a long essay, presumably because it's short (11 pages). supremecourt.gov/opinions/20pdf… ImageImage
Because Kavanaugh went first this morning, the next opinion(s) could come from any justice except Barrett, as they're issued in order of reverse seniority.
The second and FINAL opinion of the day is in Terry v. U.S., the First Step Act case. No blockbusters* today!
supremecourt.gov/opinions/20pdf…
*every case is a blockbuster to someone
In a mostly unanimous opinion by Thomas, the Supreme Court holds that certain crack offenders who did not trigger a mandatory minimum sentence don't qualify for a sentence reduction under the First Step Act.
supremecourt.gov/opinions/20pdf… Image
Sotomayor drops a long footnote criticizing Thomas' "unnecessary, incomplete, and sanitized history of the 100-to-1 ratio" for crack vs. cocaine, noting that he does not mention the "extensive record of race-based myths about crack cocaine."
supremecourt.gov/opinions/20pdf… ImageImage
Sotomayor: "There is ... an extensive record of race-based myths about crack cocaine that the media 'branded onto the public mind and the minds of legislators,' and that appear in the Congressional Record ... The Court barely references the ratio’s real-world impact."
Sotomayor agrees with Thomas' bottom-line textual analysis and urges Congress to fix this loophole in the First Step Act, which its congressional sponsors did not intend to create. supremecourt.gov/opinions/20pdf… Image
Terry resembles Bostock in the sense that Congress probably didn't intend this result when it passed the law at issue. But the Supreme Court unanimously followed the text instead of congressional intent. The difference is that this time, Alito, Thomas, and Kavanaugh didn't balk.
Shorter Alito/Thomas/Kavanaugh Image

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More from @mjs_DC

Mark Joseph Stern Profile picture
14 Jun
Sorry to repeat myself, but I am truly baffled by the seemingly widespread belief that a Republican-controlled Senate will ever again confirm a Democratic president's Supreme Court nominee. It's just not going to happen. Not in your lifetime, not in mine, not in anyone's.
Taking this a step further, I'm not convinced a Republican-controlled Senate will ever confirm another Democratic president's appeals court nominees, either. *Maybe* a tiny handful, but as a rule, Republicans will hold those seats open. They've all but admitted as much!
Democrats should assume that if Republicans win the Senate in 2022, they will refuse to confirm any of Biden's nominees to the courts of appeals or the Supreme Court. It'll be like the 2015-2016 blockade—but worse, because of what Republicans have gotten away with in the interim.
Read 4 tweets
Mark Joseph Stern Profile picture
10 Jun
A lot of media coverage about the Justice Department's defense of Title IX's religious exemption is misleading and confused. It has fomented a great deal of anger among progressives that is deeply misplaced. This is not the story you might think it is. slate.com/news-and-polit…
Title IX's religious exemption has existed since Title IX was passed in 1972. The Department of Justice has a duty to defend it. A Christian organization is trying to seize that duty from the DOJ, which would be very bad. DOJ is right to insist on defending the law itself.
The Council for Christian Colleges and Universities wants to take over the defense of Title IX's exemption so it can present extreme arguments in favor of sweeping religious exemptions from civil rights laws. Again: The DOJ is right to resist that effort. slate.com/news-and-polit…
Read 5 tweets
Mark Joseph Stern Profile picture
10 Jun
Kagan continues to ruthlessly own Kavanaugh—here she mocks him for complaining "how unfair it is" that his "view has not prevailed here." supremecourt.gov/opinions/20pdf…
Kagan: Kavanaugh merely reprises the government's "flawed argument," "if at a higher volume," "putting the rabbit in the hat" by "inserting the word that will (presto!) produce [his] reading."
supremecourt.gov/opinions/20pdf…
The "presto!" is Kagan's addition, not mine—part of her extended metaphor framing Kavanaugh as an amateur magician who inadvertently reveals his trick to the audience before performing it.
Read 9 tweets
Mark Joseph Stern Profile picture
10 Jun
The first and ONLY Supreme Court decision today is in Borden v. U.S., an ACCA case. No blockbusters! supremecourt.gov/opinions/20pdf…
By a 5–4 vote, the Supreme Court holds that a criminal offense with a mens rea of recklessness does NOT qualify as a “violent felony” under ACCA’s elements clause.

Plurality: Kagan, joined by Breyer, Sotomayor, & Gorsuch.

Thomas concurs in the judgment.

The rest dissent.
We have never before had a 5–4 decision with Kagan, Breyer, Sotomayor, Gorsuch, and Thomas casting the five votes for the judgment.

Thomas begrudgingly concurs but reminds us that he wants to overrule Johnson v. U.S. (one of Scalia's best decisions!). supremecourt.gov/opinions/20pdf…
Read 5 tweets
Mark Joseph Stern Profile picture
7 Jun
It bears repeating that Judge Benitez's ruling against California's assault weapon ban promotes the anti-vax lie that COVID vaccines are killing many people—while falsely trivializing mass shootings with an AR-15 as "infinitesimally rare." d3n8a8pro7vhmx.cloudfront.net/firearmspolicy…
The portion of Benitez's opinion blithely trivializing the unique trauma of gunshot wounds from assault weapons is particularly nauseating.
nymag.com/intelligencer/…
Note, too, Benitez's contradictory conclusion: Mass shootings with assault weapons are "infinitesimally rare" in California, yet California's assault weapons ban is a "failed experiment which does not achieve its objectives of preventing mass shootings." d3n8a8pro7vhmx.cloudfront.net/firearmspolicy…
Read 8 tweets
Mark Joseph Stern Profile picture
7 Jun
The first and ONLY Supreme Court opinion today is in Sanchez v. Mayorkas, a unanimous decision by Kagan holding that a TPS recipient who entered the U.S. unlawfully is not eligible under §1255 for LPR status merely because he has TPS. supremecourt.gov/opinions/20pdf…
No blockbusters* from the Supreme Court today. Next SCOTUS opinion day is Thursday (my birthday!).

*with the caveat that every case is a blockbuster to someone!
You all better be ready to wish me happy birthday while we wait for doom on Thursday.
Read 5 tweets

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