Good morning! The Supreme Court will issue opinion(s) at 10 a.m. In the meantime, you might be interested to read about how the conservative legal movement's opposition to nationwide injunctions seems to have evaporated upon Joe Biden's inauguration! slate.com/news-and-polit…
While bad-faith trolls may miss this point, what's fascinating is that conservative judges barely even bother to justify their nationwide injunctions. This judge, for instance, provided one sentence of conclusory reasoning after claiming to "disfavor" nationwide injunctions.
By performatively wringing their hands over nationwide injunctions—then issuing them anyway with the thinnest, most conclusory reasoning—conservative judges are trying to have it both ways: Get credit for questioning nationwide injunctions while handing them out willy-nilly.
The scope of an injunction falls under the discretion of the district court. If conservative judges genuinely opposed nationwide injunctions, they could absolutely craft a narrow remedy—no precedent *requires* them to enjoin a policy nationwide. It's optional; they do it anyway.
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BREAKING: The Supreme Court throws out the challenge to Obamacare, holding the plaintiffs all lack standing: supremecourt.gov/opinions/20pdf…
Breyer writes for the court, holding that the states and the individual plaintiffs lack standing. Only Alito and Gorsuch dissent. supremecourt.gov/opinions/20pdf…
Alito, joined by Gorsuch, would hold that (1) the individual mandate is now unconstitutional, and (2) large portions of the ACA must essentially fall with it, becoming "unenforceable" against the state plaintiffs here. supremecourt.gov/opinions/20pdf…
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.
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…
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.
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…
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.
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…