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… Image
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… Image
Alito is displeased. supremecourt.gov/opinions/20pdf… ImageImage
In its second opinion of the day, the Supreme Court throws out an Alien Tort Statute lawsuit against Nestle for alleged child slavery, but does NOT immunize corporations from ATS lawsuits in the future. Quite a breakdown. supremecourt.gov/opinions/20pdf… Image
Remarkably, both Gorsuch and Alito write separately to declare that corporations are NOT immune from suit under the Alien Tort Statute. That is unexpected.

The case in Nestle v. Doe: supremecourt.gov/opinions/20pdf…
Gorsuch and Alito, dissenters in the Obamacare case, come through in Nestle v. Doe with strong textualist and originalist arguments explaining why corporations CAN be sued under the Alien Tort Statute. supremecourt.gov/opinions/20pdf… ImageImageImageImage
There will be at least one more opinion from the Supreme Court today!
The third and FINAL decision of the day is in Fulton v. Philadelphia. SCOTUS holds that Philadelphia's refusal to contract with the anti-gay foster care agency violates the Free Exercise Clause. supremecourt.gov/opinions/20pdf…
The Supreme Court does NOT overturn Employment Division v. Smith, but instead holds that this case falls outside Smith because Philadelphia's nondiscrimination law is not neutral and generally applicable because it allows discretionary exceptions. supremecourt.gov/opinions/20pdf…
Incredibly, the judgment against Philadelphia in Fulton is unanimous—in a major coup, Chief Justice Roberts somehow persuaded the liberal justices to sign onto his opinion forcing the city to renew the agency's contract. supremecourt.gov/opinions/20pdf… Image
Alito, Thomas, Gorsuch would all overturn Employment Division v. Smith.

Barrett, Kavanaugh, and Breyer are interested in overturning Employment Division v. Smith, but are unsure what to replace it with. supremecourt.gov/opinions/20pdf…
Why did all three liberal justices side against Philadelphia in Fulton? Presumably because they viewed Chief Justice Roberts' approach as the least bad option. Roberts' opinion provides the narrowest grounds to rule against Philadelphia, which six justices were sure to do anyway.

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More from @mjs_DC

17 Jun
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. Image
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. Image
Read 4 tweets
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
14 Jun
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.
Read 10 tweets
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
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
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

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