What Clark's (insane) draft letter lays bare is what so many long suspected: This was never about *good* legal (or factual) arguments; it was about using patently meritless legal and factual contentions as a thinly veiled cover for overturning the result of a democratic election.
The legal arguments here are simply laughable. The factual claims had by then already been rebutted. And yet, a senior DOJ official (who may have been in line to be the Acting AG) was pushing both, for no other reason than to keep President Trump—who *lost* the election—in power.
You may say "there's nothing new here." But there is: It's evidence of just how far lawyers *inside* the administration were willing to go to effectuate a coup (yes, it would've been an "autogolpe," but you get the gist). That Clark's superiors shut this down is a relief, but...
...the fact that it even got this far drives home (1) just how close we were to things being even worse; and (2) just how much it was people *inside* the administration, and not just outside, who were trying to prevent the peaceful transition of power from actually taking place.
The draft is dated 12/28.

That's 14 days after the Electoral College voted (and voted for Biden); 17 days after #SCOTUS turned away Texas's stunt lawsuit; and 20 days after the safe harbor deadline for certifying competing slates of electors.

There was no law left; just power.

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More from @steve_vladeck

13 Jul
1/4: This is a deeply misleading summary of a @nytimes graphic that is *itself* misleading. The graphic claims as the denominator "non-unanimous decisions" in which all three D appointees were in the majority—and looks at how often each conservative joined them.

Three problems:
2/4: First, if the claim is about how *often* conservatives joined the three D appointees, why focus only on *majority* opinions? Thomas joined them in two of the most important cases of the Term (TransUnion & Arthex), but in dissent. Shouldn't those count in any such assessment?
3/4: Second, if the claim is about non-unanimous decisions writ large, we should also be talking about the shadow docket. There were major election and COVID cases in which the three D appointees were joined by some of the conservatives, including when they were in the majority.
Read 5 tweets
7 Jul
The October 2020 #SCOTUS Term doesn't officially end until Monday, October 4.

But despite what some stories will tell you, there have been a total of *33* rulings from the Court thus far from which the three Justices appointed by Democratic Presidents have publicly dissented:
12 of these were in cases we all pay attention to, because they were argued (or were companions to argued cases), and were resolved through formal opinions for the Court. But 21 were with respect to "shadow docket" orders, some of which have just as much impact as merits rulings.
And although the Court is done hearing argued cases for this Term, there's still three months left for additional shadow docket activity. Last summer, for instance, there were *five* separate shadow docket rulings from which all (four) of the Democratic appointees dissented.
Read 5 tweets
6 Jul
Once again, not including the shadow docket in #SCOTUS data yields a very different statistical snapshot.

There were *18* shadow docket orders this Term from which *only* the three Democratic appointees publicly dissented. Three more were 5-4 with the Chief Justice joining them.
To be sure, it's 18 out of a larger denominator. But four of the 18 were dissents not just from orders, but from published opinions of the Court.

At the very least, it seems to me that we ought to be including *those* in any broader assessment of the voting lineups across cases.
I don't mean to pick on the fantastic @KimberlyRobinsn. Focusing on argued cases is something that the entire #SCOTUS press corps (and, indeed, the *Court*) does in its data. But the last few years have driven home why that's just not a sufficient picture of the Court's docket.
Read 4 tweets
29 Jun
Writing a piece for @MSNBCDaily on @govkristinoem’s bizarre plan to send privately funded SD National Guard troops to the TX border. Short version: It’s probably legal, but (1) it shouldn’t be (we already have a law for interstate Guard sharing); and (2) it’s a (troubling) stunt.
To the first, the Emergency Management Assistance Compact (EMAC)—to which both SD and TX are parties—specifically contemplates circumstances in which a state could use help from other states’ Nat’l Guard units. That this is privately funded seems to make clear that it ain’t EMAC.
To the second, I wrote last summer about a dangerous precedent of having what are effectively red state armies and blue state armies, even when it’s the federal government requesting assistance.


To me, this is a further step down that slippery slope.
Read 4 tweets
21 Jun
A short #thread on why #SCOTUS's Arthrex ruling is a big deal:

A lot of adjudication happens in the Executive Branch. Social Security benefits; immigration claims; patent appeals; etc. And "judges" ("administrative law judges") are usually involved in *resolving* those disputes.
No one thinks these judges are the same as Article III judges (with life tenure and salary protection). But should they be *totally* beholden to their political masters, or should there be at least some modicum of independence insulating their rulings from political interference?
Congress has tried for the latter approach, creating detailed procedures to govern the hiring and firing of administrative law judges — and delineating specific circumstances in which their rulings can be overturned by the Executive Branch (as opposed to by an Article III court).
Read 7 tweets
16 Jun
With 17 #SCOTUS decisions in argued cases left, a brief statistical note on the impact of Justice Barrett versus Justice Ginsburg:

So far, there hasn't been a *single* argued case in which Justice Barrett has been part of a 5-4 majority (where the difference could've mattered).
On the "shadow docket," in contrast, there've been at least three rulings where she was in a (publicly) 5-4 majority; one where she was part of a 6-3 majority to summarily reverse (which usually needs six votes); & several where she *might* have been the fifth vote (e.g., Smith).
Two of the three 5-4 rulings (Roman Catholic Diocese & Tandon) are easily among the Court's most significant decisions of the Term thus far.

At least to this point, then, Justice Barrett's impact has been far more publicly visible on the shadow docket than on the merits docket.
Read 5 tweets

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