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31 Aug, 8 tweets, 2 min read
Update in this one. Texas has filed its response in opposition --> supremecourt.gov/DocketPDF/21/2…

And the private defendant has filed his opposition too --> supremecourt.gov/DocketPDF/21/2…

Now we wait for SCOTUS (or, I suppose, the 5th Cir.) to act.
(I don't think it's very likely that the 5th Cir. will save SCOTUS from having to act, but it is, technically, a possibility.)
Still waiting on potential SCOTUS action on the Texas fetal heartbeat law.

The law goes into effect at midnight, Central Time.
No action by SCOTUS on the emergency app (or from the 5th Cir.). Texas' fetal heartbeat law goes into effect. Essentially bans abortions after six weeks.
Oh wow, deleting my last. A state court has issued a temporary restraining order.

kristv.com/news/local-new…
Anyway, it's conceivable we will still see SCOTUS act on the emergency application overnight.

On rare occasions, they have issued early-morning decisions on the day something is set to happen.
I'm not sure how much confidence I have in this news report about a state court TRO.

Definitely need more clarity about just what and who is being enjoined.
What I can say for sure is that SCOTUS hasn't acted yet, which is where the ultimate action on this law is going to be anyway.

And with that, I gotta get some sleep. We'll take this up again tomorrow.

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More from @gabrielmalor

Gabriel Malor Profile picture
2 Sep
SCOTUS will not block Texas SB8, the fetal heartbeat law.

Count is 5-4. The majority holds that the "complex and novel antecedent procedural questions" prevent plaintiffs from carrying their burden.
CJ Roberts writes a dissent. Breyer writes a dissent. Sotomayor writes a dissent. Kagan writes a dissent.
Here's the majority reasoning in full.
Read 27 tweets
Gabriel Malor Profile picture
1 Sep
This is an interesting read, but commentators are failing to grapple with just how unusual the present posture of this case is and how novel SB8 is as a legal instrument specifically designed to avoid pre-enforcement review.
In other words, I don't think SCOTUS is going to be silent or indifferent on the procedural issues here. I bet that's why it's taking so long.

And those procedural problems come *before* we even get to the question of just what this SCOTUS is going to do with Casey/June Medical.
Too much of the commentary is skipping to: is Roe going to be overturned (even though they mean Casey and June Medical).

When there's a whole mess of procedural issues to resolve before we get to the underlying abortion question.
Read 8 tweets
Gabriel Malor Profile picture
1 Sep
More chaos in the Oklahoma courts as the McGirt fallout continues.

To recap, last month the state's highest criminal court ruled that McGirt would not apply retroactively—that is, to cases decided before McGirt issued.
Yesterday, the high court vacated and withdrew four previous orders granting McGirt-based relief, citing its new holding that McGirt does not apply retroactively.

Here's what that looks like. Note, Oklahoma is presently seeking cert. from SCOTUS in Bosse. So that might be moot? Image
This all wraps around to whether state convictions that took place on Indian land that had never been disestablished under federal law were valid.

SCOTUS said no in McGirt. So the question then is whether McGirt applies retroactively.
Read 5 tweets
Gabriel Malor Profile picture
31 Aug
This one is going to come back to haunt.
This is one of those things that'll be true right up until the moment it's not, and worth nothing.

The relevant question will be, having departed Afghanistan, can we *keep terrorist groups on the ground there from acquiring the capacity to attack the United States at home?*
There is this little pesky matter of precedent for Afghanistan-based, Taliban-sponsored attacks, ya know.
Read 5 tweets
Gabriel Malor Profile picture
18 Aug
Oh wow. Fed. judge orders as a condition of bail that defendant must get the coronavirus vaccine.

"that, prior to her release, she receive at least the first coronavirus vaccine shot, to be followed by a second shot within the following month." law.com/newyorklawjour…
"[T]the Court's responsibility is to set conditions . . . that will prevent a danger to the community, in this case, an enhanced risk of infecting other, innocent people and even potentially causing their deaths."
Court notes broad authority to set conditions, reasons that if it can impose home confinement, GPS tracking, urine tests, drug patches, medical and psychiatric exams, it can "take the much more modest step of requiring vaccination as a condition of . . . being released on bail."
Read 7 tweets
Gabriel Malor Profile picture
17 Aug
Fed. judge holds that Hawaii's firearm laws that only allows folks to buy a handgun w/in 10 days of obtaining a permit, and then requires them to present the gun to police for inspection and registration w/in 5 days violates the Second Amendment. storage.courtlistener.com/recap/gov.usco…
The court applied the intermediate scrutiny standard, and asked Hawaii how a 10-day permit use period furthers public safety. Was not impressed by the answer Hawaii came up with: "common sense."
To come back to this, these two Hawaii restrictions on firearms are not common in other states, so there isn't a lot of similar case law.

What may draw further attention is the emphasis the court placed on whether "common sense" is sufficient to meet intermediate scrutiny.
Read 4 tweets

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