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Mark Joseph Stern Profile picture
@mjs_DC
Nov 30, 2021 • 6 tweets • 4 min read • Read on X
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This dissent from Judge Lawrence VanDyke, a Trump nominee, is pretty shocking. In addition to repeatedly dismissing the threat of mass shootings, he accuses his colleagues of failing to empathize with gun-owners because they're protected by U.S. marshals. cdn.ca9.uscourts.gov/datastore/opin… Image
VanDyke's dismissive reference to security for his colleagues' " upper-middleclass home[s]" is especially startling in light of the attack on Judge Esther Salas just last year. Her husband and son were shot to death—due, in part, to lack of security. npr.org/2020/11/20/936…
VanDyke also mocks Judge Andrew Hurwitz for pointing out that a fellow judge was killed in a mass shooting, writing that Hurwitz's "personal anecdotes" and "exaggeration of risks" demonstrates that he cannot analyze the Second Amendment in an "objective and detached manner." Image
VanDyke accuses his more liberal colleagues of judging in bad faith, writing: "The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution." The civility really shines through ... cdn.ca9.uscourts.gov/datastore/opin… Image
VanDyke says his colleagues are willing to accept deaths from traffic violence because they like and use cars, but aren't willing to accept deaths from mass shootings because they don't like or use guns. cdn.ca9.uscourts.gov/datastore/opin… ImageImage
As @petersagal points out, Judge Hurwitz's response is very powerful—much more thoughtful and eloquent than VanDyke's polemic—and worth reading in full. cdn.ca9.uscourts.gov/datastore/opin… Image

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More from @mjs_DC

Mark Joseph Stern Profile picture
Jun 13
The Supreme Court's third AND FINAL decision is Starbucks v. NLRB. Justice Thomas' opinion for the court is an 8–1 defeat for labor that will make it harder to halt allegedly unfair labor practices. Only KBJ dissents. supremecourt.gov/opinions/23pdf…
Justice Jackson accuses the majority of blessing an "aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts," a persistent theme of her jurisprudence so far. supremecourt.gov/opinions/23pdf…
A petition for §10(j) relief serves a straightforward, but significant purpose: “to preserve the NLRB’s remedial power while the Board resolves an unfair labor practice charge.” Miller, 19 F. 3d, at 452. Today, the majority casts a district court’s decision regarding a §10(j) request as one that invokes the full sweep of a court’s traditional equitable discretion—without regard for the Board’s authority or the statutory scheme that authorizes courts to issue such interim relief in the first place. In doing so, “the Court unnecessarily and casually substitutes the chancellor’s clumsy foot fo...
As KBJ notes in her dissent, this decision is similar to last term's unfortunate ruling in Glacier Northwest—it significantly weakens the NLRB's authority at the expense of labor, undermining unions' ability to combat unlawful abuse from management. supremecourt.gov/opinions/23pdf…
Read 4 tweets
Mark Joseph Stern Profile picture
Jun 13
The Supreme Court's first decision of the day is FDA v. AHM! Justice Kavanaugh unanimously holds that the anti-abortion plaintiffs in this case lack standing to challenge the FDA's regulations allowing access to mifepristone for medication abortion. supremecourt.gov/opinions/23pdf…
JUSTICE KAVANAUGH delivered the opinion of the Court. In 2016 and 2021, the Food and Drug Administration relaxed its regulatory requirements for mifepristone, an abortion drug. Those changes made it easier for doctors to prescribe and pregnant women to obtain mifepristone. Several pro-life doctors and associations sued FDA, arguing that FDA’s actions violated the Administrative Procedure Act. But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for othe...
On first review, it looks like NO justices wrote separately to flag the Comstock Act as a potential nationwide ban on medication abortion, or perhaps all abortions. Surprising!

Justice Thomas writes separately to argue that "associational standing" is likely unconstitutional.
The upshot of today's Supreme Court decision is that mifepristone will stay legal and broadly accessible in states where it not banned. It will, however, remain illegal in states that have outlawed medication abortion, and is criminalized as a "controlled substance" in Louisiana.
Read 5 tweets
Mark Joseph Stern Profile picture
May 30
Two professors at @UTAustin, John Hatfield and @DanielBonevac, are suing for the right to penalize their students who miss class because they are obtaining an abortion out-of-state. media.aflegal.org/wp-content/upl…
Hatfield and @DanielBonevac say they "do not intend to accommodate student absences from class to obtain abortions—including illegal abortions and purely elective abortions that are not medically required." They want to penalize any student who misses class for this reason.
@DanielBonevac This case was filed with the federal court in Amarillo, Texas, where the plaintiffs have a 100% chance of drawing Judge Matthew Kacsmaryk, the Trump appointee who attempted to ban mifepristone.
Read 5 tweets
Mark Joseph Stern Profile picture
May 23
The Supreme Court's second decision is Alexander v. SC NAACP. By a 6–3 vote, the majority REVERSES a district court decision that had struck down a South Carolina congressional district as a racial gerrymander. Alito writes; all three liberals dissent. supremecourt.gov/opinions/23pdf…
In a solo concurrence, Clarence Thomas declares his belief that racial gerrymandering claims should be deemed non-justiciable political questions, permanently prohibiting federal courts from scrutinizing allegedly racist redistricting. supremecourt.gov/opinions/23pdf…
In my view, the Court has no power to decide these types of claims. Drawing political districts is a task for politicians, not federal judges. There are no judicially manageable standards for resolving claims about districting, and, regardless, the Constitution commits those issues exclusively to the political branches
In dissent, Justice Kagan writes that Alito has effectively transformed his earlier dissent in Cooper v. Harris into the law now, making it nearly impossible for federal courts to strike down racist gerrymanders. supremecourt.gov/opinions/23pdf…
To be fair, we have seen all this once before—except that it was in a dissent. Just seven years ago, this Court decided another racial-gerrymandering case, strikingly similar to this one. In Cooper v. Harris, the Court rejected the State’s request for an alternative-map requirement; the dissent vehemently objected. See 581 U. S., at 318; id., at 334–337 (ALITO, J., dissenting). The Court applied normal clear-error review, deferring to all plausible trial court findings. See id., at 293. The dissent, invoking a presumption of good faith, instead deferred to all plausible arguments of the los...
Read 8 tweets
Mark Joseph Stern Profile picture
May 16
The Supreme Court's third and FINAL opinion of the day is in the CFPB. In a 7–2 opinion by Justice Thomas, the court UPHOLDS the CFPB's funding structure, concluding that it does NOT violate the appropriations clause.

Alito and Gorsuch dissent. supremecourt.gov/opinions/23pdf…
JUSTICE THOMAS delivered the opinion of the Court. Our Constitution gives Congress control over the public fisc, but it specifies that its control must be exercised in a specific manner. The Appropriations Clause commands that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Art. I, §9, cl. 7. For most federal agencies, Congress provides funding on an annual basis. This annual process forces them to regularly implore Congress to fund their operations for the next year. The Consumer Financial Protection Bureau is different. The Bureau does not ...
Today's decision is a HUGE victory for the CFPB and a major defeat not only for the corporate lobby, but for the 5th Circuit, which embraced a theory so radically anti-historical and atextual that JUSTICE THOMAS wrote the opinion emphatically reversing it. supremecourt.gov/opinions/23pdf…
In case Justice Thomas' smackdown for the 5th Circuit weren't enough, Justice Kagan wrote a concurrence—joined by Sotomayor, KAVANAUGH, and BARRETT—explaining why the 5th Circuit's analysis of constitutional history and tradition was completely wrong. supremecourt.gov/opinions/23pdf…
I join in full the Court’s opinion holding that the funding mechanism for the Consumer Financial Protection Bureau complies with the Appropriations Clause. As the Court details, that conclusion emerges from the Clause’s “text, the history against which that text was enacted, and congressional practice immediately following ratification.” Ante, at 6. At its inception, the Clause required only that Congress “identify a source of public funds and authorize the expenditure of those funds for designated purposes.” Ibid. The Clause otherwise granted Congress “a wide range of discretion.” Ante, at...
Read 6 tweets
Mark Joseph Stern Profile picture
Apr 1
Today's decision effectively means that abortion is now illegal in Florida beyond six weeks, before most people know they're pregnant.

BUT: The citizens of Florida will have a chance to enshrine permanent abortion protections via ballot initiative in November.
Note that the Florida constitution already provides explicit protections for the "right to privacy." For decades, the Florida Supreme Court held that this guarantee protected access to abortion. The conservative majority just overturned all those precedents.
Sorry, the six-week ban will take effect in one month, not immediately.
Read 5 tweets

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