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Mark Joseph Stern Profile picture
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13 Dec, 10 tweets, 5 min read
NEW: The Supreme Court refuses to block a New York regulation requiring health care workers to get the COVID vaccine with no religious exemptions. Thomas, Alito, and Gorsuch dissent.
Here is Gorsuch's furious dissent, which compares vaccine mandates to laws forcing public school students to recite the pledge of allegiance. documentcloud.org/documents/2115…
(Housekeeping: There were two challenges to New York's vaccine mandate; today, the Supreme Court turned away both of them. Thomas, Alito, and Gorsuch dissented from both orders. Gorsuch filed a written dissent in the second case, Dr. A v. Hochul.)
Gorsuch strongly suggests that Gov. Hochul eliminated religious exemptions to New York's vaccine mandate due to her hostility toward religion. documentcloud.org/documents/2115…
Once again, Gorsuch evinces a great deal of empathy toward those who refuse the COVID vaccine due to religious objections, saying they are not "anti-vaxxers." documentcloud.org/documents/2115…
Actually, Gorsuch outright declares that Gov. Hochul's alleged hostility toward religion justifies blocking New York's vaccine mandate as unconstitutional, at least "as applied to these applicants." documentcloud.org/documents/2115…
Here's Gorsuch comparing vaccines mandates to pre-WWII laws forcing school children to recite the pledge. As usual, he downplays or trivializes the threat of COVID throughout his dissent. documentcloud.org/documents/2115…
Gorsuch last week: Liberal religions are "watered down versions" of the real thing. npr.org/2021/12/08/106…

Gorsuch this week: Saying "God wants" people to get vaccinated is unconstitutional anti-religious animus.
documentcloud.org/documents/2115…

It's not animus when a justice says it!
This too
Gorsuch assumes that Hochul’s comments are self-evidently hostile toward religion. Is that true? Why can’t a governor express her belief that God wants everyone to get vaccinated? Doesn’t Gorsuch’s standard wind up severely restricting elected officials’ free speech?

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Mark Joseph Stern Profile picture
13 Dec
This is a really important point. Critics of the "administrative state" and executive power rarely acknowledge that the filibuster contributes to both phenomena. The president and executive agencies must fill in more and more gaps in the law because a paralyzed Congress cannot.
There is a lot of agreement between conservative-libertarian types and progressives that the executive branch has amassed too much power. But without filibuster reform, very little substantive legislation can pass the Senate, so power continues to flow to the executive.
The current arrangement is very favorable to our Republican-dominated federal judiciary, though, because judges can block executive actions and agency rules then say "sorry, Congress has to do this," knowing full well Congress will never do it. A neat system we've set up.
Read 6 tweets
Mark Joseph Stern Profile picture
10 Dec
BREAKING: The Supreme Court allows Texas abortion providers to sue the state's "executive licensing officials" to block S.B. 8, the state's six-week abortion ban. The federal lawsuit can proceed. supremecourt.gov/opinions/21pdf…
Separately, the Supreme Court dismisses (as improvidently granted) the Justice Department's challenge to S.B. 8 on behalf of the United States. Only Sotomayor dissents. supremecourt.gov/opinions/21pdf…
The Supreme Court divides 4–1–4:

Gorsuch, Alito, Barrett, Kavanaugh: Providers can sue executive licensing officials.

Thomas: Providers can't sue at all.

Roberts, Breyer, Sotomayor, Kagan: Providers can sue licensing officials, the TX AG, and state court clerks.
Read 10 tweets
Mark Joseph Stern Profile picture
8 Dec
Today the Supreme Court will hear Carson v. Makin. The plaintiffs seek to force Maine into subsidizing the religious indoctrination of children in the name of "religious liberty." If successful, Mainers will be financing Christian schools like these. slate.com/news-and-polit… Image
The plaintiffs argue that Maine "discriminates on the basis of religion" by declining to spend taxpayer dollars on Christian education that includes hateful propaganda about religious minorities and LGBTQ people. The Supreme Court will likely agree. slate.com/news-and-polit…
As a result, Mainers who vehemently disagree with fundamentalist Christian values will be compelled to underwrite schools that inculcate these values in children. Muslims, Jews, atheists, liberal Christians, LGBTQ people: Their rights just don't matter. slate.com/news-and-polit… Image
Read 4 tweets
Mark Joseph Stern Profile picture
2 Dec
Jeffrey Bossert Clark's lawyer writes that "based on our research," the Jan. 6 committee lacks authority to issue depositions. He says the committee is improperly constituted because, among other things, Liz Cheney is no longer a real Republican.
docs.house.gov/meetings/IJ/IJ… Image
Reminder: Clark plotted a coup with Trump to use the Justice Department to overturn the election. slate.com/news-and-polit…

His lawyer says he won't testify about the failed DOJ coup and slams the Jan. 6 committee as a "political monolith" with no legal power to depose him. Image
Clark's chief objection is that the Jan. 6 investigation is "not being conducted in true bipartisan fashion," alleging that Republicans' "ostensible counsel" did not "push back" enough against Democrats. For evidence, he cites a Mollie Hemingway article in the Federalist. Image
Read 4 tweets
Mark Joseph Stern Profile picture
1 Dec
Sotomayor says the sponsors of Mississippi's 15-week abortion ban said "we're doing it because we have new justices."

She asks: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"
Chief Justice Roberts suggests that the bright-line rule established in Roe and Casey—no total abortion bans before fetal viability—was completely arbitrary. It sounds to me like he is ready to abolish the viability line.
After Sotomayor suggests that overturning Roe would imperil other precedents protecting contraception and gay rights, Barrett asks if the court could overrule Roe in a way that preserves those precedents. Sounds like she's preemptively saying: Roe is dead, but those are safe.
Read 13 tweets
Mark Joseph Stern Profile picture
30 Nov
This is Trump Judge Terry Doughty's second nationwide injunction against a Biden administration policy. He previously blocked Biden's attempt to pause new oil and gas leases on public lands.

Doughty was confirmed unanimously in the Senate, by the way. slate.com/news-and-polit…
The non-delegation has gone from a moribund theory to ubiquitous cudgel against Joe Biden in roughly two years. Trump judges barely even really explain their reasoning anymore—they just scream "non-delegation doctrine" and issue a nationwide injunction. storage.courtlistener.com/recap/gov.usco…
Has anyone checked in with the conservative commentators who railed against nationwide injunctions under Trump?

Why yes, I have, and they are silent. 🙃
slate.com/news-and-polit…
Read 6 tweets

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