Mark Joseph Stern Profile picture
Nov 7 6 tweets 4 min read
Supreme Court orders list is here: supremecourt.gov/orders/courtor…

Some interesting dissents. Gorsuch argues that the 6th Amendment guarantees a 12-member jury for serious crimes. Kavanaugh would also take up the case. The State of Arizona convic...
Thomas once again calls for overruling the Feres doctrine, a judge-made principle that bars military personnel from suing for an injury "incident to military service." (I think he's absolutely right.) supremecourt.gov/orders/courtor… JUSTICE THOMAS, dissenting ...
Sotomayor, joined by Jackson, would summarily reverse a lower court decision finding that a prosecutor's egregious and prejudicial misconduct at trial was a "harmless error." (The facts are galling.) supremecourt.gov/orders/courtor… JUSTICE SOTOMAYOR, with who...
Gorsuch dissents from the court's refusal to take up a case designed to overrule Chevron deference (with very sympathetic facts—he loves doing this!). supremecourt.gov/orders/courtor… JUSTICE GORSUCH, dissenting...
The court also dismisses, as moot, an appeal in a one person/one vote case from Michigan. (This case was actually a cynical attack on Michigan's independent redistricting commission, so I deem this a good outcome.) supremecourt.gov/orders/courtor… Image
Finally, I believe this is Justice Jackson's first opinion of any kind on the Supreme Court, dissenting (with Sotomayor) from the court's refusal to summarily reverse the 6th Circuit in a Brady case. supremecourt.gov/orders/courtor… Pages 53-54 in the linkImage

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More from @mjs_DC

Nov 7
Twitter's future is suddenly uncertain, and with it, the fate of my own online community. I'll explain more below, but for now: If you'd like to keep in touch, and be the first to know where I'm going if Twitter implodes, please provide your email here. markjosephstern.com/stay-in-touch
This isn't a newsletter subscription or a promotional listserv. I won't share or sell your data to anyone. This is just an effort to keep in touch and let you know what I'm up to, since it seems unclear whether this platform can survive for another week, let alone another year.
I haven't switched to any other platform. But I just don't know where things are heading here. I really value this community of people who care deeply about the law and the courts. I don't want to lose it! And right now, this is my best backup plan. markjosephstern.com/stay-in-touch
Read 5 tweets
Nov 4
The ratio of horserace coverage to actual reporting throughout this election cycle has been depressing, at least for me. Endless articles crafting narratives around new polls and speculating about momentum, far fewer pieces explaining what candidates are saying and doing.
I'm not a politics reporter so I'm Monday morning quarterbacking here, and I don't mean to criticize anyone in particular. It just feels like the obsessive focus on polling has drawn attention and resources away from real reporting about the candidates, to our detriment.
The political reporters whose work I find most helpful in understanding this election cycle are paying close attention to the candidates and their supporters, and reporting what they are actually saying and doing. The vibes-based coverage tells us so much less, but it dominates.
Read 6 tweets
Nov 1
U.S. District Judge Carlton Reeves considers appointing a historian to review the historical record and decide whether § 922(g)(1)—which bars felons from possessing guns—is supported by Founding-era law and tradition. s3.documentcloud.org/documents/2325… Not wanting to itself cherr...
In Bruen, the Supreme Court forced lower courts to play amateur historian and decide whether modern gun restrictions have an analogue from 1791. This task leads to egregiously bad and dilettantish historical analysis. Reeves wants to avoid that by appointing an actual expert.
Reeves is openly skeptical that judges (who have no historical training) can reliably interpret Founding-era history. He notes the temptation to simply cherrypick facts that fit their conclusion.

(Please excuse me for tweeting an opinion that cites me.) s3.documentcloud.org/documents/2325… The problem has gotten more...
Read 4 tweets
Oct 31
Kagan, responding to the claim that racial diversity in education doesn’t matter: “I thought that part of what it meant to be an American and to believe in American pluralism is that, actually, our institutions are reflective of who we are as a people in all our variety.”
After counsel suggests universities can give a boost to men but not racial minorities, Kagan responds: “That would be peculiar, wouldn’t it? White men get the thumb on the scale, but people who’ve been kicked in the teeth by our society for centuries do not?”
KBJ poses a hypothetical: One applicant writes an essay about their family’s history in NC—with no mention of race. Another writes an essay about their ancestors’ enslavement in NC. Isn’t there an equal protection problem if the university can’t consider the second essay?
Read 4 tweets
Oct 31
SCOTUS is about to hear arguments on the legality of affirmative action. The court will likely outlaw race-conscious admissions.

Elite universities' first response should be abolishing their affirmative action programs for ultra-privileged white kids. slate.com/news-and-polit… In theory, ALDC preferences are colorblind. In practice, the
Elite universities and law schools pretend like a dearth of underrepresented racial minorities is just some inevitable consequence of merit-based admissions. Nonsense. These institutions build in a massive bias for rich white applicants. It's obscene. slate.com/news-and-polit… Although Justice Clarence Thomas gets the history of equal p
I think it's clear that institutions of higher education may lawfully consider race to build a diverse class.

But affirmative action programs are often a Band-Aid to cover deeper structural barriers that preserve the disproportionately white status quo. slate.com/news-and-polit… But we should not lose sight of the fact that these programs
Read 4 tweets
Oct 25
D.C.'s lack of statehood means that most Americans—including many journalists who live here, such as @mattyglesias—do not understand who controls which parts of government. Accountability gets scrambled, and people like Matt blame the D.C. Council for a problem it cannot fix.
The Supreme Court has repeatedly held that voters should know whether to blame the state or federal government for unpopular decisions. Similarly, @mattyglesias's tweets today illustrate how Congress' control over DC blurs the lines of accountability. supreme.justia.com/cases/federal/… But where the Federal Gover...
I find it especially galling for @mattyglesias dismiss, as a "dirty pool," the D.C. Council's efforts to enforce the Sixth Amendment's guarantee of a trial by jury, just because it doesn't have the power to put more resources into the court system.
Read 5 tweets

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