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Mike Sacks Profile picture
@MikeSacksEsq
Dec 15 • 14 tweets • 6 min read Twitter logo Read on Twitter
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2nd Circuit, sitting en banc, finds that non-transgender female high school athletes have standing to sue Connecticut for Title IX sex discrimination over the state's inclusion of transgender female athletes in track and field competitions. ww3.ca2.uscourts.gov/decisions/isys…

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We do not consider whether Plaintiffs’ Title IX claims have any merit or whether they would be entitled to the relief that they seek as a matter of equity, but rather whether the district court has jurisdiction to hear their claims in the first instance. We conclude that it does, for the reasons advocated for both by Plaintiffs and by Intervenors. First, Plaintiffs have established Article III standing at this stage in the litigation. They have pled a concrete, particularized, and actual injury in fact that is plausibly redressable by monetary damages and an injunction ordering Defendants t...
CA2 says if the state made trans girls compete with boys, and "transgender girls alleged that such a policy discriminated against them on the basis of sex and deprived them of publicly recognized titles and placements, they too would have standing to bring a Title IX claim."
"On remand, the district court should assess in the first instance whether Plaintiffs’ complaint states a claim for a violation of Title IX."

IOW: now that you can sue, you have to prove you actually have a case.
Judge Nathan (Biden), writing for the majority, concludes by cutting through the clutter of the many concurring and dissenting opinions:
The holding of the en banc Court is limited. A majority of the Court concludes that Plaintiffs have standing to sue for some of the injunctive relief outlined in the complaint. As to the availability of monetary damages, a different majority of the Court concludes that the district court on remand must resolve the underlying merits question before or in tandem with the Pennhurst question. Although competing concurring and dissenting opinions join issue on how the Pennhurst analysis should be resolved and whether money damages are available, a majority of the Court concludes a remand is appr...
The splintered nature of the Court’s opinions should not in any way suggest that its holding encompasses a determination on that highly contested underlying merits question. It does not. The Court reaches no conclusion as to whether Plaintiffs have plausibly stated a Title IX violation. Nor does the Court opine on the question of whether—even if Plaintiffs have stated such a claim—they are entitled to any of the injunctive relief they seek. Nor should the splintered nature of the Court’s en banc holding obfuscate the extent of agreement reached. The Court unanimously concludes that Plaintif...
3 out of CA2's 5 Trump appointees write separately to emphasize the limited nature of the ruling: PARK, Circuit Judge, joined by NARDINI and MENASHI, Circuit Judges, concurring: I write to state what should be obvious but may get obscured in the flurry of separate statements accompanying today’s opinion of the Court: Only the majority opinion has precedential weight. The separate writings represent the views of their respective signers alone. To the extent that they interpret the opinion of the Court or opine on issues not before the Court, they do no more than signal the personal views of the authors and joining judges. If anything, they represent what a majority of the Court did not j...
And yet two of those three Trump judges then concurred separately to state their position on a matter not decided today: MENASHI, Circuit Judge, joined by PARK, Circuit Judge, concurring: I join the opinion of the court. ... I write separately to make three points about the Spending Clause issues in this case. First, the district court erred not only in treating Pennhurst as jurisdictional but also in failing to address whether the CIAC Policy was intentional conduct and therefore not subject to the notice requirement at all. Second, I would join the Fifth, Ninth, and Tenth Circuits in holding that an official policy of a recipient educational institution always qualifies as intentional conduct. For that reas...
(Almost exactly a year ago, the original panel of Obama, Obama, Biden judges held that the plaintiffs had no standing) storage.courtlistener.com/pdf/2022/12/16…
Judge Nathan, along with fellow Biden appointee Robinson (who was on the original panel), to highlight the humanity of the transgender intervenors and strongly hints at her merits view that Title IX doesn't ban schools from including trans girls from girls' sports teams. Image
Nathan also footnotes the state of play among the circuits on the broader question of "whether Title IX requires schools to allow transgender girls like Andraya and Terry to compete on girls’ sports teams." One of our sister circuits has held that a categorical ban on the participation of transgender women and girls in women’s student athletics likely violates the Equal Protection Clause. See Hecox v. Little, 79 F.4th 1009, 1016 (9th Cir. 2023) (affirming the district court's grant of preliminary injunctive relief because the law “categorically bans transgender girls and women at all levels from competing on female, women, or girls teams” and the state “failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity fo...
Judge Perez (Biden) splits with the majority's saying the plaintiffs could be entitled to injunctive relief that would declare them winners of the races they lost to trans girls, and she calls out Nathan's "shoe on the other foot" hypothetical The majority opinion presents its own hypothetical, suggesting that “if some other athletic conference adopts a policy that, unlike the CIAC Policy, categorizes transgender girl athletes as boys in their public records of athletic accomplishment,” girls who are transgender “would have standing to seek to have those public records altered to indicate their alleged accurate athletic achievement.” Maj. Op. at 28. Indeed, if the girls who are transgender in the majority opinion’s hypothetical were still high school athletes alleging an ongoing harm, they would certainly have standing to pursue ...
Perez brings her voice and experience as a former civil rights lawyer to her judicial opinion, both in a lengthy footnote rebutting the Trump appointees on the state of Title IX/trans law, and in taking a stand against courts misgendering trans litigants


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Another Biden judge pretty much just says "sure, fine, whatever" to bridge the divide between the majority and the dissent over how the district court should proceed on the dispute over whether the schools were on notice that their trans-inclusive policy violated Title IX Image
The dissent, written by the author of the panel majority and joined in full by another of its members (both Obama appointees), says the majority went too far in how it let the plaintiffs proceed
CHIN, Circuit Judge, dissenting, joined by CARNEY and KAHN, Circuit Judges, in full; MERRIAM, Circuit Judge, as to Parts I and II; LEE and PÉREZ, Circuit Judges, as to Part II; and LOHIER and ROBINSON, Circuit Judges, as to Part III
"We do not allow plaintiffs to bring suit just because they oppose a policy." Biden v. Nebraska, 143 S. Ct. 2355, 2385 (2023) (Kagan, J., dissenting). Yet now that Plaintiffs' core claims for relief have been mooted by the pandemic and their respective graduations, all that is really left is their disagreement with the policy under which they previously competed. We recognize that civil rights litigants -- and all of us -- are best served when courts are cautious in limiting access to adjudication. But the majority is inadequately cautious about observing the fundamental limitatio...
The all-Dem dissent fights with the Trump judges' concurrence over whether SCOTUS's Bostock ruling that gender identity discrimination is sex discrimination under Title VII also applies to Title IX, signaling another fault line that will ultimately find its way to SCOTUS.

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More from @MikeSacksEsq

Mike Sacks Profile picture
Sep 6
Translation: Sure we are openly defying a 5-4 SCOTUS ruling but we think Justice Kavanaugh will flip his vote if we come back at him with the exact argument he told us to make when he sided against us last time
Alabama’s gonna “raise that temporal argument” and hope Kavanaugh thinks that the Voting Rights Act no longer should authorize “race-based redistricting.”

Question is whether Kav left that loaded gun out for immediate use or for some years from now.
The three-judge district court opinion smacking down Alabama’s defiance contained a section on Kavanaugh’s concurrence to show why Alabama must lose but completely ignored the part where Kav wrote how Alabama could have won—and may yet still win—his vote s3.documentcloud.org/documents/2393…
"Fourth," Justice Kavanaugh emphasized, "Alabama asserts that § 2, as construed by Gingles to require race-based redistricting in certain circumstances, exceeds Congress's remedial or preventive authority," but "the constitutional argument presented by Alabama is not persuasive in light of the Court's precedents." Id. at 1519 (Kavanaugh, J., concurring).
Read 6 tweets
Mike Sacks Profile picture
Aug 9
Just unsealed from DC Circuit:

Jack Smith got a warrant for Trump’s tweet data from Twitter, Twitter was too a shambles to meet its production deadlines, claimed 1A as a defense, got hit with contempt sanctions, and lost its appeal.

https://t.co/oF5DgP6ZnScadc.uscourts.gov/internet/opini…
PAN, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. ("Twitter") to produce information to the government related to the Twitter account "@realDonaldTrump." The search warrant was served along with a nondisclosure order that prohibited Twitter from notifying anyone about the existence or contents of the warrant. Twitter initially delayed production of the materials required by the search warrant while it unsuccessfully litigated objections to the nondisclosure order. Although Twitter ultimately complied wit...
All-Dem panel (Obama. Biden, Biden) rejected Twitter’s argument that the nondisclosure order was a prior restraint on speech…namely, the company’s desire to tell the public—and Trump—about the search warrant.

Twitter's contrary arguments are unpersuasive. First, Twitter claimed that the government's interest in maintaining the confidentiality of the criminal investigations was undermined by information already in the public sphere. Twitter asserted that "the cat [was] out of the bag: the public ... already [knew] that the Special Counsel [was] investigating the former President and collecting his private electronic communications." Opening Br. 25. We disagree. At the time of Twitter's challenge to the nondisclosure order, some information about grand jury subpoenas or visitors to the f...
Second, Twitter proposed two less restrictive alternatives to the nondisclosure order that it contended could address the government's concerns "while still enabling it to meaningfully exercise its First Amendment rights." Opening Br. 31. Those proposals involved revealing parts of the warrant to the former President or to his representatives. At the time that Twitter made its motion, those suggested alternatives were nonstarters because they would not have maintained the confidentiality of the criminal investigation and therefore risked jeopardizing it. …. In any event, such acti...
court to take on the unpalatable job of "assessing] the trustworthiness of a would-be confidante chosen by a service provider." Id.; see also E-Mail Accounts, 468 F. Supp. 3d at 562 (holding that a proposal "to notify someone at the [targeted] company, like a senior official or a lawyer in its United States office, of the warrant ... was not as effective as the nondisclosure order" in protecting an investigation). Twitter thus failed to proffer any alternative to the nondisclosure order that "accomplished] the government's goals equally or almost equally effectively...
Don’t we all the pendency of this appeal, Twitter, Inc. merged into a privately held company named X Corp. Opening Br. iii. For ease of reference, we refer to appellant as "Twitter" throughout this opinion.
Read 7 tweets
Mike Sacks Profile picture
Jul 28
This description of Alito’s “distinctive interpretive method” is a very long way of saying “Partisan Republican”

https://t.co/SbmXAfKPxpwsj.com/articles/samue…
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I don’t say that as a smear. It’s exactly why the authors of this piece love him. They just can’t say it in so few and candid words lest they further aid in the court’s loss of public legitimacy.
This is a really good interview because of how Alito accurately describes each of his conservative colleagues’ differences. So long as they are in the majority, it is essential to understand how their unique personalities and politics determine the how and why of their votes.
Read 7 tweets
Mike Sacks Profile picture
Jul 10
Owning the libs by…proposing new campaign finance limits axios.com/2023/07/10/gop…
Owning the libs by…proving Alito wrong when he went all NOT TRUE to Obama’s saying Citizens United would open our campaigns up to foreign influence
The majority in Citizens United said “the First Amendment generally prohibits the suppression of political speech based on the speaker's identity” and left open whether banning foreign spending was a compelling enough interest to overcome that principle. https://t.co/Tuc6SU5IEyscholar.google.com/scholar_case?c…
Read 16 tweets
Mike Sacks Profile picture
May 30
This from @The_Law_Boy via @ballsstrikes is dead-on.
ballsandstrikes.org/law-politics/d… ImageImage
Been banging on about this here for a while
Accord @dsc250
Read 9 tweets
Mike Sacks Profile picture
May 28
THIS IS SO GOOD
Thomas’s Michigan Law affirmative action dissent is evidence of his Black nationalism, and progressives would do well to co-opt his vision and turn it in their direction once it becomes a majority in the Harvard/UNC cases.
Because really what’s going on at SCOTUS right now is
Read 4 tweets

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