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Jed Shugerman Profile picture
@jedshug
Feb 29 • 4 tweets • 1 min read • Read on X
Nevermind.
I'm a naive fool.
Unfortunately, both @rparloff & @EricColumbus are right: Image
3/ And @stevenmazie is also right, unfortunately:
@stevenmazie 4/ The order today could have been just one word:
“No.”

7 more words:
“Remanded to the district court for trial.”

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More from @jedshug

Jed Shugerman Profile picture
Feb 15
I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."

Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
3/ Trump's lawyers can seek an injunction in fed district court (and a stay) on grounds of
1) no state jurisdiction
2) federal preemption
3) selective prosecution, partisan bias, violation of 14th A.

I predicted this delay problem last year in @nytimes:
nytimes.com/2023/04/05/opi…
Read 20 tweets
Jed Shugerman Profile picture
Feb 8
I’ll live-tweet the 14th A. Disqualification oral arguments this morning. 🧵

I think there are 5 issues. One is easy (“officers” includes presidents), 1 is a mild problem, and I have strong concerns about 3 others, especially whether Jan 6 or speech count as “insurrection”
I’m flagging this article on 1st Amendment concerns about Colorado’s specific ruling by @Thomas_A_Berry
It raises 1 of several problems specific to Colorado’s trial court basis.

@ARozenshtein & I have published a solution in future cases.
@Thomas_A_Berry @ARozenshtein 3/ I agree w/ @Thomas_A_Berry’s 1st A. analysis.
@ARozenshtein & I had similar concerns in 2022 and argued that Trump engaged in overt acts, not just speech.

“January 6, Ambiguously Inciting Speech, and the Overt-Acts Rule”
Const Commentary (2022):
papers.ssrn.com/sol3/papers.cf…
Read 53 tweets
Jed Shugerman Profile picture
Jan 12
I'm interrupting my 2-month Twitter hiatus b/c I've just found a highly relevant speech from the Ratification debates (1788):
Against Presidential Immunity & Unitary Executive theory (interpreting the Opinions Clause).
Future SCOTUS Justice Iredell, NC Convention, 7/28/1788:

Image
Image
Image
2/
 From Elliot's Ratification Debates, Vol. 4, p. 108-110.
NC Delegate James Iredell, SCOTUS Justice 1790-1799:
On presidential criminal liability, to explain the Opinions Clause vs. a British cabinet, he first explains that a president is (obviously) different from the King: Image
3/ The king is immune from criminal & civil liability, so cabinet ministers stand in for the king to face criminal and political liability.
But in the republican Constitution, the president is (obviously) civilly & criminally liable, and his accountability should be made clear: Image
Read 14 tweets
Jed Shugerman Profile picture
Nov 9, 2023
I'll live-tweet some events from @FedSoc National Lawyers Convention "Originalism on the Ground" (Panel #1), Paul Clement, Hon. Britt Grant, Hon. James Ho, Hon. Joan Larsen, @BMeyler (Stanford Law), Hon. Jason Miyares, @ElizabethWydra (@MyConstitution), Thursday 9:15-11:15
1/
2/ I'll review previous points, but here is a question I'm especially interested in. Moderator Hon. Larsen asks @bmeyler about the legal academy and historians on originalism.
@bmeyler says legal scholars/historians have more time to dig, and sometimes the research takes years...
@BMeyler 3/ @BMeyler mentions her Stanford colleague @TheGNapp's 1st book & new book manuscript on originalism and the different purposes over time and the changing understandings of written constitutions over time.
1787-89, no expectation of complete answers.
Read 24 tweets
Jed Shugerman Profile picture
Jul 4, 2023
The Major Question Doctrine is Purposivism, not Just Anti-Deference: a thread.
Barrett's Student Debt concurrence tried to defend the MQD as textualism, but fumbled into the opposite.
Color-coding & annotating her opinion, p. 5-16:
Red = textualism
Blue = unwitting purposivism
2/ Her opening "short answer" quoting FDA v. Brown & Williamson is a strange start for a textualist (p. 5).
This early MQD case was social/political context (purpose) over text.
As a matter of text & dictionaries, tobacco plainly is a “drug,” and cigarettes are "devices":
3/ Instead of relying on the 4-cornered text or on general statute-writing norms, the Court turned to circa 1930s America and its background socio-political realities of tobacco usage - legislative history & purposes on the subject of drug regulation.
Read 7 tweets
Jed Shugerman Profile picture
Jun 29, 2023
Affirmative Action dissents from Sotomayor and Jackson (and Kagan concurring) have an enormous amount of *originalist* historical evidence of race-conscious remedies from the 1860s.

A thread of screenshots from their dissents. Then I’ll add from the majority.

Sotomayor dissent:





2/ Jackson highlights & embraces Sotomayor’s historical analysis of the 1860s:
P. 2: “Our country has never been colorblind.”





3/ Jackson (p. 5) quotes Justice Harlan’s originalist argument in his own lone Plessy dissent (1896):
the 14th A.’s equal protection clause was “to secure and protect the rights belonging to [Black people] as freemen and citizens; nothing more.”
Read 12 tweets

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