Anthony Michael Kreis Profile picture
Jun 20 6 tweets 1 min read Read on X
Here's the thing with the Louisiana Ten Commandments in public schools law. Supreme Court precedent already said hanging them in schools violates the Constitution under the First Amendment in a case Stone v. Graham (1980). Kentucky was slammed by the justices for a similar law.
The Court summarily reversed the Kentucky courts, which held that Ten Commandment displays were constitutional *without* briefing or arguments. It was a 5-4 decision with Burger and Blackmun wanting full consideration. Only Stewart dissented on the merits. But here's the thing...
The decision rested on Lemon v. Kurtzman, a 1971 decision that laid out a test for Establishment Clause violations. Social conservatives did not like Lemon and its dead now. This gives the 5th Circuit or even the Supreme Court some room to throw cold water on Stone v. Graham.
One could argue that Lemon wasn't the force behind Stone (if playing legal formalism) by pointing to Lee v. Weisman, a 5-4 decision from 1992, where Justice Kennedy said prayer at official public school ceremonies is unconstitutional and the much hated Lemon test didn't matter.
Is there a 5-4 majority on the Supreme Court for a parallel approach to Lee v. Weisman if confronted with the Louisiana law? A majority on the 5th Circuit sitting en banc or most random three-judge panels? I'm not so sure.
Throw in the recent case Kennedy v. Bremerton that permitted a football coach to have prayers at school events, which the Court described as voluntary and not part of any official school itinerary. And that's another crack in the precedent, that provides a new opening. We'll see.

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More from @AnthonyMKreis

Jun 6
What might we expect from the Supreme Court today? Well, who knows, but there are five cases remaining from arguments held in 2023. Two of them are major cases, Rahimi and Purdue Pharma. Rahimi is about the firearm possession by people under domestic-violence restraining orders.
Purdue Pharma is not a constitutional law case, but a bankruptcy issue related to the opioid crisis.
Rahimi was argued in Nov. (JGR, CT, SA, SS and EK haven't authored opinions from Nov. 23)
Purdue was argued in Dec. (JGR, CT, NG, and BK haven't authored opinions from Dec. 23)
It isn't a sure bet that a justice will issue an opinion from every sitting but the workload does tend to get evenly distributed when possible. So, there are some tea leaves to read that might tell us what can be expected. But they are limited.
Read 4 tweets
Apr 25
Supreme Court arguments in Trump v. United States and presidential immunity will begin momentarily. I’ll thread argument highlights and commentary here:
John Saurer for Trump: The Framers wanted an "energetic executive" and the "looming threat" of prosecution for "fearless action" would undermine the executive branch.
Thomas: What is the source of the immunity?

Sauer: The Vesting Clause
Read 25 tweets
Mar 20
So, let's talk about the Georgia Court of Appeals. Now that Judge McAfee has granted the certificate of immediate review for the disqualification of Fani Willis, what's the process? The application for an interlocutory appeal will be randomly assigned to a judge. From there...
it will be assigned to a staff attorney who will review the application and any supporting materials. That attorney will provide a memo providing a recommendation to the judge on whether the appeal should be granted or denied. The court has 45 days to act, so decisions are quick.
Court of Appeals Rule 30(a) provides factors that favor review. The most important one here will be whether there is a need to establish clear precedent to refine and guide the trial court. Defendants will have to argue that precedent is insufficient *and* this is a good vehicle.
Read 5 tweets
Mar 14
Good morning— let’s talk about the GA Constitution! Yesterday, Judge McAfee granted quashal on a number of charges related to Donald Trump and his allies’ alleged attempts re: inducing state officials to violate their oaths of office. So what does the Ga. Const. require? #gapol

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The special demurrers centered on the fact the Fulton County DA did not articulate how the election interference defendants, if successful, would’ve suborned a constitutional violation. The Ga. Const. is unique. And it is very important here for Willis if she wants to indict.
Most importantly, Georgians have an express right to vote. The right to vote— at its core— means the right to cast a ballot and have it count. Trump asked SoS Raffensperger to dilute votes in the famous phone call, a fraud that would unlawfully void voters’ preferred outcome.
Read 7 tweets
Mar 13
Why was Judge McAfee's decision correct in the Fulton County case? The DA alleged that some defendants solicited state officials to violate their oath of office to uphold the federal and state constitutions, including the Secretary of State and members of the General Assembly.
The U.S. Constitution and GA Constitution are different documents and election subversion could violate a number of different provisions of either constitution. What provision of each does the DA believe these co-defendants conspired to undermine and induce officials to violate?
The DA never plainly detailed the constitutional theory of why what the defendants were doing was a violation of constitutional principles. There are various ways to articulate that but the defendants were not given notice by the DA sufficient to create a defense.
Read 4 tweets
Feb 29
NEW from me in the @ajc: Judge McAfee 𝘥𝘰𝘦𝘴 𝘯𝘰𝘵 have the power to disqualify @FaniforDA or the @FultonCountyDA from the 2020 election interference prosecutions under the Georgia Constitution without evidence of an actual conflict of interest. #gapol ajc.com/opinion/case-a…
A few brief highlights of my argument. The standard for prosecutorial disqualification is an 𝘢𝘤𝘵𝘶𝘢𝘭 𝘤𝘰𝘯𝘧𝘭𝘪𝘤𝘵 not the 𝘢𝘱𝘱𝘦𝘢𝘳𝘢𝘯𝘤𝘦 of a conflict or an appearance of impropriety. Judge McAfee on February 15th suggested that the standard could be either.
Judge McBurney indicated this could be the standard when he disqualified the Fulton County DA's Office from investigating Burt Jones' role in the 2020 election aftermath while the Special Purpose Grand Jury was empaneled. Here is Judge McBurney's footnote. fultonclerk.org/DocumentCenter…
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Read 18 tweets

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