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Eric W. Profile picture
@EWess92
Jun 9 • 11 tweets • 3 min read • Read on X
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🔥Hot off the presses: @TheJusticeDept issued an opinion today explaining that disparate-impact liability under federal employment law is *unconstitutional*. This is an earthquake in federal civil rights law. If right, this is the foundation to overturn that pernicious regime. Image
The Supreme Court recently explained that we have a "colorblind Constitution." This opinion explains what is needed. First, business necessity is a *low bar* to defend against disparate impact. Second, causality is a *high bar* for plaintiffs. But the third requirement is👀 Image
"Third, plaintiffs must establish with particular evidence that there is an available alternative practice that causes less disparate impact and would be equally effective for serving the employer’s valid business purpose." Louisiana v. Callais for employment law. Amazing! Image
The whole opinion is necessary reading. But I always appreciate a nice summation conclusion. This single paragraph helps to contextualize everything that came before. Read while it's hot! Image
Kudos to @ElliotGaiser and @joshjcraddock
for putting together this logical, concise, and frankly devastating opinion for defenders of the old, illegal disparate impact regime. Great news for civil rights warrior @andrealucasEEOC too!
Read the opinion here: justice.gov/opa/pr/justice…
Legal scholar and diversity expert Ilya Shapiro weighs in:
Civil rights litigator Dan Lennington weighs in:
Senator Schmitt weighs in:
Then-Attorney General and now Senator @AshleyMoodyFL endorsed this in a petition to EPA in 2024. (Of course joining that coalition was @AGIowa.) Back then, AG Moody's chief was the notable @DHSGenCounsel 👀 Image
@AshleyMoodyFL @AGIowa @DHSGenCounsel Senator Lee, the most based senator, weighs in:

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More from @EWess92

Eric W. Profile picture
Jun 8
Today, a court in Boston held President Trump's $100k fee for H-1B visas is illegal. But in December, a federal judge in D.C. declined to stop the same program. Both suits were brought by activists (one, a California-led coalition, the other, Chamber of Commerce). What gives? Image
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These decisions help illustrate how, while we may be almost 18 months into President Trump's second term, so many of his policies have been stymied in the courts. Similar claims but different conclusions are just the most recent example of the novel scrutiny to executive action Image
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Going through Judge Sorokin's (Obama, D. Mass) opinion, I'm looking for how he treats issues compared to Judge Howell (Obama, D.D.C.). First, consular nonreviewability. Howell sidesteps-with a denial he need not address. Sorokin finds that this visa denial via fee isn't a denial Image
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Read 8 tweets
Eric W. Profile picture
Jun 8
"Because this Court has elevated unadulterated textualism over common sense
and longstanding principles of the criminal law, and [] we are now treading on dangerous constitutional waters." Judge Tjoflat, dissenting. Fascinating split with liberal Judges Abudu and Rosenbaum. Image
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A pair of drug dealers ran an operation out of their home. Other dealers would sell drugs for them. One had a propensity to OD. She obtained drugs and died. Can the home-owner/chief drug dealer be prosecuted for dealing drugs and death resulting? Yes, per Judge Abudu. Image
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Judge Abudu, joined by Judge Rosenbaum, concurs to explain why, under Eleventh Circuit precedent she reaches the result the sentence is constitutional. But she calls on the Eleventh Circuit to reconsider its precedent. Given her view of the law, she finds affirmance is required. Image
Read 4 tweets
Eric W. Profile picture
Jun 8
A Haitian man got a green card in 2002, and committed a Florida aggravated assault with a gun in 2021. After serving his time, he was deleted to Haiti. He challenges his deportation, claiming the assault was not a crime of violence. Judge Branch rejects his claim. Looks right! Image
A question for another day: The appeal was late. But can it be subject to equitable rolling? The Eleventh Circuit demurred, because the petition fails on the merits. Also fascinating within: a discussion on retroactivity, the Florida Supreme Court, and crimes of violence Image
Read the full opinion here: media.ca11.uscourts.gov/opinions/pub/f…
Read 5 tweets
Eric W. Profile picture
Jun 4
Ho boy. Florida AG @JamesUthmeierFL sued the American Academy of Pediatrics in Florida for deceptive practices--endorsing experimental sex change surgeries on children without basis. AAP then sued the AG in . . . Chicago federal court to stop his enforcement. The Court granted! Image
This out-of-state anti-suit injunction violates several vital principles of jurisprudence: personal jurisdiction, venue, Younger abstention, and anti-suit injunction principles. Yet the Court granted anyway. There are several independent bases for Seventh Circuit reversal. Image
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How could the federal court have personal jurisdiction over Florida's AG, overseeing an investigation in Florida? Well, they *served* AAP. Serving a defendant cannot be enough to create specific personal jurisdiction. Nor can press releases about the action. I'm skeptical Image
Read 10 tweets
Eric W. Profile picture
Jun 4
Always interested in @UChicagoLaw programming. Sad that in a Supreme Court term that is so focused on executive power and @TheJusticeDept that the school couldn't find anyone that agrees with the administration to participate. Heck, I would have volunteered for diversity sake! Image
@UChicagoLaw @TheJusticeDept First up is Professor Strauss. He gave a very one-sided and misleading account of the transgender sports cases. Straight out of NPR. Then pooh-poohed the 8-1 Chiles v. Salazar decision. And ended with Geofence warrants. (Funny, Iowa led amici on 2/3 of those on the other side) Image
@UChicagoLaw @TheJusticeDept Next up is Professor Baude. He leads odd with the Second Amendment cases. Pretty fair coverage. Good meta point about how the Court should take more of these cases. Next up is executive removal. He also thinks Humphreys Executor is likely terminal. Good prediction! Image
Read 5 tweets
Eric W. Profile picture
Jun 3
Can judges submit briefs to courts is a very different question than whether they should. Muddying the two, @nytimes builds off the @NRO piece by @mike_frags to cover the very odd 35 Retired Judges' Brief in the Trump v. IRS case. Let's dig in -- Image
A Yale Law Professor litigating against the federal government enforcing immigration laws explains that "It's about ICE versus the courts. The federal judges are infuriated." I was taken aback with the frankness. A judge infuriated by a policy should probably recuse! Image
The former Judges' leader is Michael Luttig, who signed all three of the Retired Judges' briefs. He is a "harsh critic" of the Trump administration. I wonder how many other judges are unable to put their beliefs aside in deciding cases. (Also, is this Nancy Gertner-erasure?) Image
Read 7 tweets

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