Court in NRSC v. FEC overrules what remains of 2001 ruling (Colorado II):
Ultimately, the First Amendment question in this case boils down to whether FECA’s limits on political-party coordinated expenditures are permissible in order to prevent circumvention of the base limits on contributions to candidates through earmarked contributions to parties. In Colorado II, this Court said that they were. But Colorado II applied deferential scrutiny to Congress’s politicalparty coordinated-expenditure limits. Since Colorado II, however, the Court has emphasized that under the closely drawn test, judicial review must be “rigorous.” Under that more demanding standard, the Court agrees with petitioners that the political-party coordinated-expenditure limits are not proportionate, necessary, and narrowly tailored given the other less-speech-restrictive tools available to the Government to prevent circumvention—in particular, earmarking and disclosure laws. Ruling on birthright citizenship. Chief: Children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause. 5-4.

Rulings in sports cases. Kavanaugh majority opinion. 6-3. Held:
1. Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex, and West Virginia has permissibly maintained female sports for biological females consistent with Title IX.
2. West Virginia and Idaho did not violate the Equal Protection Clause of the Fourteenth Amendment by maintaining female sports teams for biological females. Kavanaugh majority: Under this Court’s decision in Skrmetti, the challenged laws do not classify based on gender identity or transgender status but instead on the basis of biological sex. The classification at issue readily satisfies rational basis review or intermediate scrutiny.

First #SCOTUS ruling today, Watson v. Republican National Committee.
ACB majority for herself, Chief, and 3 libs. Held: The federal election-day statutes do not prevent Mississippi from counting absentee ballots postmarked by election day but received up to five days thereafter; nothing in the federal election-day statutes requires ballots to be received by election day. Here's Watson ruling: supremecourt.gov/opinions/25pdf…

1st #SCOTUS ruling today, Monsanto v. Durnell.
Kavanaugh majority, 7-2, KBJ joined by Gorsuch in dissent. Held: Federal Insecticide, Fungicide, and Rodenticide Act expressly preempts Durnell’s state-law failure-to-warn claim because the claim would require Monsanto to add a cancer warning to Roundup’s label. Monsanto opinion here: supremecourt.gov/opinions/25pdf…

4th (but not last) ruling, Pung v. Isabella County. Alito majority, unanimous on bottom line (only CT doesn't fully join). Held: 1. The proper baseline for measuring “just compensation” following a tax sale is the auction sale price, not the property’s hypothetical fair market value, at least when the sale is fairly conducted in light of the country’s history of tax sales. 2. The Court rejects Pung’s argument that the County violated the Eighth Amendment Excessive Fines Clause by failing to compensate him for his property’s fair market value. Pung ruling: supremecourt.gov/opinions/25pdf…

1st #SCOTUS ruling today, Cisco Systems, Inc. v. Doe. ACB majority, 6-3. Held: 1. Courts may not create new causes of action for violations of international norms under the Alien Tort Statute. 2. The Torture Victim Protection Act of 1991, which contains an express cause of action against someone who “subjects” another to torture, does not provide for aiding-and-abetting liability. Here's opinion in Cisco v. Doe. supremecourt.gov/opinions/25pdf…

Supreme Court's first ruling today: Keathley v. Buddy Ayers Construction, Inc.
KBJ unanimous: Held: To determine whether an omission of a claim in the bankruptcy context was inadvertent or mistaken for purposes of judicial estoppel, courts should look to the totality of the circumstances surrounding the omission; the Fifth Circuit erred by artificially narrowing its inquiry to whether the debtor had knowledge of the underlying facts or a potential motive to conceal the claim. That's KBJ's 6th (and probably last) majority opinion for the term. All unanimous, all in low-tier cases--a reflection of the sort of assignments that a junior justice in ideological minority receives.

As expected, this is a crazy filing. Virginia makes two arguments in support of its request for an emergency stay.
1. It contends that the state supreme court's interpretation of the Virginia constitution is "predicated ... on a grave misreading of federal law." But the court merely cited a Supreme Court case as informative on, and supportive of, the general meaning of "election." This comes nowhere close to meeting the high bar of showing that the court ruled on a federal question.
2. Invoking the narrow exception left open in Moore v. Harper (2023), it contends that the court's ruling so “transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections.” But no justice is going to find the court's ruling manifestly bonkers.
Look for this stay application to be denied without any dissent.

https://x.com/EdWhelanEPPC/status/2053928339228831937

Very weird that cover page states "On Emergency Application to the Supreme Court of Virginia." That's the styling for a petition for a writ of certiorari, but it makes no sense to say that the emergency application is "to" the Supreme Court of Virginia.

THREAD. Schedule allowing, I’ll listen in on today’s birthright-citizenship case and live-tweet exchanges that strike me as interesting. I’ll be especially eager to see whether some of the conservative justices signal a disposition to rule against Trump on statutory grounds (and not to reach the constitutional question). The argument is scheduled for 1 hour, but will likely run much longer (maybe 2-1/2 to 3 hours). Solicitor General John Sauer is up first, then ACLU’s Cecillia Wang, then Sauer’s rebuttal.

Trump v. Cook oral argument on president's power to remove Federal Reserve Board governor.
SG John Sauer for Trump, former SG Paul Clement for Cook.
(Not sure why it hasn't already started.) Coming in late (technical glitch). Long question by SS on why Trump should get interim relief enabling him to remove Cook.
SG: There is no jurisdiction to restore public officer to office.

First Supreme Court ruling today: Berk v. Choy. Holding: Delaware’s affidavit law does not apply in federal court.
ACB majority for 8. KBJ concurs in judgment. supremecourt.gov/opinions/25pdf…

Oral arguments in transgender sports cases begin at 10 ET. I will live-tweet comments on the arguments in this thread. Let's start with the lineup. Montana case (Little v. Hecox) is up first. Idaho solicitor general Alan Hurst for 20 minutes, principal deputy U.S. solicitor general Hashim Mooppan for 10 minutes in support, Kathleen Hartnett for Hecox for 30. Case presents only Equal Protection issue.
Then West Virginia case (W.V. v. BJP). WV SG Michael Williams for 20 minutes, Mooppan again for U.S. in support for 10 minutes, Joshua Block for B.J.P. for 30. Case presents Title IX and EP issue.

On Tuesday, the Supreme Court will hear oral argument in a pair of cases—West Virginia v. B.P.J. and Little v. Hecox—that present the question whether state laws that preserve girls’ and women’s sports teams for girls and women violate federal law. 1/ I’ve had little to say recently about these cases for the simple reason that there is little that needs to be said. The challenged laws define who may play in girls’ and women’s sports on the basis of sex, not on the basis of gender identity. Rather than discriminate on the basis of gender identity, they disregard gender identity. Boys can’t play on girls’ teams, and that’s true both for boys who identify as male and those who identify as female.
Once you grasp this elementary point—a point that escaped the Fourth Circuit and Ninth Circuit—the claims dissolve into nothingness. 2/

Thread on #SupremeCourt oral argument this morning (10 a.m.) in Trump v. Slaughter on president's authority to remove executive-branch officers. I'll start with things I'll be looking for in oral argument, and during argument will (time allowing) livetweet some comments. Court's grant of emergency relief to Trump in September is very strong indicator that Trump will win. The three liberal justices dissented, but that doesn't necessarily mean that all six conservative justices are on board. It's possible that one has doubts. It's also possible that the majority is divided on the theory on which Trump wins. Note that Court granted review on two questions. Might there be a division on which ground Trump wins on?

Oral argument in Supreme Court at 10 AM ET in Louisiana v. Callais. Case presents question whether redistricting of congressional seats was unconstitutional racial gerrymander. 1/ Background on Louisiana v. Callais from @JCNSeverino: nationalreview.com/bench-memos/lo…
Briefs and other info on SCOTUSblog: scotusblog.com/cases/case-fil…

Unusual development in one of two Supreme Court cases on laws protecting women's sports from male athletes: Plaintiff (male identifying as female) in Little v. Hecox has dismissed with prejudice his claim against Idaho officials and now asks Supreme Court to vacate Ninth Circuit judgment in his favor and *not* to decide case on merits. 1/ Here is Hecox's Supreme Court filing (formally styled Suggestion of Mootness). supremecourt.gov/DocketPDF/24/2…

This Day in Liberal Judicial Activism—July 25
1973—In the midst of the Vietnam War, federal district judge Orrin Grimmell Judd issues an injunction (in Holtzman v. Schlesinger) ordering the military to refrain “from participating in any way in military activities in or over Cambodia or releasing any bombs which may fall into Cambodia.” The Second Circuit will block Judd’s injunction from taking effect, and the Supreme Court in early August will thwart Justice William O. Douglas’s effort to revive it. 1/ This Day in Liberal Judicial Activism—July 25
1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution. 2/

Two big Ninth Circuit rulings today:
1. Court rules that Oregon requirement that parents seeking to adopt a kid from foster care agree to "respect, accept, and support" kid's sexual orientation and gender identity violates the First Amendment. Opinion by (excellent Trump appointee) Judge Bress, joined (to my surprise) by Clinton appointee Hawkins. Bush appointee Clifton dissents.
Congrats, @ADFLegal, on yet another victory! Here's the opinion: cdn.ca9.uscourts.gov/datastore/opin…

This Day in Liberal Judicial Activism—July 14
2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to **misquote** Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences **would reach wise decisions**.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

"I would hope that a wise Latina woman with the richness of her experiences **would more often than not reach a better conclusion than a white male who hasn’t lived that life**."

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively **misquotes** Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.
1/ This Day in Liberal Judicial Activism—July 14
2021—In an apparent effort to evade en banc review, an Eleventh Circuit panel majority (in Adams v. School Board of St. Johns County) substitutes a new and very different opinion in place of its ruling eleven months earlier, but it continues to hold that a school board violated the Equal Protection rights of a transgender student when it barred her from using the boys’ restroom.

In her majority opinion, Judge Beverly Martin purports to apply intermediate scrutiny to a bathroom policy that “categorizes on the basis of sex.” But in what Chief Judge William Pryor in dissent calls “linguistic sleight of hand,” she uses sex as a synonym for gender identity and actually objects to the disparate impact that the bathroom policy has on the plaintiff student, who, unlike other students, can’t use a multi-stall bathroom that comports with her gender identity. Martin is really insisting that the Constitution requires that transgender students be given the unique right to use whatever bathroom they prefer.

The Eleventh Circuit will vote to rehear the case en banc and in December 2022 will rule that the Constitution and federal statutory law allow public schools to have separate bathrooms for students of each of the two sexes.
2/

This Day in Liberal Judicial Activism—July 12
2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, **there was concern about population growth and particularly growth in populations that we don’t want to have too many of.** So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.
1/ This Day in Liberal Judicial Activism—July 12
2016—Reversing the district court, a divided panel of the Tenth Circuit rules (in Planned Parenthood Association of Utah v. Herbert) that the Planned Parenthood Association of Utah is entitled to a preliminary injunction preventing Utah state agencies from implementing the governor’s directive that they stop channeling federal funds to PPAU. The “Factual background” in Judge Mary Beck Briscoe’s majority opinion reads in places like a Planned Parenthood press release. It even obscurely cites a Huffington Post article as authority for her dubious contentions. Worse, in determining that the governor acted in retaliation for PPAU’s exercise of its constitutional rights, Briscoe overrides the district court’s factual findings and draws highly speculative inferences that ignore the obvious reality that the governor was acting in response to concerns that PPAU was complicit in harvesting the body parts of aborted babies.

Three months later, Judge Neil Gorsuch, joined by three colleagues, will dissent from the Tenth Circuit’s denial of en banc review of Briscoe’s ruling.
2/

New in Confirmation Tales: Why State Supreme Court Justices Would Rather Be Federal Judges
You might think that being on a state supreme court—the highest judicial authority on what a state’s constitution and laws mean—might be the next best thing to being on the U.S. Supreme Court. But that’s not at all how many state supreme court justices have viewed the matter. 1/ I recall one of the early confirmation hearings for Bill Clinton’s lower-court nominations that I handled for Senator Orrin Hatch in 1993. One of the nominees was Nebraska supreme court justice Thomas Shanahan. I was struck that Shanahan, at age 59, was willing to be nominated for a federal district judgeship in Nebraska. Why, I wondered, would he trade a seat on Nebraska’s highest court for a seat at the bottom of the federal judicial hierarchy? 2/