Ed Whelan Profile picture
work @EPPCdc; blog @NRO Bench Memos; Confirmation Tales substack; co-editor (1) SCALIA SPEAKS, (2) ON FAITH, (3) THE ESSENTIAL SCALIA
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Jan 23 4 tweets 1 min read
New in Confirmation Tales, Teddy Roosevelt Quickly Regrets Appointing Justice Holmes: “I could carve out of a banana a judge with more backbone"
In Roosevelt’s distinctively vivid and outsized way, he provides an enduring lesson in how presidents are disposed to misjudge Supreme Court candidates. 1/ Here's link to new Confirmation Tales post. 2/confirmationtales.com/p/teddy-roosev…
Jan 22 4 tweets 1 min read
On first read, President Trump's DEI executive order looks outstanding. Corporations and law firms that have been using DEI to engage in unlawful discrimination had better stop pronto. It's not just that President Trump is ending unlawful DEI in the federal government. He has also committed that his Administration will enforce non-discrimination laws against private actors (e.g., big business, Big Law) that engage in unlawful discrimination under the banner of DEI.

So, for example, any company that has been following Eric Holder's DEI advice (and overpaying him for the privilege) should quickly hire new counsel (outside Big Law) in order to get straight with the law.
Jan 17 8 tweets 2 min read
In a gross act of constitutional defiance, Biden is about to announce that he regards the ERA as having been lawfully ratified. Never mind that his own Department of Justice, Ruth Bader Ginsburg, and just about everyone else has recognized otherwise.
Jan 15 50 tweets 7 min read
Supreme Court hears oral argument today in Free Speech Coalition v. Paxton. Issue is whether age-verification law for pornography websites violates First Amendment. As WSJ explains in house editorial today, Court should rule that law is permissible. 1/ I hope to cover today's oral argument (which starts at 10 a.m.) in tweet thread. Here's a piece by my @EPPCdc colleague @ClareMorellEPPC that outlines issues. 2/claremorell.substack.com/p/what-to-expe…
Dec 12, 2024 5 tweets 2 min read
In my new Confirmation Tales post, I explore the history of recess appointments of federal judges. I found the results of my research more interesting than I expected, and I hope you will too. 1/ 2/confirmationtales.com/p/recess-appoi…
Dec 4, 2024 46 tweets 7 min read
I'll do a thread on oral argument today in U.S. v. Skrmetti. Begins at 10 a.m. ET, will probably run past noon. BTW, when Chief invites Chase Strangio to present oral argument, he will surely refer to Strangio as "Mr." No one on either side should make big deal of this, as Court practice allows advocates to select honorific.
Nov 25, 2024 4 tweets 1 min read
From today's ruling by Missouri court in Noe v. Parson: "The evidence at trial showed severe disagreement as to whether adolescent gender dysphoria drug and surgical treatment was ethical at all...." More from today's ruling by Missouri court in Noe v. Parson: "the credible evidence shows that a vast majority of children who are diagnosed with gender dysphoria outgrow the condition."
Nov 13, 2024 5 tweets 1 min read
Hope it's wrong, but I'm hearing through the grapevine about this bonkers plan: Trump would adjourn both Houses of Congress under Article II, section 3, and then recess-appoint his Cabinet. As predicate for Trump's exercise of adjournment power, one House of Congress would seek other House's consent to adjourn and be denied. So Speaker of House would need to be complicit in evisceration of Senate's advice-and-consent role.
Sep 19, 2024 8 tweets 2 min read
BREAKING: Federal prosecutor Tina Ansari, who is trying to put whistleblower Dr. Eithan Haim in prison, has been practicing law without a license. License was suspended on September 1. Image Counsel for Dr. Haim has just filed motion to punish prosecutor Tina Ansari for practicing law without a license. eppc.org/wp-content/upl…
Sep 4, 2024 5 tweets 2 min read
Tennessee’s Legitimate Interest in ‘Encouraging Minors to Appreciate Their Sex’
Biden administration argues in Skrmetti case that Tennessee's declared interest in “encouraging minors to appreciate their sex” is “illegitimate” because it supposedly “rests on ‘stereotypic notions’ about gender.”
As usual, Biden administration has things backwards. 1/nationalreview.com/bench-memos/te… It's transgender ideology that is built on stereotypes about what it means to live as a man or as a woman. When senior DOJ official says "Transgender men are men — they live, work and study as men," it’s impossible to even begin to make sense of that statement without adopting stereotypes of what it means to “live, work and study as men.” 2/
Aug 29, 2024 5 tweets 3 min read
In this week's Confirmation Tales post, I provide the answers to my trivia questions on baseball and the Supreme Court. If you haven't already tried to answer the questions, do so before peeking at the answers.
confirmationtales.com/p/answers-to-t… 1. 1. Two Justices have played baseball in the National League. Name them.
Answer: David Justice and Evan Justice.
confirmationtales.com/p/answers-to-t…
Aug 22, 2024 5 tweets 2 min read
This week in Confirmation Tales, Baseball and the Supreme Court: The trivia questions you've been waiting for. confirmationtales.com/p/baseball-and… 1. Two Justices have played baseball in the major leagues. Name them.
Aug 15, 2024 6 tweets 3 min read
New in Confirmation Tales, a look back at Left's first big fight against a GWB judicial nominee: "Left's Big Fight Against Nomination of Michael McConnell Fizzles" 1/
confirmationtales.com/p/lefts-big-fi… By 2001, Michael McConnell had established his reputation as one of America’s most outstanding constitutional scholars. The biggest reason that liberal activist groups opposed his Tenth Circuit nomination is that he was a vigorous and cogent critic of Roe v. Wade. 2/
confirmationtales.com/p/lefts-big-fi…
Jul 1, 2024 23 tweets 4 min read
Remaining #SCOTUS cases to be decided today:
1. Trump criminal immunity.
2. Pair of NetChoice cases presenting First Amendment challenge to state content-moderation requirements for social media.
3. Corner Post v. Federal Reserve--when does cause of action against agency accrue? Look for Trump immunity ruling to be issued last, as it is likely written by Chief.
Jun 29, 2024 4 tweets 2 min read
New from Confirmation Tales: 58-42 confirmation of Samuel Alito in 2006 is exact converse of Robert Bork's defeat in 1987. I take a look at what happened in the intervening two decades to account for the shift. 1/
confirmationtales.com/p/58-42 The easy answer is that Senate that defeated Bork had a 54-seat Democratic majority and that Senate that confirmed Alito nomination had a 55-seat Republican majority. That easy answer obscures an important development that helps explain *why* Republicans controlled the Senate for the Alito nomination: Republicans were winning the political battle over judicial philosophy. 2/
confirmationtales.com/p/58-42
Jun 28, 2024 12 tweets 2 min read
So here we go again. #SCOTUS rulings beginning in a minute or so. Today's #SCOTUS rulings:
1. City of Grant Pass v. Johnson: The enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. 6-3. Gorsuch majority. Libs dissent.
supremecourt.gov/opinions/23pdf…
Jun 27, 2024 7 tweets 2 min read
#SCOTUS rulings today:
1. Ohio v. Environmental Protection Agency: The applications for a stay are granted; enforcement of EPA’s rule against the applicants shall be stayed pending the disposition of the applicants’ petition for review in the D. C. Circuit and any petition for writ of certiorari, timely sought.
Gorsuch majority, 5-4. ACB with libs in dissent.
supremecourt.gov/opinions/23pdf… #SCOTUS rulings today:
2. Harrington v. Purdue Pharma: The bankruptcy code does not authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seek to discharge claims against a nondebtor without the consent of affected claimants.
Gorsuch majority, 5-4. Kavanaugh dissents, joined by Chief, SS, Kagan. Very cross-ideological.
supremecourt.gov/opinions/23pdf…
Jun 26, 2024 4 tweets 1 min read
#SCOTUS rulings today:
1. Murthy v. Missouri: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant. 6-3, ACB majority, SAA, CT, Gorsuch dissent. supremecourt.gov/opinions/23pdf… Alito dissent in Murthy: For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.
Jun 24, 2024 4 tweets 1 min read
Supreme Court is now showing Wednesday, Thursday, and Friday as announcement days. Good bet that it will finish term on Friday. There are 14 cases that remain to be decided. But that includes two pairs of cases (Moody/NetChoice and Relentless/Loper Bright) that might each be decided as one. So perhaps 12 sets of opinions to come, perhaps 4-4-4 on W-Th-F.
Jun 21, 2024 10 tweets 3 min read
#SCOTUS opinions today:
1. Texas v. New Mexico: Because the proposed consent decree would dispose of the United States’ Compact claims without its consent, the States’ motion to enter consent decree is denied. KBJ majority, 5-4. Gorsuch, Thomas, Alito, Barrett dissent.
supremecourt.gov/opinions/23pdf… 2. Department of State v. Munoz: A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country. ACB majority, 5-1-3. Gorsuch concurs in judgment. Libs dissent.
supremecourt.gov/opinions/23pdf…
Jun 20, 2024 6 tweets 2 min read
#SCOTUS rulings today:
1. Moore v. US: The MRT—which attributes the realized and undistributed income of an American-controlled foreign corporation to the entity’s American shareholders, and then taxes the American shareholders on their portions of that income—does not exceed Congress’s constitutional authority. Kavanugh majority. 7-2 on result. CT, Gorsuch dissent. supremecourt.gov/opinions/23pdf… #SCOTUS rulings today:
Moore: Nothing in this opinion should be read to authorize any hypothetical congressional effort to tax both an entity and its shareholders or partners on the same undistributed income realized by the entity. Nor does this decision attempt to resolve the parties’ disagreement over whether realization is a constitutional requirement for an income tax.