By a vote of 5 to 4, the Supreme Court has denied the Trump administration's request that it vacate a district-court order requiring disbursements of foreign development assistance funds. Order calls for district court to clarify what it is ordering government to do. 1/ Justice Alito, joined by Thomas, Gorsuch, and Kavanaugh, vigorously dissents in 7-page opinion, says he is "stunned" that majority allows a "single district-court judge who likely lacks jurisdiction [to] have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars." 2/

Awesome letter of resignation by Hagan Scotten, lead prosecutor in the Eric Adams case. Scotten, BTW, is recipient of two Bronze Stars and former law clerk to Chief Justice Roberts and then-D.C. Circuit judge Kavanaugh. 1/ Adams prosecutor Scotten tells Emil Bove that Bove's first reason for motion to dismiss "is so weak as to be transparently pretextual" and second reason is "worse": "No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives."
And then this: "If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me." 2/

On the Rule of Law and Presidential Defiance of Judicial Orders
Some thoughts of mine on the topic. Link to blog post at end of thread.
1. It's not defiant, or even remarkable, for the federal government to decline to comply with an order while it seeks emergency relief from that order. 2. I do not hold an absolutist position against a president’s sustained refusal to comply with a court order. My position is instead that rule-of-law considerations in our constitutional system generally call for a very strong presumption in favor of executive-branch compliance with federal court orders. Truly extraordinary circumstances might well overcome that presumption.

New in Confirmation Tales, "William Pryor's Gamble on Recess Appointment Pays Off: Liberal Democrats' abortion politics backfires"
In 2004, George W. Bush rescued William Pryor from filibuster limbo by recess-appointing him to Eleventh Circuit. 1/ Pryor’s judicial career might well have ended when his recess appointment expired at the end of the Senate’s 2005 session. But that’s not at all how things turned out. The extraordinary measures by liberal Democrats to block Bush’s judicial nominees backfired on them. Pryor’s blunt and direct testimony on Roe v. Wade and abortion had the ironic effect of ensuring that he was ultimately confirmed. 2/

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…

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.

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.

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…

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…

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.

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...."

https://twitter.com/benryanwriter/status/1861117622051336339

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."

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.

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. Counsel for Dr. Haim has just filed motion to punish prosecutor Tina Ansari for practicing law without a license. eppc.org/wp-content/upl…

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/

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…

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.

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…

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.

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

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…

#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…