1st SCOTUS ruling today: FDA v. R. J. Reynolds Vapor Co. ACB majority, 7-2 (SS, KBJ in dissent). Retailers who would sell a new tobacco product if not for the FDA’s denial order may seek judicial review of that order under §387l(a)(1). supremecourt.gov/opinions/24pdf…

Ninth Circuit oral argument in Trump v. Newsom takes place today at 3:00 ET (noon PT). Livestreamed here. youtube.com/live/zEitAzKSI… Ninth Circuit panel in Trump v. Newsom consists of Judges Mark Bennett, Eric Miller, and Jennifer Sung. Trump appointed Bennett and Miller, Biden appointed Sung.
I see Miller as the key. Whichever way he goes will probably have the panel majority.

Outstanding Wall Street Journal house editorial: Donald Trump vs. His Own Judges.
I'll start with this nugget: Leonard Leo had nothing to do with Trump's nomination of the Court of International Trade judge who ruled against him on tariffs. Trump's own trade representative recommended him. 1/ More from WSJ: "President Trump is expert at downplaying his failures, but attacking his own success is something new.... Mr. Trump is attacking the group, and especially the man in Leonard Leo, that were vital to his first-term success on judicial nominations. Mr. Leo helped Mr. Trump pull together his list of potential Supreme Court nominees during the 2016 presidential campaign. The list was crucial in reassuring conservative voters that he could be trusted on judges."
Trump understood back then that he wouldn't have been elected w/o Leonard Leo's assistance. 2/

Maine legislator Laurel Libby and several of her constituents have filed an emergency application in Supreme Court seeking relief against outrageous action by House speaker that bars her from voting because she has spoken out against male athletes participating in girls’ sports. 1/ At the Speaker’s direction, the Clerk of the House has not counted a single vote that Libby has tried to register, and won’t do so for rest of Libby’s term. Her constituents have no say on the thousands of bills that will come before the House. The Speaker has also barred Libby from speaking on any topic. 2/

Lots of confusion in this @WSJopinion house editorial faulting Judge Xinis for seeking prompt info on Abrego Garcia. Perhaps worst is notion that retrieving deportee from prison contractor is complicated matter of "diplomacy." As @AndrewCMcCarthy has explained, Abrego Garcia is best understood as being in constructive American custody. nationalreview.com/2025/04/why-th…
wsj.com/opinion/kilmar… But maybe even worse is notion that Trump administration, having unlawfully deported Abrego Garcia a month ago, should have five days to provide elementary information to Judge Xinis.

Big 5-4 victory for Trump administration in Venezuela Alien Enemies Act case. (And not what I was expecting.) ACB and liberal justices in dissent.
supremecourt.gov/opinions/24pdf… 4-page per curiam opinion (for five justices):
1. We construe the TROs as appealable injunctions.
2. Challenges to removal under the Alien Enemies Act must be brought in habeas.
3. The detainees are confined in Texas, so venue is improper in D.C.
4. Detainees are entitled to notice and opportunity to be heard. ***"The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."***

New in Confirmation Tales: "Gang of 14 Agreement Preserves Senate Filibuster of Judicial Nominations"
“The nuclear option is gone for our lifetime,” crowed a “clearly euphoric” Democratic leader Harry Reid.
Eight years later, Reid himself would deploy the nuclear option, abolishing the filibuster of lower-court nominees and executive-branch nominees. 1/ In May 2005. the Senate prepared for a dramatic vote to abolish the filibuster for judicial nominations.
The stakes were high. If Frist succeeded, the Senate, with its 55 Republicans, could promptly confirm the dozen or so appellate nominees who had been held in limbo. At least as importantly, Bush would have an easy path to getting any Supreme Court nominees confirmed in the 109th Congress (2005-2006). And any justices or appellate judges who had been hesitating to step down out of fear that their seats would remain vacant would no longer have that concern.
Conversely, the consequences for Bush and Senate Republicans would be severe if Frist lost the vote on filibuster abolition. Democrats would be emboldened to expand their filibuster campaign more broadly, and the filibuster threat would weigh heavily over a Supreme Court vacancy. Conservative activists would react with rage against Republican senators who sank the cause. 2/

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/