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…

#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.

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.

#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…

#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.

New in Confirmation Tales: "John Kerry Yodels for Alito Filibuster"
Inspired by Otter in Animal House, Kerry decides that battle against Alito nomination absolutely requires a really futile and stupid gesture. 1/
confirmationtales.com/p/john-kerry-y… Democratic leader Harry Reid recognized that there was no point in fighting a losing battle on a filibuster of Alito. Such a battle would pit Democrats against each other. 2/
confirmationtales.com/p/john-kerry-y…

Today's #SCOTUS opinions:
1. United States Trustee v. John Q. Hammons: Prospective parity is the appropriate remedy for the short-lived and small disparity created by the fee statute held unconstitutional in Siegel. (Whatever that means.) KBJ 6-3 majority. Gorsuch, Thomas, Barrett dissent.
supremecourt.gov/opinions/23pdf… 2. Campos-Chaves v. Garland: Because each of the aliens in this case received a proper §1229(a)(2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii). Alito majority. 5-4, with Gorsuch joining libs in dissent.

supremecourt.gov/opinions/23pdf…

Some comments on today's unanimous Supreme Court ruling on standing in FDA abortion-pill case.
1. Ruling is no surprise. Court telegraphed result way back in April 2023, when it took extraordinary action of staying district-court ruling through entirety of appellate process. This was even before Fifth Circuit ruled on merits. So Court clearly had grave concerns about standing. No recorded dissent. 2. Widespread claim that Court ruling "ensures access" to abortion pill is wrong in two large respects: (a) States have authority to bar abortion, including via abortion pill. FDA approval is just a federal permission slip. It doesn't override state laws. (b) Federal Comstock Act itself criminalizes sending abortion drugs by mail or common carrier. And that's true irrespective whether the abortion that drug is being used for is lawful or unlawful under state law. (To be sure, others contest these points. It's enough to say here that today's ruling doesn't speak to these questions.)
nationalreview.com/bench-memos/am…

#SCOTUS rulings today:
1. FDA v. Alliance for Hippocratic Medicine (abortion-pill case): Plaintiffs lack Article III standing to challenge FDA’s actions regarding the regulation of mifepristone. Kavanaugh opinion. Unanimous. supremecourt.gov/opinions/23pdf… Result in FDA case was foretold by Court's grant of emergency stay even before Fifth Circuit ruled.