Outrageous.

https://twitter.com/kyledcheney/status/1942345612906594650

The lead count in Planned Parenthood's complaint is, believe it or not, bill of attainder. What more do you need to know about how baseless this complaint is?

Supreme Court summarily reverses a Fourth Circuit ruling that allowed prisoner to pursue a Bivens claim for damages against prison officials for alleged use of excessive force in violation of Eighth Amendment. No recorded dissent. In light of Skrmetti, Supreme Court GVRs petitions challenging crazy Fourth Circuit rulings that required health care plans to cover surgeries for gender dysphoria. "Imperial judging at its least defensible," wrote dissenting judge Wilkinson of those Fourth Circuit rulings.

This Day in Liberal Judicial Activism—June 29
1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.
1/4 This Day in Liberal Judicial Activism—June 29

Wonderful to see this one overruled.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade.

The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.

But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.”

In its 2022 ruling in Dobbs v. Jackson Women’s Health Organization, the Court will finally overrule Roe as well as this decision.

2/4

Justices announce opinions in reverse order of seniority, from KBJ to Chief. If I've guessed right on remaining assignments (not likely), that will mean:
1. ACB in Louisiana redistricting
2. Kavanaugh in FCC c. Consumers' Research (nondelegation doctrine)
3. Kagan in Braidwood Management (Appointments Clause)
4. Alito in Mahmoud (religious-liberty rights of parents of public-school students)
5. Thomas in Free Speech Coalition v. Paxton (Texas age-verification law for porn sites)
6. Chief in Trump v. CASA (nationwide injunctions against executive order on birthright citizenship) I now think that it's extremely unlikely that a justice will step down from the Court today or in the coming days.

#SCOTUS announcement session tomorrow at 10 ET. 10 cases remain. Look for 4 to 6 rulings tomorrow. Just a few minutes away from today's #SCOTUS rulings.

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…