Leah Litman Profile picture
Asst. Prof. @Umichlaw. Con law & fed courts. Cohost @StrictScrutiny_ blogs @shalltakecare co-founder @womenknowlaw. tweets about my dog 🐾 & enforcing the VRA.
Oy Vey Profile picture Wrick Flayer Profile picture PSBlaw Profile picture sbchristian Profile picture George Avraam Profile picture 6 added to My Authors
Jun 30 4 tweets 2 min read
Second, and final decision: Biden v. Texas (Remain in Mexico). The Chief Justice (5-4) writes that the Biden admin made a new policy on Oct. 29 (contra the insane CA5 ruling to the contrary) & that rescinding remain in Mexico doesn't violate the INA.
supremecourt.gov/opinions/21pdf… That this decision was 5-4 is frankly astonishing and deeply disturbing. Justice Barrett being w/Thomas, Alito, Gorsuch on this Q about (Democratic) executive policies is alarming.
Jun 30 8 tweets 3 min read
WV v. EPA; it's the Chief (this also means Chief has Remain in Mexico or it's per curiam): SCOTUS holds EPA doesn't have authority to create "generation shifting" requirements (that change methods a power plant uses). Relies on major questions doctrine.

supremecourt.gov/opinions/21pdf… The opinion is 6-3. This is, I guess, the Chief's effort to bring clarity to the major questions doctrine? (This will generate even more uncertainty/unpredictability/litigation against agencies):
Jun 30 5 tweets 1 min read
Happy retirement day to Justice Breyer, a true mensch. I've already shared my favorite memory of the Justice from my time clerking at the Court: And happy swearing in day to Justice Ketanji Brown Jackson/happy Independence Day weekend to Justice Breyer.
Jun 29 6 tweets 2 min read
OK v. Castro Huerta: Kavanaugh writes for 5-4 Court that states have concurrent jurisdiction to prosecute crimes committed by "non-Indians against Indians in Indian country."

This is a loss for tribal sovereignty & limits the Court's prior op in McGirt. supremecourt.gov/opinions/21pdf… Justice Gorsuch writes the dissent, joined by 3 democratic appointees.

This is a pretty bad sign about where Justice Barrett will be on tribal law/federal Indian law issues.
Jun 27 7 tweets 1 min read
extremely unclear to me why they need the extra days given that they do not feel bound to correctly recite facts or apply existing law and just seem to be willing to make shit up? like I could sit down now -- and in 280 characters -- write all of their remaining opinions.
Jun 27 4 tweets 1 min read
Second, but not last, #SCOTUS opinion is Concepcion: JUSTICE SOTOMAYOR writes (meaning it's good!!!!) that courts may consider intervening changes in facts or law since a defendant's original sentence when resentencing under the First Step Act supremecourt.gov/opinions/21pdf… The opinion is 5-4. Kavanaugh writes the dissent joined by the Chief, Alito, & Barrett
Jun 27 5 tweets 3 min read
first, but not last, #SCOTUS opinion is Kennedy v. Bremerton schools --> Justice Gorsuch writes for 6 that school can't discipline a coach for engaging in public prayer at public school football game. #SCOTUS says it has "abandoned" the Lemon test???

supremecourt.gov/opinions/21pdf… is this what the Court says to excuse itself from having to perform a stare decisis analysis about whether to overrule a case? we're "abandoning" it but not overruling it?

Justice Sotomayor dissents for 3 Democratic appointees
Jun 24 18 tweets 5 min read
IT'S DOBBS; JUSTICE ALITO HELD MAJORITY TO OVERRULE ROE supremecourt.gov/opinions/21pdf… Justice Thomas calls on SCOUS to overrule Griswold (right to contraception); Lawrence (invalidating anti-sodomy laws); Obergefell (marriage equality)
Jun 21 4 tweets 1 min read
Fourth, but not last, #SCOTUS opinion: Carson v. Makin, finding that Maine's exclusion of religious schools from state voucher program violates the free exercise clause (i.e., states can't refuse to fund religious schools that provide religious teaching)

supremecourt.gov/opinions/21pdf… This opinion is by the Chief --> any remaining opinion will be from the Chief or per curiam.
Jun 13 4 tweets 1 min read
Third, but not last, opinion is Johnson v. Arteaga-Martinez, holding that federal immigration law doesn't require the government to provide bond hearings to people detained more than six months.

supremecourt.gov/opinions/21pdf… The 8-1 opinion by Justice Sotomayor doesn't address the immigrant's constitutional challenge to that statutory regime. They just conclude the statutes don't require bond hearings.

Justice Breyer is the lone dissenter. (YOU GO STEVE)
Jun 13 5 tweets 2 min read
FIRST but not last #SCOTUS opinion is Denezpi v. US. SCOTUS holds federal prosecution isn't barred after tribal prosecution by Ute Mountain Ute Tribe because the federal government & Ute Tribe are distinct sovereigns w/distinct laws supremecourt.gov/opinions/21pdf… #SCOTUS rejects the argument that because there was federal involvement in the Ute prosecution (in the CFR courts) a subsequent prosecution by the federal government would be barred by the Double Jeopardy Clause
May 23 9 tweets 3 min read
Shinn v. Ramirez, & ... it's bad. #SCOTUS holds that a federal court may not conduct an evidentiary hearing in proceedings to challenge a conviction if the evidence was not developed in state court because state post-conviction counsel was ineffective.

supremecourt.gov/opinions/21pdf… UGH UGH UGH. The upshot of this decision: If the state appoints you a lawyer who is constitutionally ineffective at your trial; and then appoints you ANOTHER lawyer who is constitutionally ineffective to argue your trial lawyer was ineffective ... you're screwed.
May 16 5 tweets 2 min read
first, but not last, #SCOTUS op is Patel v. Garland (Barrett, 5-4), holding that federal courts lack jurisdiction to review fact findings relevant to proceedings about whether to grant discretionary relief in immigration cases. supremecourt.gov/opinions/21pdf… Justice Gorsuch wrote the dissent, which was joined by the 3 Democratic appointees.

this is ... bad, and worse than I thought it was going to be after argument.

(The Court adopted amicus's position -- not urged by the federal government because it is ... extreme.)
May 16 7 tweets 3 min read
ugh. SCOTUS is going to take up the “savings clause” issue — whether someone who was convicted of something that *wasn’t a crime* (because of an error in statutory interpretation) can challenge their conviction in a habeas proceeding (when the 2255 remedy doesn’t allow them to). The question in this case is whether, if someone is in jail for something that is determined **not to have been a crime**, they must stay in jail anyways.

Eight circuits say they don't have to. (As a court of appeals judge, Gorsuch said they do.)
May 11 9 tweets 3 min read
in general I don't respond to trolls.

but the idea that "well of course the court won't overturn griswold (the right to contraception) because some justices said it was settled in their confirmation hearings" is absurd on its face. (i won't link to it bc i don't do free p.r.)
May 8 4 tweets 2 min read
WaPo reporting that "a person close to the court's conservative members" says there's still a 5-member majority to overrule Roe -->

interesting as people speculate where the other leak(s) came from! (the WSJ leak was also probably a conservative.)

washingtonpost.com/politics/2022/… are the conservatives up in arms about the politico leak going to be up in arms about this too?

ted cruz, ron desantis, you up?
May 4 5 tweets 1 min read
yes, this. when I said A3P (chamberlains org) putting me on their list of “possible Biden judicial nominees” was generating threats that prompted me to take my work email + phone off the school website, they were … unmoved & an A3P person seemingly proudly RT-ed what I had said. (at some point you can and shoukd judge people based on who their fellow travelers are, and A3P is, well, … yikes).
Apr 28 6 tweets 1 min read
1st - but not last -- SCOTUS op: Chief Justice (6-3) writes Cummings v. Premier Rehab Keller that emotional distress damages are not available in suits under the Rehabilitation Act or Affordable Care Act

supremecourt.gov/opinions/21pdf… Because the opinion is from the Chief, the other opinions will also be from the Chief (who is the most senior).
Apr 27 4 tweets 2 min read
Today the Senate has hearings for some of the MOST AMAZING nominees this admin has put forward.

Read this paper from @NAACP_LDF about future Judge Natasha Merle's superb credentials. #ConfirmNatashaMerle naacpldf.org/press-release/… The Senate will also be hearing from future Judge Nusrat Choudhury (nominated to EDNY) AND future Judge Nancy G. Abudu (nominated to the 11th Circuit)!
Apr 26 4 tweets 3 min read
The 4th Circuit reinstated many (most) parts of the ex-public defender's sexual harassment lawsuit against judiciary officials.

A huge win by @JeannieSGersen, who argued the case; @happygolawky who filed an amicus brief; & Olivia Warren who led the way

drive.google.com/file/d/1rkC3Cr… Olivia Warren testified over two years ago about how inadequate the judiciary's procedures are for addressing workplace misconduct.

Today, the 4th Circuit panel agreed -- that, as applied, the policy was unconstitutional (a sign that ... it's not great!)

Apr 19 5 tweets 3 min read
this @mjschwartzman @NelsonTebbe @michlawreview review of @jamalgreene's "How Rights Went Wrong" is wonderful -- as is the book!!

michiganlawreview.org/journal/the-po… also be sure to check out @kateashaw1 reviewing Jesse Wegman on the Electoral College: michiganlawreview.org/journal/a-myst…