Mike Sacks Profile picture
Politics & Law @Fox5NY. Lapsed Lawyer. Serial self-retweeter. Retired competitive air guitarist. @SammSacks’s husband. michael.sacks@fox.com
Joshua Cypess Profile picture Aviva Gabriel Profile picture 2 added to My Authors
6 Apr
Another anticipatory bit of trivia: Breyer’s confirmation kicked off a record 11 years of an unchanged Court.

Should Breyer retire this year, his successor’s confirmation stands a good chance start a new record-breaking run.
Thomas, turning 73 this summer, would become the oldest justice. Come fall he’ll hit his 30-year SCOTUS anniversary. If we’re to take early reports from his tenure seriously and he stays healthy, he’ll stick around for another 13 years.
(I, of course, remain shocked he didn’t learn the lessons of Scalia and Ginsburg and let McConnell ram through his replacement immediately after Barrett’s confirmation)
Read 5 tweets
6 Apr
Now that this thing is actually live I’ll say it again: doesn’t matter what your ideological priors are - if you don’t have Taney beating McReynolds/Field in the finals, you’re doing it all wrong
Me? I’ll have Taney over McReynolds because Field was at least on the right side of Slaughterhouse even though he was doing it for the wrong reasons, while McReynolds, however odious his person and wrong his views, didn’t, you know, write Dred Scott.
Another reason Field must fall to McReynolds:
Read 5 tweets
5 Apr
Thomas’s suggestion appears to have had its genesis in Richard Epstein’s comments in this FedSoc webinar from February fedsoc.org/events/is-comm…
This continues the left-right convergence on limiting Big Tech’s power. But this introduces a new difference among the many distinctions already dividing the two sides’ approaches...
Read 10 tweets
3 Apr
Owning the libs by...legislatively overturning Flood v. Kuhn, which libs would...celebrate for strengthening labor rights and vindicating Curt Flood, who was the Kaepernick of his time. Well done.
Douglas, Brennan, and Marshall - the Court’s three most liberal members - dissented from Flood v. Kuhn. Repping flood was Arthur Goldberg, who had been one of the Warren Court’s big liberals.
Then there was this story from The Brethren: ImageImageImageImage
Read 7 tweets
8 Mar
Every once in a SCOTUS justice picks one of their side's ideological issues over another, sometimes--but not always--to the benefit of the opposite side's preferred result.

Here's what the six conservative justices put at the top of their lists:
Roberts, with rare exception, puts his standing hawkishness over his substantive agenda. Proof: his first-ever solo dissent today was against an Evangelical Christian college student arguing a free speech violation; his vote in the Prop 8 case to the benefit of SSM in CA.
(Top of my head, Roberts rare exception assuming standing when he otherwise may not have: the Fisher affirmative action cases)
Read 12 tweets
21 Feb
The district court judge at the center of this story is 54. That alone means she’s not going to be a SCOTUS nominee, no matter what else she has going for her.
Influential members of Congress can pitch their preferred names all day long but sitting right by POTUS is a VPOTUS from a state where its highest court houses a 44yo black female justice who cut her teeth in the US Solicitor General’s office after clerking for Justice Stevens
And while Breyer could pull a Kennedy and put his thumb on the scales for his own former clerk, I think KBJ is more likely to get elevated to Garland or Tatel’s seat on the DC Cir than skip straight to SCOTUS
Read 7 tweets
13 Feb
Seems to me if nothing’s gonna get you the votes to convict, might as well get it over with and have Committees call witnesses as part of 1/6 investigation so Senate can pass COVID relief on schedule, then quickly get GOP to block voting rights bill to prompt filibuster nuke.
The trial was about seeing the impeachment process through to its finish. The evidence already presented was overwhelming. Most Republicans had already committed to “doesn’t matter, trial’s unconstitutional” as failsafe escape. Witnesses wouldn’t change that.
If the point is accountability, committee hearings can do that. Especially if they’re to factfind for the purposes of, say, a 14th Amendment Section 3 resolution against Trump, which would only require a majority vote:
Read 5 tweets
12 Feb
Note that this case only exists bc people got mad when SCOTUS OK’d execution of a Muslim without an imam by his side in a state that only provided Christian pastors so SCOTUS stopped a state with similar rules from executing a Buddhist, and so those states just barred all clergy
Read 9 tweets
10 Feb
Ambitious Senators' greatest refuge is also their worst fear: no one will ever remember them or what they do unless they become President.
And should they become President, no one will ever remember what they said or did as Senators.
All's to say: how any Senator votes on this impeachment trial won't haunt their historical record because, well, history will forget them. Instead, they will vote based on present political considerations and/or personal sense of right and wrong.
Read 4 tweets
7 Jan
Yeah, but it’s been a constant presence there one way or another since, say, 1877
This , for instance, only just came down
And down in the crypt the President of the Confederacy still stands
Read 6 tweets
6 Jan
The Grim Reaper coming now for Trump
"The voters, the courts, and the states have all spoken. They've all spoken. If we overrule them, it would damage our Republic forever."
McConnell: "The election actually was not unusually close. Just in recent history, 1976, 2000, and 2004 were all closer than this one. The electoral college margin is almost identical to what it was in 2016."
Read 13 tweets
6 Jan
Trump on his SCOTUS noms: "They rule against me so much. You know why? Because the story is I haven't spoken to any of them since virtually they got in. But the story is they're my puppet...they hate that it's not good on the social circuit..."
I worry there’s some misinterpretation of the trimmed-for-clarity-and-280-characters quote I tweeted above. So here’s the full one...
Read 5 tweets
6 Jan
This move also opens up a DC Circuit seat to elevate Judge Ketanji Brown Jackson so to better position her for Breyer’s seat
I also wouldn’t be surprised if Biden nominates SCOCA Justice Leondra Kruger for SG to better position her for Breyer’s seat, too. It’s what Obama did with Elena Kagan and LBJ with Thurgood Marshall.
KBJ and Kruger have been the clear frontrunners for Biden's big campaign promise
Read 4 tweets
6 Jan
McConnell’s gonna rain hell down on Trump now, and by that I mean when a reporter asks him “did Trump lose your Senate majority?” He’ll mumble, “Yes, I think that’s right,” and then everyone but Cruz, Hawley, and Tommy Tuberville will get in line and pretend Trump never happened.
Read 6 tweets
8 Dec 20
Gonna be wild when the Oracle's eyebeams turn his hopes at retaining the presidency into that scorched dude in the suit of armor Atreyu has to step over
Of course, Alito could just put this PA thing out of its misery by himself at this point, with the other Circuit Justices acting alone to put out the other fires coming up from the federal cases in the other states.
Read 4 tweets
8 Dec 20
Oh hey just a reminder that somehow after four years none of the three major Emoluments Clause lawsuits have yet to reach SCOTUS
Here’s the latest state of play as of August
My thoughts as these suits were being conceived days before Trump’s inauguration
Read 6 tweets
30 Nov 20
On Tuesday, SCOTUS will return to an issue it heard and then dodged nearly a decade ago: whether corporations can be held liable for human rights abuses abroad supremecourt.gov/search.aspx?fi…
The justices first agreed to take up the issue in 2011, when the Citizens United ruling was still fresh in peoples' minds. I was a baby professional journalawyer and wrote about it.
Here's what I wrote on the eve of the oral argument in 2012:
Read 10 tweets
23 Nov 20
Vice Chair Aaron Van Langevelde, one of the MI Board of State Canvassers' two Republicans, apparently committing to vote to certify state's results for Biden:

"We have a duty to certify based on these returns, and we are limited to these returns."

That's ballgame.
Now it looks like they're just gonna hear lots and lots and lots and lots of public comment before they actually certify.

If you still want to watch, here is the link:
Based on his questions to MI election law expert and Detroit election official, Norman Shinkle (R) appears the lone vote against certification, seems to want to delay for full 40-day window based on conspiracy theories and unfounded suspicions of foul play in Detroit
Read 7 tweets
23 Nov 20
Judge Brann remembered, fondly...and so will the 3rd Circuit and SCOTUS.
Ironies abound:

1) Trump team wants opportunity to present evidence yet couldn’t plead sufficient facts to survive motion to dismiss, and

2) They seek salvation from the same conservative legal movement that heightened the liberal M2D standard Trump *maybe* could have survived
Read 4 tweets