I am going to try and add some value here, in light of the pushback I got for saying Obergefell v. Hodges is safe.
I am going to talk about "how to predict what SCOTUS will do in the future in politically salient cases".
Obviously, like all predictions, nothing will be 100%.
But the basic idea is "how do you actually gain some notion of what the Supreme Court is likely to do?".
Or another way of putting it is "how do we know which cases are safe and which ones are on the chopping block?".
And that latter way is a nice way of stating the question.
Jul 7 • 12 tweets • 3 min read
Folks, the reason i think Lia Thomas is a bad actor goes back to 2022. The first reporting about this had nothing to do with Riley Gaines, who swam for Kentucky and didn't meet Thomas until the nationals.
It had to do with Thomas' Penn teammates.
nypost.com/2022/01/27/tea…
That original January 2022 story was based on extensive reporting about what Thomas' teammates were saying. And it paints a very stark picture of a person, Thomas, who doesn't give a hoot about the fears or concerns of c i s women and only cares about herself.
Jul 5 • 19 tweets • 4 min read
The real, nonpartisan lesson of Trump v. DVD, the South Sudan deportation case, is that the Convention Against Torture system is really based on the assumption that people are going to be deported back to their homes. And it doesn't work well on third country deportations.
With respect to being deported back to your home, the system works well. You get a notice of deportation because you are illegally here, and you bring in witnesses and testimony and documents and show that you will be targeted for official torture if you are sent back home.
Jul 4 • 10 tweets • 2 min read
I will say one other thing on my mind about this Mamdani stuff, which is despite the Left's pose of being very class conscious, they really do not understand (or maybe do not care) about the connection between gaming affirmative action and similar systems, and class privilege.
I have said this before, that I knew some people who gamed affirmative action back in the day. People who had always called themselves white but had distant relatives who were HIspanic or Black and when college or job applications came around discovered the One Drop Rule.
Jun 30 • 11 tweets • 3 min read
Remember this? Justice Thomas getting mad at the rest of the Court for applying rules that he, in complete vanity opinions, performatively states he is too pure to believe in?
In MacRae v. Mattos, he is outraged about what he contends are massive, ongoing violations of free speech of public employees going on. They are losing their jobs because they speak on controversial topics. Sounds bad.
OK, here's my comprehensive Mahmoud thread. It's a terrible decision.
First, it creates massive privileges for religious objectors to sexual content, while leaving secular parents with the same objections out in the cold.
It flouts the rules of evidence and treats completely hypothetical classroom discussions as sufficient to trigger a free exercise violation and a court injunction.
One broader-than-Mahomoud take (and one that sounds a bit like Justice Thomas, if he were a Lefty instead of a Rightie)-- none of the Court's recent "free exercise" jurisprudence is textual. None of it is about the actual EXERCISE of religion.
To be clear, and I will concede, this is a bit of an overstatement. For instance, the expansion of the "ministerial exemption" is at least in some sense textually justifiable. After all, ministering is part of practicing a faith. (I'd still argue they take it too far, though.)
Jun 29 • 18 tweets • 3 min read
A quick thread on some democratic theory, to address some comments I got from both the far left and far right on my Supreme Court threads.
A lot of people have very inflated views of how much power judges have.
Before you talk about anything the Constitution requires, your first principle has to be "judges are unelected, politicians are elected". Seriously, learn that mantra. Live it. Eat it up.
It means that politicians have far more latitude than judges do.
Jun 27 • 10 tweets • 2 min read
I'm seeing the usual "SCOTUS will reverse itself on universal injunctions when the Democrats win the presidency", and no, I don't think they will. Indeed, while his name isn't in Barrett's opinion, you cannot possibly understand how we got to Trump v. CASA without Matt Kacsmaryk.
You might ask, "why would a conservative court be mad about Matt Kacsmaryk?".
Well, think about it for a second. Imagine you are a mainstream conservative Justice. You want to move the law to the right. You also have some principles. And you don't want to be seen as a hack.
Jun 19 • 6 tweets • 1 min read
I've seen some commentary about how SCOTUS "erased" trans people, said they shouldn't exist or don't exist, etc.
I think this is trolling for clicks. Whatever you say about yesterday's ruling, it was quite respectful.
For instance, NO Justice misgendered trans people.
No Justice went off on "mutilating kids" or any other sort of inflammatory rhetoric. The majority opinion referred to concepts like "gender affirming care" and described gender dysphoria as a real thing.
This is important. Think what Scalia would have written.
Jun 18 • 9 tweets • 2 min read
I think it is more likely to be the Washington v. Glucksberg of our time.
A movement with very compelling policy arguments but weak constitutional claims took a longshot claim to SCOTUS and established an unfavorable precedent that may hurt their stronger claims down the line.
BTW, it is fascinating to me how the "progressive legal movement" has forgotten Glucksberg as well as the history that gave rise to it. Glucksberg was the right to die case that was supposedly going to establish a constitutional right to assisted suicide. They lost unanimously.
Jun 9 • 6 tweets • 2 min read
on pronouns- the broader point i would make is that what you might call binary transition has 100+ years of medical data behind it. the treatments are pretty well established. we know what gender dysphoria is. etc.
OTOH there's no medical concept whatsoever of a "nonbinary".
A person who suffers gender dysphoria, either in childhood or adolescence, and goes to a doctor and seeks to transition, changes their name and pronouns, etc., is treating a medical condition.
A person who says "i reject the gender binary" is taking and ideological position.
Jun 6 • 5 tweets • 1 min read
OK, now my second tweet-- I think a lot of people on both the Left and the Right owe me an apology. I was lectured, called "my sweet summer child", etc., for saying that the courts have a lot of power to get the President to obey court rulings.
Specifically, one of many powers I identified was that courts would rule against the Administration in future court proceedings so long as courts were being disobeyed.
And another was that courts could subject the Administration to intrusive discovery.
BOTH happened here.
Jun 4 • 4 tweets • 1 min read
Not singling this person out, but this is a common, wrong view on the Right.
Temporary injunctions are about MAINTAINING THE STATUS QUO UNTIL A RULING. They are legal under law that is literally older than the US government.
Once they decided to get cute with Abrego Garcia and then tried to rush deportations before a judge could rule, well, that guaranteed almost every deportee could get a temporary injunction preventing removal. Because once removal occurs the White House may say its irreversible.
Jun 1 • 6 tweets • 2 min read
i'm not going to link to any of the stories about the trans athlete at the California state meet- she's 16 years old, leave her alone.
I will say, however, as a track fan, that a SOPHOMORE doubling with wins in the triple and high jump at the state meet has never happened before
high jump/triple jump is an incredibly unusual double at ANY track meet, let alone a state meet in a major state where athletes approach elite level and there has been specialization. and while sophomores win an event every now and then, this kind of performance is unprecedented.
May 30 • 12 tweets • 3 min read
A mildly annoying bit of jurisprudence. Justice Thomas takes positions, over and over again, that nobody on the Court agrees with and nobody ever will agree with, citing his own dissents again and again. One of those positions is that schoolchildren have no free speech rights. 1/
For instance, here's Thomas in Morse v. Frederick, the "Bong Hits for Jesus" case, concurring the speech was unprotected but objecting to SCOTUS applying the "Tinker standard" (the school free speech standard) because students have no free speech rights.
a simple way of describing the Harvard anti-semitism report is that there's a long tradition of anti-semitism among segments of the Left (as there is on the Right) but there used to be social opprobrium against people who expressed it. the social opprobrium has now weakened.
the way this has happened is through the power of the Palestine issue among Lefty coalitions. Palestinian advocates on the Left tend to be maximalists who see Jewish presence in historic Palestine as colonialism and violence against Jews a justified response of the occupied.
Apr 27 • 37 tweets • 7 min read
I have some not very organized thoughts about Alex Thompson's point about the press missing the Biden story. Maybe I should just list them.
1. Reporters rely on confidential White House sources to report on what's going on in the government.
And this means-- inevitably-- that reporters' relationships are going to be somewhat compromised. The way you get access is by being a mouthpiece. If you report on stuff the insiders don't want you to report on, you'll find yourself no longer getting your calls returned.
Apr 24 • 21 tweets • 4 min read
I'm seeing a lot of conservative discourse that treats the Montgomery County "parents rights" Supreme Court case as if it is perfectly obvious and how dare the state of Maryland have this clearly unconstitutional rule.
That discourse is wrong. This is a VERY tough case. 1/
To be clear, I think there are very strong policy arguments for allowing parents wide latitude to pull their kids out of classes that contain content they object to. I don't have a high opinion of parents who do this, but I nonetheless get the point. 2/
Apr 11 • 6 tweets • 2 min read
Back when all the smug types were telling me how the Trump Administration would just disobey every court order they didn't like, I pointed out that one weapon the courts had was issuing more onerous orders than they otherwise would.
This has now happened twice at SCOTUS.
First, when the Court held that Alien Enemies Act challenges had to be filed in habeas, it also said each noncitizen must get notice in advance and an opportunity to file a petition.
It is very uncommon in a denial of jurisdiction for the Court to make a ruling on the merits.
Apr 10 • 18 tweets • 4 min read
Justice Sotomayor's concurrence correctly cites the US Senate-ratified UN Convention Against Torture and the US statutes and regulations that implement it.
Let's do a thread that harkens back to my early career doing human rights cases, and the doctrine of "refouler". 1/
You will often hear people say that once the US government transfers a prisoner out of US custody, it has no further jurisdiction over it. As you can see from today's ruling, the Supreme Court is 9-0 on that not being true. The courts can require POTUS to try and get him back. 2/
