Law peeps: have you ever found yourself changing your mind the right answer to a significant legal question? Which ones, and how did it happen? Especially curious w/r/t issues that code as political or ideological. I'll throw out two, one big picture and one more a category.

1. I used to think Washington v. Davis was wrongly—or at least too flatly--decided.

2. With specific presidential power claims, I regularly find myself more persuaded by retail statutory arguments the closer I look.

Barrett's concurrence in Biden v Nebraska is interesting + has lots of good stuff. But I don't think her core move works. At all. Curious for others' thoughts...if anyone even sees this 🫠

Her goal is to defend Major Questions Doctrine against charges of judicial activism. 1/ So the whole point of Barrett's opinion is to rebut charges that Major Questions Doctrine is judicial activism--a concern she acknowledges to be serious. The central move in her defense of MQD on that score is to argue that it is NOT a substantive canon. 2/

Strongly recommend this Andy Coan piece on Dobbs and moral pluralism in a shared constitutional polity. Per Coan, if we take the pro-life frame seriously, Dobbs was a “fundamentally ordinary” case. The key is what follows for a critical response. 1/ papers.ssrn.com/sol3/papers.cf… “Dobbs was wrongly decided, … gratuitously cruel, lacking in empathy, and poorly reasoned. But Dobbs is not illegitimate or lawless. It is a highly consequential, but fundamentally ordinary, example of the inextricable connections between morality and constitutional law.” 2/

I tend to take claims like these with a grain of salt.

But I just went line-by-line through the DeSantis education bill. And you guys, it’s *bananas*. A road map for wrecking one of our great state systems of higher education. 🧵 1/

https://twitter.com/jeremycyoung/status/1628870290745790464

Breathtaking control of viewpoint and content throughout all academic activity in the entire Florida system. All colleges and universities are forbidden to spend any money to fund pedagogy, programming, or activities that “espouse diversity, equity, and inclusion.”

I find myself in the unfortunate position of disagreeing w this essay from @WilliamBaude + Michael McConnell. And I want to explain why, more bc of what their Elections Clause arguments suggest about modern originalism than bc of anything distinctive I can add on the merits.

1/

https://twitter.com/WilliamBaude/status/1579797972522762240

Basically: North Carolina SCt struck down NC’s recent redistricting under the *NC* constitution. Challengers claim NC SCt can’t do this, bc *federal* constitution’s Elections Clause gives N.C. leg total power over elections except as limited by fed law 2/ brennancenter.org/our-work/resea…

Seeing lots of confident proclamations that Biden's loan forgiveness plan is executive branch lawlessness run amok. I don't get it--the confidence, that is. My current sense is that it'd likely be rejected by this Supreme Court, but that it's not an easy case on the merits. 1/ But don't forget: predicting what this (or, I suppose, any) court will do in an adjudicated case is not the same thing as asking "what's the best legal analysis?"
I'm offering this thread mainly to flag some resources I've found useful in trying to think all this through. 2/

Boring pedantry alert! Under current doctrine, the Commerce Clause clearly authorizes federal abortion legislation. Sure, the SCt could chuck the caselaw in the trash. But that’s what it would take: radical change—with implications far beyond abortion.🧵1/ The 1995 Lopez revolution imposed a new "economic" req't for CC jurisdiction. Basically, Congress can't regulate outside the stream of commerce unless whats being regulated is “economic”

Singing for friends on a plane? Regulable!
Singing for friends in my yard? Hands off! 2/

Justice Breyer is getting tons of outrage for his “stop politicizing nominations; ain’t nobody here but us jurisprudes” bit. And tbc both the substance and his timing deserve ALL the dunks.

But the whole convo is IMO mixing up v different things in v important ways. 1/ Breyer’s core claim is that, in his experience, judges take very seriously their oath to “administer justice faithfully.” He contrasts that to “politicians in robes”: judges focused on outcomes, policy agendas, party loyalty, and advancing a political mov’ts policy goals. 2/

This is an extremely thoughtful piece by a member of Fed Soc on its future—and its past. Well worth reading in its entirety. (Retorts will of course come to mind for many readers; David himself anticipates most of them.) 1/

https://twitter.com/DavidLat/status/1351536862641479682

David calls for some serious changes to current Fed Soc practices, which strike me as genuinely asking a lot of the organization as currently constituted. Two related thoughts come to mind, both extending the logic of David’s piece. 2/