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Mark Joseph Stern Profile picture
Mark Joseph Stern
@mjs_DC
Senior writer @Slate. Courts and the law. Three birds, one dog, one baby. mjs_dc@threads.net
EricStoner Profile picture 🇺🇦🇺🇲☕️Coffee&Robots🤖🌊🇺🇦🇺🇲 Profile picture Ken Tancrous Ⓥ 🌱 eDo Profile picture Oy Vey Profile picture 35 subscribed
Apr 1 • 5 tweets • 2 min read
Today's decision effectively means that abortion is now illegal in Florida beyond six weeks, before most people know they're pregnant.

BUT: The citizens of Florida will have a chance to enshrine permanent abortion protections via ballot initiative in November. Note that the Florida constitution already provides explicit protections for the "right to privacy." For decades, the Florida Supreme Court held that this guarantee protected access to abortion. The conservative majority just overturned all those precedents.
Mar 15 • 4 tweets • 2 min read
The Supreme Court's third and final opinion of the day is in Pulsifer v. U.S. In a 6–3 opinion, Justice Kagan reads the First Step Act's safety-valve provision narrowly, to prevent many defendants from obtaining relief. Gorsuch, Jackson, Sotomayor dissent. supremecourt.gov/opinions/23pdf… Today's decision in Pulsifer will be a grave disappointment to many, many individuals seeking relief under the First Step Act from harsh mandatory minimum sentences. It shrinks the law's safety valve by reading the word "and" to mean, in effect, "or." Unfortunate in my view.
Mar 5 • 9 tweets • 2 min read
The five-justice majority's opinion in the Trump ballot removal case has a lot of ambiguous language that leaves many questions unresolved. How you read that language, of course, determines how far you think the majority goes to dismantle the insurrection clause. It's debatable! I tend to think the three liberals are correct that "the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office."

Reading the opinion that way, you easily see how it forecloses any enforcement of the insurrection clause.
Mar 4 • 4 tweets • 1 min read
If you double click where it says "JJ." at the top, then copy and paste it, that line reads: SOTOMAYOR , J., concurring in part and dissenting in part.

And if you do a control-F search for "SOTOMAYOR , J., concurring in part and dissenting in part," it highlights that same line. Image It looks like the liberals' opinion was originally styled as a partial dissent written by Justice Sotomayor, but got changed to a concurrence in the judgment authored jointly by all three liberals. supremecourt.gov/opinions/23pdf…
Mar 4 • 6 tweets • 3 min read
🚨The Supreme Court overturns the Colorado decision removing Trump from the ballot, holding that only Congress can enforce the 14th Amendment's insurrection clause against federal candidates. supremecourt.gov/opinions/23pdf…
Image Despite the unanimous outcome, the reasoning is deeply fractured. The three liberal justices are furious that the majority went too far, attempting "to insulate all alleged insurrectionists from future challenges to their holding federal office." supremecourt.gov/opinions/23pdf…
Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these ...
Feb 21 • 4 tweets • 2 min read
The Alabama Supreme Court ruling that embryos are legally children is worse than a lot of coverage implies. The majority and the chief justice suggest that EVEN IF the Alabama legislature attempts to re-legalize IVF, the state constitution will forbid it. slate.com/news-and-polit…
In a concurrence, however, Chief Justice Tom Parker spelled out the implications. The people of Alabama, he declared, have adopted the “theologically based view” that “life cannot be wrongfully destroyed without incurring the wrath of a holy God.” (If the U.S. Supreme Court hadn’t demolished the establishment clause, this opinion would surely violate it.) As a result, Parker continued, the courts have an affirmative duty to protect “the unborn,” including embryos. Any law that “risks the deaths of these little people” is constitutionally suspect. Courts may not engage in the business of “ca... Instead, the Alabama Supreme Court—and, more explicitly, Chief Justice Parker—laid out an altered version of IVF to protect the dignity of "extrauterine children" (i.e., embryos).

It would be slower, less effective, more painful, and WAY more expensive. slate.com/news-and-polit…
Parker noted that Italy enshrined a similarly restrictive approach into law in 2004. Curiously, though, he failed to note that the country overturned the law five years later because it was a miserable medical failure. It has never been widely practiced in the United States for the same reason. Collura told me that Parker’s approach would radically reduce the quality of Alabama patients’ treatment while increasing the cost exponentially. Why? IVF patients would have to accept the transfer of a single low-quality embryo that is certain to fail—and to do so one embryo at a time. Each transfer...
Jan 29 • 5 tweets • 2 min read
Here's the PA Supreme Court's 219-page opinion declaring that (1) abortion is a fundamental right under the state constitution's right to privacy; and (2) abortion bans discriminate on the basis of sex under the state constitution's equal rights amendment. pacourts.us/assets/opinion… Here's Justice Wecht's concurring opinion, which sharply criticizes Alito's opinion in Dobbs and explains why the PA Constitution provides far greater protections for women's autonomy and equality. pacourts.us/assets/opinion…
Whatever one thinks about the role of history and tradition in affording rights to women under the United States Constitution, the Pennsylvania Constitution’s ERA did away with the antiquated and misogynistic notion that a woman has no say over what happens to her own body.274 The right to reproductive autonomy originating in Article I, Section 1 and in the non-discrimination guarantee of Article I, Section 26 likewise are not constrained by federal law. These constitutional provisions protect Pennsylvanians from the powers of the state, and the state bears the burden of satisfying the mean...
Dec 22, 2023 • 6 tweets • 3 min read
Wisconsin Supreme Court holds that the current legislative maps violate the state constitution’s requirement that all districts be “contiguous.” A 4–3 split, as expected, with Judge Janet Protasiewicz casting the key vote. New maps required for 2024. wicourts.gov/sc/opinion/Dis…

Image
Image This decision does NOT affect Wisconsin’s congressional maps, i.e., House districts. It involves only the state legislature. Still a really big deal.

Judge Janet Protasiewicz basically ran on delivering this decision to the people. wicourts.gov/sc/opinion/Dis…
Dec 20, 2023 • 5 tweets • 2 min read
Since 2016, many conservatives have insisted that the U.S. is not a democracy, but a "republic" where the president is ultimately chosen by states.

Within that system, it seems absurd to say that states can't decide candidates are ineligible and disqualify them from the ballot! If states hold primary authority over federal elections, and have immense leeway to decide how presidential electors are appointed, it strikes me as obvious that states can disqualify federal candidates who are constitutionally ineligible.

Gorsuch said so on the 10th Circuit! Image
Sep 22, 2023 • 5 tweets • 2 min read
Judge Matthew Kacsmaryk refuses to grant relief to Texas college students who may be punished for hosting a drag show.

His condemns drag as “vulgar and lewd” “sexualized conduct” that harms children and is likely unprotected by the First Amendment. storage.courtlistener.com/recap/gov.usco… Kacsmaryk’s conclusion that drag is probably NOT protected by the First Amendment conflicts with decisions from Texas, Florida, Tennessee, and Montana which held that drag is constitutionally protected expression.

It also bristles with undisguised hostility toward LGBTQ people.
Aug 8, 2023 • 6 tweets • 3 min read
NEW: Florida's Orange County Public School system announces that, because of new Florida laws, trans teachers can't use their preferred pronouns or honorifics (Mr./Ms.) at school.

Trans teachers and students can't use the bathroom that aligns with their gender identity, either.

Condensed Guidance House Bill 1069 Regarding Pronouns and House Bill 1521 Regarding Restrooms All Principals Technical College Directors - please distribute a copy of this memorandum to all employees and or contractors who work on your school site. In the 2023 Legislative session, the Florida Legislature passed House Bill 1069 regarding pronouns. The Legislature also passed House Bill 1521 regarding restrooms. This memorandum will provide guidance on both laws below. House Bill 1069 (§1000.071, Fla. Stat.) This law deals with the definition of sex and usage of pronouns. The bill requires as...
Usage of Personal Titles and Pronouns Questions have arisen about whether a parent can approach an employee and ask the employee to utilize a pronoun which does not correspond with the student's biological sex at birth. The State Board of Education has not given guidance on this precise question. An educator cannot solicit a child's pronouns, as this is directly prohibited by law - a parent would have to approach the educator about utilization of a pronoun differing from the child's biological sex at birth. Until further guidance is given by the State, I would recommend that educators conce...
To "assist or chaperone a child under 12, an elderly person..., a person with a disability..., or a person with a developmental disability..."; "For law enforcement or governmental regulatory purposes"; "For the purpose of rendering emergency medical assistance or to intervene in any other emergency situation where the health or safety of another person is at risk"; "For custodial, maintenance or inspection purpose, provided that the restroom or changing facility is not in use". "If the appropriate designated restroom or changing facility is out ... Under the new guidance, transgender teachers in Florida's Orange County Public School system MUST use the pronouns and titles that correspond to their "biological sex" as assigned at birth. So, for instance, a transgender woman must go by "he/him" and "Mr." in the classroom.
Aug 1, 2023 • 9 tweets • 2 min read
Rarely will you read a Supreme Court opinion that is not, at a minimum, "defensible." That's because smart lawyers have been paid large sums to craft arguments that sound persuasive, and the justices excel at adapting such arguments into a jurisprudence that *feels* reasonable. SCOTUS journalism is challenging because, at this level, both sides have all the resources and brainpower necessary to construct a compelling case for their view of the law. Often, a reasonable person could read both sides' briefs and easily conclude that both sides are correct.
Jul 25, 2023 • 6 tweets • 2 min read
Lorie Smith and her lawyers at Alliance Defending Freedom repeatedly told the Supreme Court that she had never, ever made a wedding website, because she was afraid a same-sex couple might then request her services.

That was a lie. newrepublic.com/article/174440… The wedding website that Lorie Smith DID make was scrubbed from the internet, though some of it can still be seen via the Wayback Machine. More great reporting on the lies of 303 Creative from @melissagira. https://t.co/TaiJfjZ7iwnewrepublic.com/article/174440…
In 2015, a web designer named Lorie Smith featured the wedding website in her portfolio of recent work—you can still access an archived copy of Smith’s site on the Wayback Machine. But you won’t find the wedding website in Smith’s live online portfolio anymore. The page detailing her role in the wedding website’s creation was removed some time before she filed a legal challenge—one that claimed she was unable to enter the wedding website business because Colorado’s anti-discrimination law would compel her to create same-sex wedding websites. The wedding website Smith made before she filed h...
Jun 30, 2023 • 6 tweets • 3 min read
The Supreme Court's first decision is 303 Creative. Justice Gorsuch's 6–3 opinion holds that the First Amendment bars Colorado from "forcing a website designer to create expressive designs speaking messages with which the designer disagrees." supremecourt.gov/opinions/22pdf… Justice Gorsuch's opinion for the court says the Colorado non-discrimination law cannot be applied to Lorie Smith under precedents like Boy Scouts v. Dale, Hurley, and Barnette, because it would compel her to engage in speech with which she disagrees. https://t.co/wuHsotWzaysupremecourt.gov/opinions/22pdf…
Jun 29, 2023 • 9 tweets • 2 min read
This is terrific reporting from @melissagira. I do not, however, believe it will make any difference to SCOTUS, for a few reasons.

First: This wasn't really a request for Smith to make a website, but a vague note about wanting "some design work done"...
newrepublic.com/article/173987… ... specifically, design work for "invites" and "placenames" at a wedding, with the hazy possibility of website work in the future.

Perhaps for that reason, ADF did NOT cite this (apparently fake) note in its briefs to the Supreme Court, or at oral argument—it was a non-factor.
Jun 29, 2023 • 8 tweets • 5 min read
The Supreme Court's third opinion is in the affirmative action cases. Chief Justice Roberts' opinion for the court holds that Harvard and UNC's race-conscious admissions policies violate the equal protection clause. supremecourt.gov/opinions/22pdf… The UNC affirmative action decision predictably splits 6–3, with all conservatives in the majority. The Harvard case splits 6–2, because KBJ recused.

Chief Justice Roberts' opinion seemingly forecloses any meaningful racial considerations in admissions. https://t.co/Gxc0jXmOM6supremecourt.gov/opinions/22pdf…
Jun 28, 2023 • 9 tweets • 5 min read
Judge Carlton Reeves has issued his decision in the felon-in-possession case. He rules that, under Bruen, permanently disarming people convicted of felonies violates the Second Amendment. The 77-page decision is absolutely fascinating. https://t.co/quWEM5iwXQs3.documentcloud.org/documents/2386…
Judge Reeves had asked both the Justice Department and the defendant whether he should appoint a historian to assess the constitutionality of felon-in-possession laws. Both said no, so he did not. That's important background here. slate.com/news-and-polit…
Jun 27, 2023 • 4 tweets • 1 min read
WHOA! The Supreme Court decides Moore v. Harper, holding that the case is not moot and REJECTING the independent state legislature theory! supremecourt.gov/opinions/22pdf… Chief Justice Roberts' opinion for the court holds that state legislatures do NOT have plenary authority over election law, and that federal courts do NOT have freestanding authority to strike down election laws that ostensibly conflict with the state legislature's preferences.
Jun 20, 2023 • 4 tweets • 3 min read
Here is Judge Moody's decision permanently enjoining Arkansas' ban on gender-affirming care for minors, finding that it violates equal protection, due process, and free speech. wp.api.aclu.org/wp-content/upl… Plaintiffs bring their clai... Judge Moody held an eight-day trial and heard lengthy testimony in the case; he includes extensive factual findings in his opinion explaining why Arkansas' justifications for the transgender health care ban do not survive meaningful scrutiny. wp.api.aclu.org/wp-content/upl… The evidence showed that ba...
Jun 16, 2023 • 4 tweets • 2 min read
Everyone loves speculating about the source of Gorsuch's deep passion for Native rights! Here are some of my favorite pieces on the topic prompted by yesterday's ICWA decision.

From @ElieNYC, exploring why Gorsuch's empathy doesn't extend to other groups: thenation.com/article/societ… From @lawrencehurley, noting how Gorsuch's impassioned writings about the persecution of Native peoples in America echoes the work of historians who are often deemed unduly "woke" by the right: nbcnews.com/politics/supre…
Jun 16, 2023 • 4 tweets • 2 min read
The Supreme Court's first opinion of the day is Lora v. U.S. Justice Jackson's unanimous opinion for the court holds that sentences imposed under §924(j) can run concurrently or consecutively with another sentence. supremecourt.gov/opinions/22pdf…

More opinion(s) to come. JUSTICE JACKSON delivered t... This is good news for people sentenced under this law, including the defendant, because it means courts are not obligated to run sentences consecutively (i.e., "stack" them atop one another)—multiple sentences can run at the same time.