Mark Joseph Stern Profile picture
Senior writer @Slate. Courts and the law. Three birds and one dog.
EricStoner Profile picture 🇺🇦🇺🇲☕️Coffee&Robots🤖🌊🇺🇦🇺🇲 Profile picture Ken Tancrous Ⓥ 🌱 eDo Profile picture Oy Vey Profile picture 33 subscribed
Sep 22 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.… 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 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 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 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.… 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.…
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 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."… 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.…
Jun 29 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"...… ... 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 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.… 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.…
Jun 28 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.…
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.…
Jun 27 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!… 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 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.… 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.… The evidence showed that ba...
Jun 16 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:… 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:…
Jun 16 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.…

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.
Jun 15 4 tweets 2 min read
YES! The Supreme Court rejects ALL challenges to the Indian Child Welfare Act, leaving the statute entirely intact.

A HUGE WIN FOR TRIBES… Justice Barrett's 7–2 opinion for the court holds that the Indian Child Welfare Act does NOT exceed Congress' constitutional authority or violate the anti-commandeering doctrine. She dismisses nondelegation and equal protection claims on standing.…
May 31 4 tweets 1 min read
Last thought on this dialogue: I stand by the headline. But for those who need a textualist translation, here's a few alts: "Sam Alito abandons 'foundational ethics principles and practices' to which he 'subscribe[d]' one month ago." Hope this helps!… Other alts:


May 31 4 tweets 2 min read
Here is the Oklahoma Supreme Court's 6–3 decision striking down the state's total abortion ban as well as its six-week "heartbeat" ban. (Dissents included.)… Image The Oklahoma Supreme Court's previous decision finding a right to life-saving abortions under the state constitution was 5–4. This time, the majority picked up a vote, because one justice (Darby) felt the outcome of the case was dictated by stare decisis.…
May 25 5 tweets 2 min read
The Supreme Court's second decision of the day is in Sackett, the Clean Water Act case. It's unanimous in result but very split in reasoning. Majority opinion by Alito.… Image The upshot of Sackett is that, by a 5–4 vote, the Supreme Court dramatically narrows the amount of wetlands covered by the Clean Water Act, encompassing ONLY those with a "a continuous surface connection" to larger bodies of water. Kavanaugh and the liberals disagree.
May 22 11 tweets 4 min read
Here's how the Supreme Court has empowered red states to simultaneously criminalize abortion, defund family planning, and redirect hundreds of millions of taxpayer dollars to crisis pregnancy centers—which trick patients out of receiving real health care.… Crisis pregnancy centers (CPCs) often have no licensed health care provider on staff, and offer no medical services other than a pregnancy test you could buy at the Dollar Store. They are designed to deceive patients into thinking they're real clinics, using unscrupulous tactics.
May 18 4 tweets 2 min read
In today's opinions, Gorsuch wrote a concurrence that Jackson joined, and later, Jackson wrote a concurrence that Gorsuch joined; this after the two teamed up in Bittner to apply the rule of lenity to civil penalties. Make of it what you will.… We also saw another split between the liberals today, with Sotomayor and Jackson splitting sharply from Kagan in the Andy Warhol case, complete with cutting snipes back and forth, like this one from Kagan directed at Sotomayor (!).… One preliminary note before...
May 18 4 tweets 2 min read
The Supreme Court's second decision is in the Andy Warhol case! Sotomayor's 7–2 opinion for the court holds that the fair use factor in question favors the photographer (Goldsmith), NOT the Andy Warhol Foundation.… When Goldsmith informed AWF... Kagan's dissent, joined only by Chief Justice Roberts, says the majority "hampers creative progress and undermines creative freedom."

"For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care."…
May 16 4 tweets 3 min read
These👇are the Democratic senators who just voted to nullify a modest D.C. police reform measure that outlaws chokeholds, limits the use of deadly force, and increases de-escalation training. The law has already been in effect for three years.… D.C.’s police accountabilit... In fairness, the DC Police Union's biggest complaint is that our police reform law gives the public greater access to disciplinary records and makes it easier for the MPD chief to fire officers who engage in misconduct or excessive force.… Although Republicans gestur...
May 15 5 tweets 3 min read
The Supreme Court takes up a case asking whether members of the House Oversight Committee have standing to demand information from executive agencies that's relevant to their oversight duties. D.C. Circuit said yes.

Also takes up an ACCA case.

Orders:… Image The ACCA question is really interesting: Does ACCA's 15-year sentence apply when (1) the defendant's "serious drug offense" was a crime when they committed it, but (2) was no longer a crime—because of legalization—by the time they commit the firearm offense that triggers ACCA?